Secrecy News

Intelligence Budgets on a Downward Slope

Intelligence community budgets appear set to continue on the modest downward slope of the last several years.

The Office of the Director of National Intelligence said yesterday that it was requesting $53.5 billion for the National Intelligence Program (NIP) in FY 2017, a slight reduction from the $53.9 billion that was requested for the NIP in FY 2016. (The amount actually appropriated has not yet been disclosed.)

“Recognizing the challenges of this fiscal environment, the IC continues to review its operational, investment, and infrastructure programs to identify areas for savings. The Budget reflects the results of a deliberative process to ensure that the IC focuses on those programs that have the most impact and highest priority,” ODNI said in a fact sheet on the FY 2017 request.

Meanwhile, the Department of Defense said that it was requesting $16.8 billion for the Military Intelligence Program (MIP) in FY 2017, down from the $17.9 billion requested for the current fiscal year.

Public disclosure of the NIP budget request was required by Congress in the FY 2010 intelligence authorization act. But there is no corresponding requirement for DoD to publicly report the amount of its annual budget request for the MIP.

The practice of voluntarily declassifying and disclosing the MIP budget request was started by James R. Clapper when he was Under Secretary of Defense (Intelligence). Doing so “made sense,” he said recently, particularly since the NIP budget figure had to be released anyway.

Some Members of Congress expressed disappointment that the Obama Administration did not also voluntarily disclose the budget requests of individual intelligence agencies.

“There is no transparency there — they’re complying with the thinnest of laws about the [aggregate] number,” said Rep. Peter Welch (D-VT). “Members of Congress and the American public really are learning nothing.” See “Obama Keeps Public in Dark About ‘Black Budget’ Requests” by Steven Nelson, U.S. News, February 9.

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The U.S. Constitution in Article I (Section 9) requires a public “Statement and Account” of the government’s receipt and expenditure of all money.

Past attempts to invoke this requirement to challenge intelligence budget secrecy have foundered on a 1974 US Supreme Court ruling in U.S. v. Richardson which said that a taxpayer lacked “standing” to make the argument in court.

But in a recent law review article, Chapman University professor Lawrence Rosenthal argued that this is not, or should not be, the end of the story, and that the Statement and Account clause may still have potency against secret intelligence expenditures.

“In terms of its text, original meaning, and its place in constitutional ethos and structure, the [Statement and Account] clause is comprehensible only if it is understood as a mechanism that enables the people to effectively hold the government accountable for its use of public funds. Disclosing an aggregate figure without more makes the clause a bit of foolscap…. If the clause requires only a meaningless and ineffectual disclosure, however, it becomes impossible to explain what it is doing in the Constitution.”

“Perhaps the level of disclosure required if we take the clause seriously would put the United States at a disadvantage when compared to other nations that fund their intelligence communities in secret. Or perhaps the resulting accountability would make our intelligence community stronger; we will never know unless we adopt a more transparent regime. Ultimately, however, the constitutional question about disclosure of intelligence spending does not turn on considerations of policy but on the Statement and Account Clause itself. If we take the clause seriously, the current regime cannot stand.”

See “The Statement and Account Clause as a National Security Freedom of Information Act” by Lawrence Rosenthal, Loyola University Chicago Law Journal, Volume 47, No. 1, Fall 2015.