Congressional Record: May 22, 2000 (House)
Page H3496-H3509
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2001
The SPEAKER pro tempore. Pursuant to House Resolution 506 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the further consideration of the bill,
H.R. 4392.
[...]
Amendment No. 1 Offered by Mr. Roemer
Mr. ROEMER. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Roemer.
At the end of title III add the following new section (and
conform the table of contents accordingly):
SEC. 306. ANNUAL STATEMENT OF THE TOTAL AMOUNT OF
INTELLIGENCE EXPENDITURES FOR THE PRECEDING
FISCAL YEAR.
Section 14 of the National Security Act of 1947 (50 U.S.C.
404i) is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following new
subsection:
"(c) Annual Statement of the Total Amount of Intelligence
Expenditures for the Preceding Fiscal Year.--Not later than
February 1 of each year, the Director of Central Intelligence
shall submit to Congress a report containing an unclassified
statement of the aggregate appropriations for the fiscal year
immediately preceding the current year for National Foreign
Intelligence Program (NFIP), Tactical and Intelligence and
Related Activities (TIARA), and Joint Military Intelligence
Program (JMIP) activities, including activities carried out
under the budget of the Department of Defense to collect,
analyze, produce, disseminate, or support the collection of
intelligence.".
Mr. ROEMER. Mr. Chairman, I look forward to the debate on this
particular issue.
First of all, I want to reiterate to the gentleman from Florida (Mr.
Goss) and the gentleman from California (Mr. Dixon) that I rise in
strong support and bipartisan support of this bill overall. I do,
however, bring up one consideration as amendment on this bill, and that
is we do not want to reveal agency operations, we do not want to reveal
any individual agency budgets, and we do not want to reveal spending on
any kind of specific programs.
Given those parameters, what this amendment argues is for one ray of
sunshine, one simple disclosure of the aggregate funding of all
intelligence activities for fiscal year 1999. Not this year's request,
not this year's budget, but 1999's budget.
We do that in light of the fact, and I stress to my colleagues, that
the intelligence community has voluntarily disclosed the 1998 and the
1997 budgets, so we are simply saying that this one ray of sunlight
comes down for the taxpayer to have some kind of sense of what the
overall budget is for our intelligence community.
Now, this amendment is cosponsored by my good friend the gentleman
from Virginia (Mr. Moran), it is cosponsored by my friend the gentleman
from Oregon (Mr. Blumenauer), it is cosponsored by my friend the
gentleman from Washington (Mr. Smith), and, I think most importantly,
it is supported by my ranking member, who I have the deepest respect
for, the gentleman from California (Mr. Dixon).
The organizations that are for this ray of sunshine, for a little bit
of accountability in disclosure, the organizations that have written us
letters on this, include the Taxpayers for Common Sense, Citizens
Against Government Waste, the Council for a Livable World, the Center
for Defense Information, the Center for International Policy, and the
list goes on and on.
But I think one of the most compelling, one of the most compelling
reasons to do this, Mr. Chairman, is a report that came out in 1996 by
people
[[Page H3499]]
who go over these individual budget levels throughout the intelligence
community, line-by-line, program by program, SAP by SAP, special access
program by special access program, and they have analyzed this. And
they are such people as the former Defense Secretaries, Mr. Brown and
Mr. Aspin. They recommended that we disclose not just the current year,
but the next year's budget. This was in the Aspin-Brown report in 1996.
So they asked for a few rays of sunshine on this report, when all I am
simply asking for is one on the 1999 budget funding level.
I think this is common sense, I think this will help us get a little
bit more accountability with the intelligence community. I think this
informs the taxpayer of an overall budget, what might be going on in
terms of our intelligence operations. And I think one of the most
really convincing arguments for this, Mr. Chairman, is that we have
right here the Intelligence Authorization Act for Fiscal Year 2001. And
in this we have listed, which is a public document, Mr. Chairman, this
is an unclassified document, they go through here and list Rivet Joint
Mission Trainer, $15.5 million plus-up; the Manned Reconnaissance
Systems, $8 million plus-up; the F-18 Shared Airborne Reconnaissance
Pod, $18 million plus-up; and on down, over page after page after page,
a public document.
We are not even asking for that. We already disclose that in this
report. We are asking for the aggregate level, not broken down by
agency, for 1999. Not individual reports, not individual line items,
like we do in the Defense Department budget, like we did last week,
item by item, of helicopters and ships and personnel and operations and
maintenance in our Defense budget. We are not calling for any of that
in this budget; simply for an aggregate level.
Finally, Mr. Chairman, let me say that there are books out there that
talk in explicit and sensitive detail about some of our very sensitive
operations.
The CHAIRMAN. The time of the gentleman from Indiana (Mr. Roemer) has
expired.
(By unanimous consent, Mr. Roemer was allowed to proceed for 1
additional minute.)
Mr. ROEMER. Mr. Chairman, there are books out there that you can pick
up on the best seller list. I am not confirming, I am not denying what
they say and what accuracy they have in a book written by Tom Clancy,
or a book written called Blind Man's Bluff on submarines. But certainly
some of these books that are written by former CIA people or are
written by journalists and reporters, that talk in intimate detail
about some of these programs, I do not support the release of that kind
of information. But we are simply saying, Mr. Chairman, one ray of
sunshine for disclosure, for public accountability and for information
for the taxpayer, so that they have one grain of information to look at
as they assess what our priorities should be with the intelligence
budget as it relates to the overall budget.
Mr. SISISKY. Mr. Chairman, I rise in opposition to the amendment
offered by the gentleman from Indiana (Mr. Roemer).
Mr. Chairman, I regret really having to oppose this amendment offered
by my three very good friends and colleagues, but I do not believe it
makes sense to force, and the word is "force," the executive branch
to declassify the aggregate amount appropriated for intelligence
activities each year. If there is one item of information a country
should not disclose to its adversaries, it is the amount of effort
being made each year to discover those adversaries' plans and
intentions, their secrets and vulnerabilities.
Much of the business of intelligence is expensive, especially when it
comes to our government's amazing technical activities. Yet those
capabilities can sometimes be defeated by comparatively simple
countermeasures. If our adversaries can track the ups and downs of our
intelligence budget over time, they may be able to figure out when new
capabilities are coming on line and develop techniques to make the
system less capable. We should keep our intelligence budget secret so
we do not provide information to our adversaries about what we are
working on and when.
Furthermore, I do not believe disclosure of the aggregate
appropriations amount will improve the debates on intelligence in this
body. Every Member of the House of Representatives may have access to
this information, and considerably more, by taking advantage of the
opportunity to read the classified schedule incorporated in the
intelligence authorization bill each year. Disclosure of the
appropriations total will not provide more information about
intelligence activities to Members of the House and Senate than is now
available.
Since disclosure of the aggregate intelligence budget will not
provide more information to Members of Congress but could assist those
who seek advantages over the United States of America, I urge the
defeat of this amendment.
Mr. MORAN of Virginia. Mr. Chairman, I rise in support of the
amendment.
Mr. Chairman, the sponsors of this amendment are not being
subversive, and I do not think we are being naive. I think we are being
responsible to the taxpayers, to the extent that it is responsible.
Now, I would certainly agree with my good friend who just spoke that
we ought not disclose any kind of information that would jeopardize our
ability to protect American citizens. But this does not do that.
When my good friend, the gentleman from Indiana (Mr. Roemer), said he
was offering the amendment and would I like to be a cosponsor, I said,
"Of course. Why not?" That is still my reaction. Of course, we will
not disclose the cumulative amount. Why not? It is not an astronomical
amount; it is a very reasonable portion of the Federal budget. In fact,
when you compare it to anyone that might be considered a potential
threat, it is a very minimal amount to protect this country.
But we have a responsibility to the taxpayers. It is their money; it
is not ours. It is one thing not to give the taxpayers a receipt or an
accounting of how we might spend the money; it is quite another to ask
for a blank check. Just sign the bottom line, we will fill in the
amount.
I do not think that is the way we do things, that we ought to do
things in a democracy. We ought to have as much transparency as
possible. We ought to do everything that we can to restore trust in
government. This is not a totalitarian society. I could see it if we
were operating under a fascist or certainly a communist system. You
would never imagine disclosing these kinds of amounts. But we have
nothing to hide. We have very responsible members of the Committee on
Appropriations on both sides of the aisle, and certainly the Senate
Select Committee on Intelligence, and the gentleman from California
(Mr. Dixon) is an extraordinarily responsible leader on our side, and
the gentleman from Florida (Mr. Goss) as well.
{time} 1900
Now, the gentleman from California (Mr. Dixon) is supporting, but so
is Warren Rudman, a former Senator, certainly not a subversive,
certainly not someone that does anything in a radical kind of manner.
General Harold Brown; we have the former CIA director Turner; we have
any number of people that looked at this and decided this is not an
irresponsible thing to do. In fact, this is a responsible thing to do
in light of the requirement that we have to be responsive to the
American taxpayer.
So I would suggest, Mr. Chairman, that this amendment ought to be
included, and it probably ought to be included as a matter of course in
each successive year. It is nice that the CIA or our intelligence
agencies chose to disclose the amount in 1997 and 1998, and probably
will be disclosed this year; but I think we ought to say as well that
the legislative branch recognizes that this is an appropriate thing to
do in light of the fact that it is not our money, it is the taxpayers'
money.
It was a recommendation, as the gentleman from Indiana (Mr. Roemer)
said, of the commission that was put together to look at these types of
national security issues. They came up with a recommendation that the
amount be disclosed to the public, the overall amount for the
intelligence budget on a current basis. This is not on a current basis,
this is the previous fiscal year. I think it is a very moderate piece
of legislation, it is a reasonable thing to do, and I would hope
[[Page H3500]]
that we would not have much controversy over something like this and
deal with more difficult, complex matters.
Mrs. WILSON. Mr. Chairman, I move to strike the last word.
Mr. Chairman, there is something that I think we are forgetting in
this debate and that is that every Member of Congress can go up to the
Select Committee on Intelligence room and see the entire content of the
intelligence authorization bill. There is nothing that is kept from us
as elected representatives, but there are things that are kept in every
detail from our opponents and our potential enemies.
That puts the responsibility on a small number of shoulders, and most
of them are sitting in this room here now, the members of the House
Permanent Select Committee on Intelligence. It is our job to review the
budgets and the sources and the methods and to provide oversight of all
of the intelligence agencies, and we have to do this job in a way that
is kind of uncommon for politicians. We have to do it quietly, without
a lot of public hooha, in a closed room where the press is not there.
Most of us are used to putting out press releases on everything and
arguing about things in the media, but we do not have that privilege on
this committee, and we should not, because this is a matter of national
security.
Declassifying the intelligence budget, whether as an overall number,
or in smaller pieces, only helps our enemies to track trends in our
spending and figure out what we are doing. My colleague from Indiana
talks about books that have been published or articles that have been
written, and none of us on this committee ever confirm or deny or say
anything about what is right and what is wrong; and he well knows that
a lot of it is complete wildness. But we do not comment on it, because
it is our job not to.
The problem with declassifying the whole number is that one cannot
talk about the details, so it makes no sense in context with other
parts of the budget. We cannot explain it, we cannot defend it, we
cannot talk about the details and what it means and what we are buying;
but we can refer our colleagues up to the intelligence room to look at
those details, even though we cannot talk about it publicly. Even the
gentleman from Virginia (Mr. Moran) seemed to find it difficult to talk
about comparisons here on the floor because this is a public forum. We
would have that difficulty again and again and again if we try to
justify a declassified total number without being able to talk about
the specifics that make it up.
I am also concerned that there are no exceptions in this amendment
for time of war or national emergencies, and we are directing the
President and the CIA to declassify numbers that, frankly, they already
have the authority to do without direction of this Congress; and it
concerns me when, as elected representatives, we tell the executive
branch to declassify things and get proscriptive about how exactly that
should be done. It is my view that that generally should be left up to
the executive branch of government.
Sometimes I think that we get a little bit complacent. The Cold War
is over. We are all focused on things at home, on Social Security and
taxes and education, and things that our constituents are facing every
day. But just because the Cold War is over does not mean that there are
not people out there that would take advantage of the United States and
whose interests are contrary to our own, and I am ever mindful of what
Churchill once said. The truth must be protected by a bodyguard of
lies, and it is sometimes in the interests of the United States of
America to deceive our enemies about what we are actually doing in
order to protect our national security.
My colleague from Indiana talks about one ray of sunshine. I see it a
little differently. I think it is one piece of a puzzle, a piece of a
puzzle that our enemies would very much like to have, and which I think
is the obligation of this body to deny them.
Mr. ROEMER. Mr. Chairman, will the gentlewoman yield?
Mrs. WILSON. I yield to the gentleman from Indiana.
Mr. ROEMER. Mr. Chairman, I thank the gentlewoman, who is a very
valuable member of the Committee on Intelligence, and I certainly
respect her opinions on a host of different issues.
However, as she started out the debate on this issue, she said, we as
members of the committee have access, the 16 of us, and all 435
members, have access if they want. This amendment is not about that
access of Members of Congress. Sometimes we think we are pretty smart;
we think we know and have a lot of the answers. This is about providing
one simple piece of information to the people that work hard every day
to fund the overall budget, and then they get one ray of sunshine to
know how the intelligence budget fits into the overall budget.
The CHAIRMAN. The time of the gentlewoman from New Mexico (Mrs.
Wilson) has expired.
(By unanimous consent, Mrs. Wilson was allowed to proceed for 1
additional minute.)
Mrs. WILSON. Mr. Chairman, that really was not my point. My point was
that there are times when we as elected representatives have to take on
and shoulder tremendous responsibility, and that responsibility may
include access to information that we cannot share with our
constituents. That is the responsibility we have been given as members
of this committee, and it is one that I think that we should continue,
including this one piece of information.
Mr. BLUMENAUER. Mr. Chairman, I move to strike the requisite number
of words.
Mr. Chairman, the point, as my colleague from Indiana was making, was
what the public has a right to know. The fiscal year 1997 budget was
revealed to the American public as $26.6 billion. That was not
something that was probably a shock to our adversaries, who have pretty
good estimates of what we are doing in this arena. There are experts
that speculate on this. The Republic's foundations have not been
shattered. The next year when it was revealed that it was $26.7
billion, life went on, and if we were to give the American public what
the figure is for this year and what is recommended in the aggregate
for the following year, life as we know it will continue.
I think that we in this body and in the Federal Government generally
tend to draw a curtain of secrecy over things that are not going to be
secret from our adversaries; but they are going to keep, and this
happens time and time again, information that we do not want revealed
to the American public for whatever reason.
We are starting to see the history of what has happened with the FBI
under J. Edgar Hoover under the guise of national security. We have
seen the things that have been perpetrated by that agency under Mr.
Hoover's regime.
Mr. Chairman, I think that it is time for us to take a step back and
look at this amendment, which gives the American public an opportunity
to evaluate some of the trending. It is not going to be a great mystery
to our adversaries who have access to some information from their
sources. It is speculated upon in the academic community, but it will
give the American public a little more information.
I think it is appropriate for us to ask hard questions as a people
about the resources that are being invested. How, given the tens of
billions of dollars that were invested in our security apparatus, we
could not predict the collapse of the former Soviet Union; that we
somehow could not identify the Chinese embassy, which resulted in a
tragic bombing, the impact of the repercussions we are still dealing
with.
Mr. Chairman, I think that we ought to be honest about the public
realm and stop the charade here. There is an adequate amount of
information that is available for very sophisticated people to be able
to allow some tracking of this. I think taking an additional step so
that the American public has it makes sense. I hope that we will be
more rational about what we keep secret and what we do not. I am all in
favor of trying to protect things that are truly important for national
security, but not to protect people from embarrassment about things
years after the fact, and not to protect the American public from
knowing how their tax dollars were spent.
Rumor has it that in about 1987 we had a peak of about $36 billion
that were invested in all of these intelligence activities. Yet, today,
13 years later, with a less sophisticated array of allied forces that
we are contending
[[Page H3501]]
with, we are still investing huge sums of money that ought to give us
all an opportunity for a constructive national debate.
I think the approval of this amendment, with the recommendations of
the commission that we had of other informed sources who want to pull
this out into the light of day, as my friend, the gentleman from
Indiana (Mr. Roemer) has indicated, would be an important step forward.
Mr. Chairman, I hope that we as a body will be consistent in terms of
wanting to make sure that the public has access to all of the positions
that they have a right to have knowledge of and that does not
compromise our security. We can start by at least going back and giving
a third year's subject for what the total disclosure is.
Mr. Chairman, I urge the adoption of this amendment.
Ms. PELOSI. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise in support of the gentleman's amendment, and I
thank him for his courage and his leadership in offering it here. He is
a very serious member of the committee, as has been noted, and all of
us on the committee take our responsibilities very seriously.
When a Member of the House receives the honor of serving on the House
Permanent Select Committee on Intelligence, we assume a greater
responsibility for our national security in that we have to be trusted
with a great deal of information. We also take a responsibility to
protect the sources and methods by which we obtain that information.
That responsibility is a grave one for us, because lives are at stake.
We also want our President and the administration to have the best
possible information in the interest of our national security and to
make the decisions and judgments that a President must make, regardless
of what party he belongs to, or what opinions he has. We want him to
have the best possible information.
So we need to have, and again, as we are in a new world where it is
not bipolar, but it is many serpents, as DCI Woolsey described it at
one time, we need to have intelligence, but we ought to be careful
enough to move in that direction with fiscal responsibility as well as
responsibility for intelligence.
{time} 1915
We are a very special country. The confidence that people have in our
government is our strength. So it is hard to understand why, in this
body, the House of the people, we would want to deprive the public of
knowing what proportion of our budget is spent on intelligence.
I happen to think that we are good enough at that, that the
intelligence community is good enough at releasing that figure and at
the same time having our adversaries not have access to what that
figure is spent on or what any increase in spending would be spent on.
I am certain that our intelligence community can meet that challenge.
The accountability that the intelligence community must have is one
of the main reasons that I am supporting the amendment of the gentleman
from Indiana (Mr. Roemer). Some have said if we go through releasing
this aggregate number, it starts us down a road to releasing other
information. No, no, it does not have to be that way. We can say it is
the aggregate number and that is that. We can make a decision, Congress
can act, and that can be what the decision is.
It does not mean we are starting down the road to anything, except
better accountability to the American people, again for how this fits
into our total budget. Our budget is what we spend most of our time
working on here, whether it is in the authorizing committees to prepare
the policy or the Committee on the Budget to do the allocations or the
Committee on Appropriations to do the final appropriating. So it is
what we spend most of our time on, and this amount of money, whatever
it is, is a large percentage of that discretionary spending, a very
large percentage of it.
So as we have to make decisions about cuts here and there, I think it
is perfectly appropriate that the public knows how this intelligence
budget fits into the entire budget.
It is difficult to believe that the aggregate budget figure for
fiscal years 1997 and 1998 could be made public by DCI Tenet with no
impact on national security and the figure for fiscal year 1999 could
not be because national security would be harmed if it were disclosed.
It is so sad, it is almost ludicrous, it is almost ludicrous, when
what we are trying to do is to protect the community so that there is
respect for the job that they do, but what we are trying to do is
protect their sources and methods.
By the way, I want to add here that there is much else that should be
declassified that is in the realm of classified now, and that is a
whole other subject and one that hopefully we will go into in a more
serious way as declassification is taking place, but this one simple
matter, which says to the American people we are not afraid for them to
know the aggregate number that we spend on intelligence.
The gentleman from Indiana (Mr. Roemer) is doing a service to our
country and to this Congress by proposing this amendment. Again, I
commend him for his courage, his leadership and urge our colleagues to
support his amendment.
Mr. LEWIS of California. Mr. Chairman, I move to strike the requisite
number of words.
Mr. Chairman, as most of my colleagues know, for a reasonably short
time I have had the privilege of chairing the Committee on
Appropriations Subcommittee on Defense that deals with national
security. As some of my colleagues have mentioned, there are some of
our individual military items that are in what we call the black world.
They are kept secret.
They are kept secret for a reason, and that is beyond just their
technological potential and capability. There are a lot of things about
those systems we would not want our enemies to know. I realize that
this amendment has little to do with that, for we are not being asked
to peel back the onion, even though the gentlewoman just suggested
there are many things that are classified that she would prefer to be
unclassified.
Ms. PELOSI. Mr. Chairman, would the gentleman yield?
Mr. LEWIS of California. Let me continue my statement. I would like
to continue my statement.
Ms. PELOSI. I appreciate that, but that is not what I said. I am
talking about information, and the gentleman knows I am respectful of
his position.
Mr. LEWIS of California. I understand what the gentlewoman from
California (Ms. Pelosi) was saying, but I am just making a suggestion
that there is a parallel here.
One of the pieces of information that is largely public at this point
has to do with our submarine force. There are people who would suggest
that we do not need very many more submarines. There are others who
suggest we ought to have at least as many as we have, and one of the
reasons is because they go under the water and nobody really
necessarily knows where they are.
In the straits near China, it might be interesting to have leaders
wonder whether we are there or not.
Well, I make that point because there is a parallel here. Our
intelligence effort is considerably smaller than some of us would like
it to be and revealing that number might suggest to many as to why many
of us are so concerned. On the other side of that, there is reason and
value in suggesting that maybe our enemies or potential enemies think
that we spend a lot more money than we do. I would like them to think
that, frankly, and there is value in having them think that.
Now, the point that I am making is that this fabulous democracy that
we have the privilege of representing here involves the people sending
us to this great forum, to sit in committees, to sit on this floor,
argue pro and con, develop the information that leads to logical policy
conclusions. The public sends us here because they cannot come here to
do that detail work. They send us here also knowing full well that
there are items relative to the national interest, that not only are
they not able to participate day in and day out about but indeed they
think we should do it with competence and sometimes in confidence.
The fact is that there is not a ground swell of public outcry out
there saying we have to have this number. It has
[[Page H3502]]
been debated here on the floor for several years, but the numbers of
people who are really interested perhaps are reflected by the numbers
of Members who have gone to our committee room to read these bills.
Outside of our committee, I believe the number last year where
someone came in was seven Members actually went in to read the bill,
and I frankly wonder if they read the whole bill. The first page on
there shows them what the number is. There are four so far this year.
So there is this huge ground swell out there suggesting that the
public has no confidence in us in this very delicate area. I would
suggest that the public that actually studies this area knows there is
value in not having our enemies or our potential enemies know how
little we spend or how much we spend. Therefore, Mr. Chairman, I
strongly oppose this amendment
Ms. PELOSI. Mr. Chairman, will the gentleman yield?
Mr. LEWIS of California. I yield to the gentlewoman from California.
Ms. PELOSI. I just want to make sure it is clear that I completely
agree with everything the gentleman said except for the aggregate
number.
Mr. LEWIS of California. I am making the point about the aggregate
number.
Ms. PELOSI. I understand that. The gentleman said I said there should
be more things. What I am talking about is the Hinchey amendment, which
talked about our U.S. involvement in Chile and Guatemala and those
things.
Mr. LEWIS of California. Reclaiming my time, Mr. Chairman.
Ms. PELOSI. Not the gentleman's budget, the gentleman is right.
The CHAIRMAN. The gentleman from California has the time.
Mr. LEWIS of California. Mr. Chairman, with that I believe I made the
point that I do not want our enemies to know how much we are not
spending as well as how much we are spending, and I think that is in
the national interest, in the security of our country's interest and
perhaps, well not perhaps but very much in the interest of peace.
Mr. DeFAZIO. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, those who are watching have to be extraordinarily
puzzled by this debate. Now since the year I was born, and as everyone
can all see I am getting a little long in the tooth, that has been
quite a few years, 1947, the United States has kept secret the amount
of money that is spent well and the amount of money that is not spent
so well on the intelligence services and agencies of the United States.
This certainly could have been a rationale in 1947, the year I was
born with the closing of the Iron Curtain, the fear of the Soviet Union
and their growth across Europe and around the world; threats that we
perceived, but that is history. The Soviet Union has collapsed. We are
now confronted with rogue nations and others.
Our defense budget, and the gentleman waxed eloquent about how few go
to read it, I do not go to read it. Does anyone know why? It is a Catch
22. If I go and read it, I cannot talk about it but if I do not read it
then I can talk about it. I will say we are spending $30 billion, $30
billion of hard-earned taxpayer dollars on the intelligence services.
Now we had one agency a few years ago that lost $4 billion in
bookkeeping. They did not know they had it. Well, they found it again
after they were audited; and that money has been reallocated, I guess.
I do not know. I have not gone up to check out the secret report.
The only reason it is kept secret is to keep it secret from the
American people, not from our enemies. This amount of money is more
than the gross domestic product of virtually all of our enemies
combined. They would be frightened to death if they knew we were
spending $30 billion to sneak around in their countries or to look at
them from satellites or however else it is we are monitoring their
activities. But they do not know that and the gentleman says, well, we
would not want them to know how little we are spending. Only $30
billion, only $30 billion? This is extraordinary.
The gentleman has not even proposed that we would tell them how much
we are going to spend this year, which is more secret. It might be an
increase of X percent of X which might be Y. Those who took math can
follow that. But we do not know. We really do not know, and they would
not know. They would only know what we spent last year.
This is an incredibly modest amendment. It will let the taxpayers
know how much money we spent last year. We are not going to audit how
they spent it. We are not going to audit if they lost billions again
like that agency unnamed did a few years ago. We are not going to audit
to see if it was well spent, if it was spent on satellites or human
information or other secret technologies to monitor every communication
around the earth that I am getting a lot of e-mails about in my office.
No. We would just know how much money we spent last year on this
aggregate budget.
I think it would scare the bejesus out of all of our enemies if they
knew how much we were spending. They would be really scared. They
cannot come near 1/100th of 1 percent of that for their intelligence
budget. So let us reveal it.
Like the gentleman has proposed, we are only going to reveal it for
last year. I would go further. I would actually reveal it for this
year. I do not think that would be a problem. In fact, we do have a
report which came out, which I left over there, but a report in 1996
where in fact, chaired by the Secretary of Defense and others, the
commission said that there would be no harm, no threat possible to our
national security to publish this year's and even projected years'
numbers. In fact, I believe it would scare our enemies into submission.
Mr. DIXON. Mr. Chairman, I move to strike the requisite number of
words.
I support the Roemer amendment. This is an amendment that I think the
American people are owed today. Perhaps at one time it would not have
been appropriate to disclose the aggregate amount of the past year's
intelligence budget, but I think the time has come to do so.
The first argument that we hear, it is either expressed or implied,
is that if the American people knew the aggregate amount spent on
intelligence they would demand that the amount be cut. The problem with
this argument is that, even if that were true, that is not a reason to
classify the amount.
Executive Order 12958 makes clear that information may only be
classified to protect national security and not hinder discussion or
debate.
The second argument we hear in one form or another is that making the
aggregate figure public would provide no useful information, because a
context for spending can only be provided at the program level. Because
the public would be dissatisfied with this useless information,
irresistible pressure would be brought to declassify more of the
intelligence budget. This is called the slippery slope argument, and I
disagree with it.
I for one will oppose declassification even at the agency level.
Moreover, fear of what might happen in the future plainly does not meet
the classification standard in the executive order.
The third argument is that America's enemies, by comparing year-to-
year aggregate intelligence budgets, and this is the argument we have
heard mostly tonight, could figure out what specific new programs were
being funded and the deficiencies these programs were meant to remedy.
{time} 1930
It is difficult to believe that an adversary, no matter how strong
its analytical skills, could use the top line number to determine
program specifics. Several nations disclose their intelligence budgets,
and I doubt if our analysts use solely those figures as a basis for a
judgment on the specific programs in those budgets.
Additionally, as the report accompanying this year's authorization
makes clear, a great deal of information is already made public on the
shortcomings of the intelligence community.
Some of us will argue that this year's budget is at an appropriate
level; others will argue that the administration has not provided
enough money. The administration's budget request is 6.6 percent above
last year's appropriation level. Others will argue that, in fact, we
should cut it.
If we are to make these arguments on the floor, the American public
should
[[Page H3503]]
know what that inclusive figure is. It is entirely fighting with one's
hands behind one's back to say that the President has offered up too
much or too little, or we have provided too much or too little without
the public knowing and being able to make the judgment on the aggregate
number.
Mr. Chairman, I believe this amendment will make an important
contribution to the debate on the resources necessary to support our
national security, and I would urge the Members of the House to reflect
on this overnight and give the public the opportunity to know last
year's aggregate number. I pledge support to resist opening up the
budget further. But as we argue too much or too little, the public
should know what that reference is.
Mr. GOSS. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I am very pleased that we are having this debate again.
We had it in committee. It was voted down in committee 11-5. In an
abundance of fairness, the Committee on Rules has given us an open rule
and done all these things, and we are getting to the point.
I think there are a couple of points that need to be said. First of
all, accountability is very important, and I believe our committee does
a fabulous job on accountability. The point that has been made by
several who have spoken on this, any Member can come upstairs and
satisfy themselves on any aspect. The American people look to us for
that accountability. We are pleased to invite our colleagues to come up
to the committee to make sure we are doing our job properly. So far, it
seems we are because, as the gentleman from California (Mr. Dixon)
pointed out, there is not a huge groundswell on this subject.
The second point that has been made as well it would be great to have
some information out there. It might be confidence building. Well, it
is true that the President of the United States who does have the
authority to disclose this number, it does lie with the President of
the United States to reveal it, chose to reveal it through the Director
of Central Intelligence in 1997 and 1998. I do not believe there has
been an uptick in confidence in the intelligence community because of
that.
But something else did happen that caused us a problem. When they got
to 1999, they discovered, whoops, we are getting into a trend-line
situation. And the President said, "I do not think it is in the
national security interest to create these trend lines that our enemies
can follow," and he chose not to disclose the number.
In fact, the DCI was taken to court over the number, over the issue.
When the DCI got through making his defense, at the appropriate time I
will put this in the record, he came to the conclusion that the trend-
line fashion could be reasonably expected to damage national security.
Judge Hogan for the Federal District Court for the District of Columbia
sustained the DCI's conclusions and dismissed the lawsuit on the
summary judgment.
So I have the President of the United States, head of the
intelligence community, and the courts all agreeing we have got
something new, and it is different here.
Now, some point has been made by the Aspin/Brown Commission. I do not
claim infallibility for the Aspin/Brown Commission. I was on it. I can
ensure the distinguished gentleman from Indiana (Mr. Roemer), who has
made the amendment, that we thought a consensus report was very
important. We had quite a debate in Aspin/Brown. And rather than make a
big issue over this, we said, let us have a unanimous report, and we
put it out.
I would not read too much in it. What I would read into it is that
other reports done at the same time, the IC-21 report and the CFR
report, does not exactly come to the same conclusions. I think what we
found is that, of the many recommendations that came out of Aspin/
Brown, this one did not prove to be particularly useful. In fact,
because of this trend-line problem, which we did not debate,
incidentally, it did not turn out to be helpful.
Another point that has been made tonight is sunshine. We need just
one ray of sunshine. Here is 48 pages of sunshine with lots of numbers,
disclosure of the things that will not damage our national security.
That is important. We make the decisions, if we think it can be
disclosed, it should be disclosed, and we try and do that. Of course
the President has the final word on the question of classification. It
lies with the executive.
The final point I would make, I think, is this; and, again, I do not
want this to be contentious, we have had the debate, and there are
different views, and they are entirely legitimate, and I accept them.
We work in a nonpartisan way upstairs, and we have come to a conclusion
that this is not an amendment we wanted on our authorization, but we
are bringing it to the Members because one of our Members did.
I honestly believe that the President trusts Americans. We trust
Americans. Our committee trusts Americans. Trusting Americans is not
what this is about. I do not trust our enemies. I do not know whether
they can get anything useful, but I do not want to take the chance if
the President of the United States feels that we should not. I do not
want to give to any terrorist, to any drug dealer, to any weapons
proliferator any information that could be used against us.
So perhaps it is an abundance of caution on my part. But those who
have the first line of responsibility on this said, no, let us not
reveal it. I think they have made the right judgment. I do not think we
should override that judgment.
It is for that reason that I think that we should not approve this
amendment, and I will urge our colleagues to vote against the Roemer
amendment.
Mr. Chairman, I include the following materials for printing in the
Record.
United States District Court for the District of Columbia
Steven Aftergood, on behalf of the Federation of American
Scientists, Plaintiff, v. Central Intelligence Agency,
Defendant.
Civ. No. 98-2107 (TFH)
Declaration of George J. Tenet
introduction
I, GEORGE J. TENET, hereby declare:
1. I am the Director of Central Intelligence (DCI). I was
appointed DCI on 11 July 1997. As DCI, I serve as head of the
United States intelligence community, act as the principal
adviser to the President for intelligence matters related to
the national security, and serve as head of the Central
Intelligence Agency (CIA).
2. Through the exercise of my official duties, I am
generally familiar with plaintiff's civil action. I make the
following statements based upon my personal knowledge, upon
information made available to me in my official capacity, and
upon the advice and counsel of the CIA's Office of General
Counsel.
3. I understand that plaintiff has submitted Freedom of
Information Act (FOIA) requests for "a copy of documents
that indicate the amount of the total budget request for
intelligence and intelligence-related activities for fiscal
year 1999" and "a copy of documents that indicate the total
budget appropriation for intelligence and intelligence-
related activities for fiscal year 1999, updated to reflect
the recent additional appropr[Congressional Record
supplemental' funding for intelligence." I also understand
that plaintiff alleges that the CIA has improperly withheld
such documents. I shall refer to the requested information as
the "budget request" and "the total appropriation,"
respectively.
4. As head of the intelligence community, my
responsibilities include developing and presenting to the
President an annual budget request for the National Foreign
Intelligence Program (NFIP), and participating in the
development by the Secretary of Defense of the annual budget
requests for the Joint Military Intelligence Program (JMIP)
and Tactical Intelligence and Related Activities (TIARA). The
budgets for the NFIP, JMIP, and TIARA jointly comprise the
budget of the United States for intelligence and
intelligence-related activities.
5. The CIA has withheld the budget request and the total
appropriation on the basis of FOIA Exemption (b)(1) because
they are currently and properly classified under Executive
Order 12958, and on the basis of FOIA Exemption (b)(3)
because they are exempted from disclosure by the National
Security Act of 1947 and the Central Intelligence Agency
Act of 1949. The purpose of this declaration, and the
accompanying classified declaration, is to describe my
bases for determining that disclosure of the budget
request or the total appropriation reasonably could be
expected to cause damage to the national security and
would tend to reveal intelligence methods.
6. I previously executed declarations in this case that
were filed with the CIA's motion for summary judgment on 11
December 1998. Those two declarations described my bases for
withholding the budget request only. Since the CIA filed its
motion for summary judgment, plaintiff has filed an amended
complaint seeking release of the total appropriation also.
For the Court's convenience, the justifications contained in
my earlier declarations are repeated and supplemented in this
declaration and the accompanying classified declaration and
describe my bases for withholding both the budget request and
the total appropriation for fiscal year 1999.
[[Page H3504]]
Prior Releases
7. In October 1997, I publicly disclosed that the aggregate
amount appropriated for intelligence and intelligence-related
activities for fiscal year 1997 was $26.6 billion. At the
time of this disclosure, I issued a public statement that
included the following two points:
First, disclosure of future aggregate figures will be
considered only after determining whether such disclosure
could cause harm to the national security by showing trends
over time.
Second, we will continue to protect from disclosure any and
all subsidiary information concerning the intelligence
budget: whether the information concerns particular
intelligence programs. In other words, the Administration
intends to draw the line at the top-line, aggregate figure.
Beyond this figure, there will be no other disclosures of
currently classified budget information because such
disclosures could harm national security.
8. In March 1998, I publicly disclosed that the aggregate
amount appropriated for intelligence and intelligence-related
activities for fiscal year 1998 was $26.7 billion. I did so
only after evaluating whether the 1998 appropriation, when
compared with the 1997 appropriation, could cause damage to
the national security by showing trends over time, or
otherwise tend to reveal intelligence methods. Because the
1998 appropriation represented approximately a $0.1 billion
increase--or less than a 0.4 percent change--over the 1997
appropriation, and because published reports did not contain
information that if coupled with the appropriation, would be
likely to allow the correlation of specific spending figures
with particular intelligence programs, I concluded that
release of the 1998 appropriation could not reasonably be
expected to cause damage to the national security, and so I
released the 1998 appropriation.
9. Since the enactment of the intelligence appropriation
for fiscal year 1998, the budget process has produced: 1) the
fiscal year 1998 supplemental appropriations; 2) the
Administration's budget request for fiscal year 1999 (a
subject of this litigation); 3) the fiscal year 1999 regular
appropriation (a subject of this litigation); and 4) the
fiscal year 1999 emergency supplemental appropriation (a
subject of this litigation). Information about each of these
figures--some of it accurate, some not--has been reported in
the media. In evaluating whether to release the
Administration's budget request or total appropriation for
fiscal year 1999, I cannot review these possible releases in
isolation. Instead, I have to consider whether release of the
requested information could add to the mosaic of other public
and clandestine information acquired by our adversaries about
the intelligence budget in a way that could reasonably be
expected to damage the national security. If release of the
requested information adds a piece to the intelligence jigsaw
puzzle--even if it does not complete the picture--such that
the picture is more identifiable, then damage to the national
security could reasonably be expected. After conducting such
a review, I have determined that release of the
Administration's intelligence budget request or total
appropriation for fiscal year 1999 reasonably could be
expected to cause damage to the national security, or
otherwise tend to reveal intelligence methods. In the
paragraphs that follow, I will provide a description of
some of the information that I reviewed and how I reached
this conclusion. I am unable to describe all of the
information I reviewed without disclosing classified
information. Additional information in support of my
determination is included in my classified declaration.
10. At the creation of the modern national security
establishment in 1947, national policymakers had to address a
paradox of intelligence appropriations: the more they
publicly disclosed about the amount of appropriations, the
less they could publicly debate about the object of such
appropriations without causing damage to the national
security. They struck the balance in favor of withholding the
amount of appropriations. For over fifty years, the Congress
has acted in executive session when approving intelligence
appropriations to prevent the identification of trends in
intelligence spending and any correlations between specific
spending figures with particular intelligence programs. Now
is an especially critical and turbulent period for the
intelligence budget, and the continued secrecy of the fiscal
year 1999 budget request and total appropriation is necessary
for the protection of vulnerable intelligence capabilities.
Classified Information FOIA Exemption (b)(1)
11. The authority to classify information is derived from a
succession of Executive orders, the most recent of which is
Executive Order 12958, "Classified National Security
Information." Section 1.1(c) of the Order defines
"classified information" as "information that has been
determined pursuant to this order or any predecessor order to
require protection against unauthorized disclosure." The CIA
has withheld the budget request and the total appropriation
as classified information under the criteria established in
Executive Order 12958.
classification authority
12. Information may be originally classified under the
Order only if it: (1) is owned by, produced by or for, or is
under the control of the United States Government; (2) falls
within one or more of the categories of information set forth
in section 1.5 of the Order; and (3) is classified by an
original classification authority who determines that its
unauthorized disclosure reasonably could be expected to
result in damage to the national security that the original
classification authority can identify or describe. The
classification of the budget request and the total
appropriation meet these requirements.
13. The Administration's budget request and the total
appropriation are information clearly owned, produced by, and
under the control of the United States Government.
Additionally, the budget request and the total appropriation
fall within the category of information listed at section
1.5(c) of the Order: "intelligence activities (including
special activities), intelligence sources or methods, or
cryptology."
14. Finally, I have made the determination required under
the Order to classify the budget request and the total
appropriation. By Presidential Order of 13 October 1995,
"National Security Information", 3 C.F.R. 513 (1996),
reprinted in 50 U.S.C. Sec. 435 note (Supp. I 1995), and
pursuant to section 1.4(a)(2) of Executive Order 12958, the
President designated me as an official authorized to exercise
original TOP SECRET classification authority. I have
determined that the unauthorized disclosure of the budget
request or the total appropriation reasonably could be
expected to cause damage to the national security.
Consequently, I have classified the budget request and the
total appropriation at the CONFIDENTIAL level. In the
paragraphs below, I will identify and describe the
foreseeable damage to national security that reasonably
could be expected to result from disclosure of the budget
request or the total appropriation.
damage to national security
15. Disclosure of the budget request or the total
appropriation reasonably could be expected to cause damage to
the national security in several ways. First, disclosure of
the budget request reasonably could be expected to provide
foreign governments with the United States' own assessment of
its intelligence capabilities and weakness. The difference
between the appropriation for one year and the
Administration's budget request for the next provides a
measure of the Administration's unique, critical assessment
of its own intelligence programs. A requested budget decrease
reflects a decision that existing intelligence programs are
more than adequate to meet the national security needs of the
United States. A requested budget increase reflects a
decision that existing intelligence programs are insufficient
to meet our national security needs. A budget request with no
change in spending reflects a decision that existing programs
are just adequate to meet our needs.
16. Similar insights can be gained by analyzing the
difference between the total appropriation by Congress for
one year and the total appropriation for the next year. The
difference between the appropriation for one year and the
appropriation for the next year provides a measure of the
Congress' assessment of the nation's intelligence programs.
Not only does an increased, decreased, or unchanged
appropriation reflect a congressional determination that
existing intelligence programs are less than adequate, more
than adequate, or just adequate, respectively, to meet the
national security needs of the United States, but an actual
figure indicates the degree of change.
17. Disclosure of the budget request or the total
appropriation would provide foreign governments with the
United States' own overall assessment of its intelligence
weaknesses and priorities and assist them in redirecting
their own resources to frustrate the United States'
intelligence collection efforts, with the resulting damage to
our national security. Because I have determined it to be in
our national security interest to deny foreign governments
information that would assist them in assessing the strength
of United States intelligence capabilities, I have determined
that disclosure of the budget request or the total
appropriation reasonably could be expected to cause damage to
the national security. I am unable to elaborate further on
the bases for my determination without disclosing classified
information. Additional information in support of my
determination is included in my classified declaration.
18. Second, disclosure of the budget request or the total
appropriation reasonably could be expected to assist foreign
governments in correlating specific spending figures with
particular intelligence programs. Foreign governments are
keenly interested in the United States' intelligence
collection priorities. Nowhere are those priorities better
reflected than in the level of spending on particular
intelligence activities. That is why foreign intelligence
services, to varying degrees, devote resources to learning
the amount and objects of intelligence spending by other
foreign governments. The CIA's own intelligence analysts
conduct just such analyses of intelligence spending by
foreign governments.
19. However, no intelligence service, U.S. or foreign, ever
has complete information. They are always revising their
intelligence estimates based on new information. Moreover,
the United States does not have complete information about
how much foreign intelligence services know about U.S.
intelligence programs and funding. Foreign governments
collect information about U.S. intelligence activities
from their human intelligence sources; that is, "spies."
While the United States will never know exactly how
[[Page H3505]]
much our adversaries know about U.S. intelligence
activities, we do know that all foreign intelligence
services know at least as much about U.S. intelligence
programs and funding as has been disclosed by the Congress
or reported by the media. Therefore, congressional
statements and media reporting of the fiscal year 1999
budget cycle provide the minimum knowledge that can be
attributed to all foreign governments, and serve as a
baseline for predictive judgments of the possible damage
to national security that could reasonably be expected to
result from release of the budget request or the total
appropriation.
20. Budget figures provide useful benchmarks that, when
combined with other public and clandestinely-acquired
information, assist experienced intelligence analysts in
reaching accurate estimates of the nature and extent of all
sorts of foreign intelligence activities, including covert
operations, scientific and technical research and
development, and analytic capabilities. I expect foreign
intelligence services to do no less if armed with the same
information. While other sources may publish information
about the amounts and objects of intelligence spending that
damages the national security, I cannot add to that damage by
officially releasing information, such as the budget request
or the total appropriation, that would tend to confirm or
deny these public accounts. Such intelligence would permit
foreign governments to learn about United States'
intelligence collection priorities and redirect their own
resources to frustrate the United States' intelligence
collection efforts, with the resulting damage to our national
security. Therefore, I have determined that disclosure of the
budget request or the total appropriation reasonably could be
expected to cause damage to the national security. I am
unable to elaborate further on the basis for my determination
without disclosing classified information. Additional
information in support of my determination is included in my
classified declaration.
21. In addition, release of both the budget request and the
total appropriation would permit one to calculate the exact
difference between the Administration's request and Congress'
appropriation. It is during the congressional debate over the
Administration's budget request that many disclosures of
specific intelligence programs are reported in the media.
Release of the budget request and total appropriation
together would assist our adversaries in correlating the
added or subtracted intelligence programs with the exact
amount of spending devoted to them.
22. And third, disclosure of the budget request or the
total appropriation reasonably could be expected to free
foreign governments' limited collection and analysis
resources for other efforts targeted against the United
States. No government has unlimited intelligence resources.
Resources devoted to targeting the nature and extent of the
United States' intelligence spending are resources that
cannot be devoted to other efforts targeted against the
United States. Disclosure of the budget request or the total
appropriation would free those foreign resources for other
intelligence collection activities directed against the
United States, with the resulting damage to our national
security. Therefore, I have determined that disclosure of the
budget request or the total appropriation reasonably could be
expected to cause damage to the national security.
23. In summary, I have determined that disclosure of the
budget request or the total appropriation reasonably could be
expected to provide foreign intelligence services with a
valuable benchmark for identifying and frustrating United
States' intelligence programs. For all of the above reasons,
singularly and collectively, I have determined that
disclosure of the budget request or the total appropriation
for fiscal year 1999 reasonably could be expected to cause
damage to the national security. Therefore, I have determined
that the budget request and the total appropriation are
currently and properly classified CONFIDENTIAL.
Intelligence Methods--FOIA Exemption (b)(3)
24. Section 103(c)(6) of the National Security Act of 1947,
as amended, provides that the DCI, as head of the
intelligence community, "shall protect intelligence sources
and methods from unauthorized disclosure." Disclosure of the
budget request or the total appropriation would jeopardize
intelligence methods because disclosure would tend to reveal
how and for what purposes intelligence appropriations are
secretly transferred to and expended by intelligence
agencies.
25. There is no single, separate appropriation for the CIA.
The appropriations for the CIA and other agencies in the
intelligence community are hidden in the various annual
appropriations acts. The specific locations of the
intelligence appropriations in those acts are not publicly
identified, both to protect the classified nature of the
intelligence programs themselves and to protect the
classified intelligence methods used to transfer funds to and
between intelligence agencies.
26. Because there are a finite number of places where
intelligence funds may be hidden in the federal budget, a
skilled budget analyst could construct a hypothetical
intelligence budget by aggregating suspected intelligence
line items from the publicly-disclosed appropriations.
Release of the budget request or the total appropriation
would provide a benchmark to test and refine such a
hypothesis. Repeated disclosures of either the budget request
or total appropriation could provide more data with which to
test and refine a hypothesis. Confirmation of the
hypothetical budget could disclose the actual locations in
the appropriations acts where the intelligence funds are
hidden, which is the intelligence method used to transfer
funds to and between intelligence agencies.
27. Sections 5(a) and 8(b) of the CIA Act of 1949
constitute the legal authorization for the secret transfer
and spending of intelligence funds. Together, these two
sections implement Congress' intent that intelligence
appropriations and expenditures, respectively, be shielded
from public view. Simply stated, the means of providing money
to the CIA is itself an intelligence method. Disclosure of
the budget request or the total appropriation could assist in
finding the locations of secret intelligence appropriations,
and thus defeat these congressionally-approved secret funding
mechanism. Therefore I have determined that disclosure of the
budget request or the total appropriation would tend to
reveal intelligence methods that are protected from
disclosure. I am unable to elaborate further on the bases for
my determination without disclosing classified information.
Additional information in support of my determination is
included in my classified declaration.
Conclusion
28. In fulfillment of my statutory responsibility as head
of the United States intelligence community, as the principal
adviser to the President for intelligence matters related to
the national security, and as head of the CIA, to protect
classified information and intelligence methods from
unauthorized disclosure, I have determined for the reasons
set forth above and in my classified declaration that the
Administration's intelligence budget request and the total
appropriation for fiscal year 1999 must be withheld because
their disclosure reasonably could be expected to cause damage
to the national security and would tend to reveal
intelligence methods.
I hereby certify under penalty of perjury that the
foregoing is true and correct.
Executed this 6th day of April, 1999.
George J. Tenet,
Director of Central Intelligence.
Memorandum Opinion
Pending before the Court is Defendant Central Intelligence
Agency ("CIA")'s Motion for Summary Judgment. After careful
consideration of Defendant's Motion, Plaintiff's Memorandum
in Opposition, Defendant's reply, the arguments presented at
the November 1 hearing, and upon a second review of both
classified affidavits as well as the unclassified affidavit
filed by Defendant in this case, the Court will grant
Defendant's Motion for Summary Judgment.
background
Plaintiff Steven Aftergood, on behalf of the Federation of
American Scientists, seeks disclosure under the Freedom of
Information Act ("FOIA"), 5 U.S.C. Sec. 552, of the
Administration's total budget request for fiscal year 1999
for all intelligence and intelligence-related activities.
Defendant, the United States Central Intelligence Agency
("CIA"), denied plaintiff's request on the basis that the
information is exempt from FOIA's disclosure requirements
because it is properly classified under Executive Order 12958
in the interest of national defense or foreign policy
(Exemption 1) and because release of this figure would tend
to reveal intelligence sources and methods that are
specifically exempted from disclosure by statute (Exemption
3). On December 11, 1998, the Defendant moved for summary
judgment on the basis of three declarations from George J.
Tenet, Director of Central Intelligence ("DCI"), one
unclassified filed as an exhibit to Defendant's Motion for
Summary Judgment, and two classified which were filed under
seal and ex parte for the Court's in camera review. These
declarations explain why DCI Tenet believes the release of
the figure requested by Plaintiff could reasonably be
expected to cause damage to the national security and would
tend to reveal intelligence methods and sources.
discussion
I. FOIA Exemption 1
Exemption 1 of FOIA exempts from mandatory disclosure
records that are: (A) specifically authorized under criteria
established by Executive Order to be kept secret in the
interest of national defense or foreign policy, and (B) are
in fact properly classified pursuant to such Executive Order.
5 U.S.C. Sec. 552(b)(1). The Executive Order currently in
effect is Executive Order ("E.O.") 12958, "Classified
National Security Information."
Courts have prescribed a two-part test, part substantive
and part procedural, to be applied in determining whether
material has been properly withheld under Exemption 1.
Substantively, the agency must show that the records at issue
logically fall within the exemption, i.e., that an Executive
Order authorizes that the particular information sought be
kept secret in the interest of national defense or foreign
policy. Procedurally, the agency must show that it followed
the proper procedures in classifying the information.
Salisbury v. United States, 690 F.2d 966, 970-72 (D.C. Cir.
1982). If the agency meets both tests, it is then entitled to
summary judgment. See, e.g., Abbotts v. NRC, 766 f.2d 604,
606 (D.C. Cir. 1985); Miller v. Casey, 730 F.2d 773, 776
(D.C. Cir. 1984).
a. The Procedural Requirements of Exemption 1
Based on the unclassified Declaration of DCI Tenet, the CIA
has demonstrated that it
[[Page H3506]]
has followed the proper procedures in classifying the total
budget request for intelligence activities. Proper
classification must be made by an original classification
authority who determines that the information is owned by,
produced by or for, or is under the control of the United
States Government; that it falls within one or more
categories of information set forth in section 1.5 of the
Executive Order; and that the information's unauthorized
disclosure reasonably could be expected to result in damage
to the national security that the original classification
authority can identify or describe. See E.O. 12958,
Sec. 1.2(a); see also 32 C.F.R. Sec. 2001.10(b) (Information
Security Oversight Office directive explaining that agency
classifier must be able to identify and describe damage to
national security potentially caused by unauthorized
disclosure).
DCI Tenet is an official authorized to exercise original
TOP SECRET classification authority. Tenet Declaration para.
13; see Presidential Order of 13 October 1995, "National
Security Information," 3 C.F.R. Sec. 513 (1996); E.O. 12958
Sec. 1.4(a)(2). Further DCI Tenet has determined that the
amount of the budget request for all intelligence activities
is owned by the United States Government, see Tenet
Declaration, para. 12; that it falls within the category of
information listed at section 1.5(c) of the Executive Order,
described as "intelligence activities (including special
activities), intelligence sources or methods, or
cryptology," see Id.; and that its disclosure reasonably
could be expected to cause damage to the national security,
see Id. at para.para. 13 et seq.
Plaintiff contends that DCI's determination is at odds with
that of the President of the United States and that this
conflict renders DCI determination invalid. However, although
the President clearly has the authority to do so, the
President has never released or ordered the release of,
the Administration's budget request or the total
appropriated amount for intelligence activities for fiscal
year 1999. Therefore, the statement of a Presidential
spokesman, made three years earlier, that, as a general
matter, the President believed "that disclosure of the
annual amount appropriated for intelligence purposes will
not, in itself, harm intelligence activities," is neither
on point nor in any way legally binding. Plaintiff has
offered this Court no evidence that the President has ever
addressed the impact of disclosure of the Administration's
budget request or the total amount appropriated for
intelligence activities for fiscal year 1999. The fact
that the President encouraged release of similar
information in earlier years is not determinative here.
Unless or until the President explicitly orders the
release of this information or withdraws his authorization
of DCI Tenet to make these classified determinations, and
absent a finding by this Court that DCI Tenet was somehow
acting in bad faith in refusing to release this
information, the Court finds that TCI Tenet is authorized
to make this highly fact-dependent classification
determination at issue in this case, and that he has
properly done so here.
b. The Substantive Requirements of Exemption I
To demonstrate that the budget request for intelligence
falls within Exemption 1, the CIA must also explain why the
information at issue properly falls within one or more of the
categories of classifiable information, in this case
"intelligence sources or methods," see E.O. 12958
Sec. 1.5(c), and why its unauthorized disclosure could
reasonably be expected to result in damage to the national
security.
When determining whether the records at issue are properly
within the scope of the exemption; this Court must
"determine the matter de novo." 5 U.S.C. Sec. 552(a)(4)(B).
In Exemption 1 cases, Congress has indicated and courts have
consistently recognized, that an agency's determination as to
potential adverse effects resulting from public disclosure of
a classified record should be accorded substantial weight.
See, e.g., Bowers v. Department of Justice, 930 F.2d 350, 357
(4th Cir. 1991) ("What fact or bit of information may
compromise national security is best left to the intelligence
experts."); Taylor v. Department of the Army, 684 F.2d 99,
109 (D.C. Cir. 1982) (the agency's determination should be
accorded "utmost deference"); Washington Post v. DOD, 766
F.Supp. 1, 6-7 (D.D.C. 1991) (judicial review of agency
classification decision should be "quite deferential"). The
agency's determination merits this deference because
"[e]xecutive departments responsible for national defense
and foreign policy matters have unique insights into what
adverse affects [sic] might occur as a result of public
disclosure of a particular classified record." Salisbury,
690 F.2d at 970 (quoting S. Rep. No. 1200, 93rd Cong., 2d
Sess. 12 (1974)). Thus, summary judgment for the government
in an Exemption 1 FOIA action should be granted on the basis
of agency affidavits if they simply contain "reasonable
specificity" and if they are not called into question by
contradictory evidence in the record or by evidence of agency
bad faith. Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir.
1980).
DCI Tenet's Declarations meet this deferential standard.
Essentially, DCI Tenet explains that disclosure of the budget
request reasonably could be expected to cause damage to
national security in several ways: (1) disclosure
"reasonably could be expected to provide foreign governments
with the United States' own assessment of its intelligence
capabilities and weaknesses," Tenet Declaration para. 14;
(2) disclosure "reasonably could be expected to assist
foreign governments in correlating specific spending figures
with particular intelligence programs," Tenet Declaration
para. 16; and (3) official disclosure could be expected to
free foreign governments' limited collection and analysis
resources for other efforts targeted against the United
States, Tenet Declaration para. 18.
Obviously, DCI Tenet cannot be certain that damage to our
national security would result from release of the total
budget request for 1999, but the law does not require
certainty or a showing of harm before allowing an agency to
withhold classified information. Courts have recognized that
an agency's articulation of the threatened harm must always
be speculative to some extent, and that to require an actual
showing of harm would be judicial "overstepping." See
Halperin, 629 F.2d at 149. In the area of intelligence
sources and methods, the D.C. Circuit has ruled that
substantial deference is due to an agency's determination
regarding threats to national security interests because this
is "necessarily a region for forecasts in which the CIA's
informed judgment as to potential future harm should be
respected." Gardels v. CIA, 689 F.2d 1100, 1106 (D.C. Cir.
1982). Further, the Court noted that "the CIA has the right
to assume that foreign intelligence agencies are zealous
ferret." Id.
In this case, plaintiff has offered no contrary record
evidence undermining the validity of DCI Tenet's highly fact-
dependent determination. First, the Brown Commission's 1996
recommendations in favor of disclosure are not binding on
this Court. The Brown Commission was a congressionally-
charted commission made up of private citizens who lacked
classification authority and who made non-binding
recommendations to Congress and the President on intelligence
matters. Neither Congress nor the President ever enacted the
Brown Commission's recommendation on public disclosure of the
intelligence budget. Nor did the Brown Commission ever
consider the precise issue of classification presented here:
whether, in 1999, and under the circumstances described in
DCI Tenet's unclassified and classified declarations, it
would recommend disclosure of the budget figures for that
particular year.
Second, the fact that DCI Tenet disclosed the total
intelligence budget in prior years is not necessarily adverse
record evidence. On the contrary, this Court finds that it
indicates DCI Tenet's careful, case-by-case analysis of the
impact of each disclosure and his willingness to accommodate
budget requests whenever possible. When he made these prior
disclosures, DCI Tenet emphasized that he would continue to
make that case-by-case determination in future year. Tenet
Declaration para. 7. Here, DCI Tenet has explained, in both
his classified and unclassified declarations, the rationale
underlying his predictive judgment that release of the
figures for fiscal year 1999 could reasonably be expected to
cause damage to national security. Therefore, the Court must
defer to DCI Tenet's decision that release of a third
consecutive year, amidst the information already publicly-
available, provides too much trend information and too great
a basis for comparison and analysis for our adversaries.
II. FOIA Exemption 3
The CIA is also entitled to summary judgment on the basis
that the budget request is exempt from disclosure under FOIA
Exemption 3. Exemption 3 excludes from mandatory disclosure
information that is "specifically exempted from disclosure
by statute . . . provided that such statute requires that the
matters be withheld from the public in such a manner as to
leave no discretion on the issue, or establishes particular
criteria for withholding or refers to particular types of
matters to be withheld." 5 U.S.C. Sec. 552(b)(3)(A) & (B).
In examining an Exemption 3 claim, a court must determine,
first, whether the claimed statute is a statute of exemption
under FOIA, and, second, whether the withheld material
satisfied the criteria of the exemption statute. CIA v. Sims,
471 U.S. 159, 167 (1985); Fitzgibbon v. CIA, 911 F.2d 755,
761 (D.C. Cir. 1990). In this case, the CIA has withheld
information from plaintiff because DCI Tenet has determined
that the budget request falls within Section 103(c)(6) of the
National Security Act of 1947, as amended, 50 U.S.C.
Sec. 403-3(c)(6) (formerly section 403(d)(3)), which requires
the DCI to "protect intelligence sources and methods from
unauthorized disclosure." It is well settled that section
403-3(c)(6) falls within Exemption 3. Sims, 471 U.S. at 167.
Thus, the Court need only consider whether the
Administration's budget request falls within that statute.
Id.
There is no doubt that the scope of the statute is broad;
as the Supreme Court has commented, "[p]lainly the broad
sweep of this statutory language comports with the nature of
the [CIA's] unique responsibilities." Sims, 471 U.S. at 169.
The legislative history of Sec. 403-3(c)(6) also makes clear
that Congress intended to give the [DCI] broad authority to
protect the secrecy and integrity of the intelligence
process." Id. at 170. To establish that the budget request
is exempt under FOIA, therefore, the CIA need only
demonstrate that the information "relates" to intelligence
sources and methods. Fitzgibbon, 911 F.2d at 762. Like the
DCI's determination under Exemption 1, the DCI's
determination under Exemption 3 is entitled to "substantial
weight and due consideration." Id.
One nexus between the Administration's budget request and
"disclosure of intelligence sources and methods" is found
in the
[[Page H3507]]
special appropriations process used for intelligence
activities. Disclosure of the budget request would tend to
reveal "how and for what purposes intelligence
appropriations are secretly transferred to and expended by
intelligence agencies." Tenet Declaration para. 20.
There is no single, separate appropriation for the CIA.
Appropriations for the CIA and other agencies in the
intelligence community are hidden in the various
appropriation acts. Id. para. 21. The locations are not
publicly identified, both to protect the classified nature of
the intelligence programs that are funded and to protect the
classified intelligence methods used to transfer funds to and
between intelligence agencies. Id. Sections 5(a) and 8(b) of
the CIA Act of 1949, 50 U.S.C. Sec. Sec. 403f, 403j, provide
the legal authorizations for the secret transfer and spending
of intelligence funds. Id. para. 23. DCI Tenet has asserted
that since there are a finite number of places where
intelligence funds may be hidden in the federal budget, a
budget analyst could construct a hypothetical intelligence
budget by aggregating suspected intelligence line items from
the publicly-disclosed appropriations and that repeated
disclosures of either the budget request or the budget
appropriation would provide more data with which to test and
refine the hypothesis. Id. Plaintiff denies the viability of
this argument but provides no conclusive evidence of its
implausibility.
Several courts have held that information tending to reveal
the secret transfer and spending of intelligence funds is
exempt from disclosure under FOIA as an "intelligence
method." See e.g., Military Audit Project v. Casey, 656 F.2d
724, 745 (D.C. Cir. 1981). Therefore, because DCI Tenet has
determined that release of the total budget request would
tend to reveal secret budgeting mechanisms constituting
"intelligence methods," it is also exempt from disclosure
under FOIA Exemption 3.
conclusion
The Declarations of DCI Tenet logically establish that
release of the Administration's budget request for fiscal
year 1999 could reasonably be expected to result in harm to
the national security and to reveal intelligence "sources
and methods." On the basis of these declarations and the
entire record in this case as well as the discussion above,
this Court will grant the CIA's Motion for Summary Judgment.
An order will accompany this Memorandum Opinion.
November 12, 1999.
Thomas F. Hogan,
United States District Judge.
Order
In accordance with the accompanying memorandum opinion, it
is hereby
ORDERED that Defendant Central Intelligence Agency's Motion
for Summary Judgment is granted. It is further hereby
ORDERED that this case is dismissed with prejudice.
November 12, 1999.
Thomas F. Hogan,
United States District Judge.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Indiana (Mr. Roemer).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Mr. ROEMER. Mr. Chairman, I demand a recorded vote, and pending that,
I make the point of order that a quorum is not present.
The CHAIRMAN. Pursuant to House Resolution 506, further proceedings
on the amendment offered by the gentleman from Indiana (Mr. Roemer)
will be postponed.
The point of no quorum is considered withdrawn.
[...]
Congressional Record: May 23, 2000 (House)
Page H3535-H3537