FAS | Government Secrecy ||| Index | Search | Join FAS


FAS Intro: The following memorandum, filed in federal district court on 14 May 1999, responds to CIA's motion for summary judgment on the FAS lawsuit which seeks disclosure of the total intelligence budget request and appropriation for fiscal year 1999. In particular, this memorandum responds to the arguments against disclosure presented in the April 6 Declaration of DCI George J. Tenet.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

         
___________________________________
STEVEN AFTERGOOD                   )
on behalf of the                   )
FEDERATION OF AMERICAN SCIENTISTS  )
                                   )
     Plaintiff,     		   )
                                   )
v.                                 )		Case No. 1:98CV02107(TFH)
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
     Defendant.                    )
___________________________________)

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO SUMMARY JUDGMENT

Respectfully submitted,

KATE MARTIN
D.C. Bar No. 949115
Center for National Security Studies
2130 H Street, NW
Gelman Library, Suite 701
Washington, DC 20037
Telephone: (202) 994-7060

Counsel for Plaintiff

Dated: May 14, 1999


TABLE OF CONTENTS

INTRODUCTION

STATEMENT OF FACTS

DEFENDANT'S MOTION FOR 
SUMMARY JUDGMENT SHOULD BE DENIED

	I.  The CIA Has Not Established that the Information is 
	Exempt under Section (b)(1)

		A.	The CIA's assertion that disclosure of the total budget 
			amounts would be harmful to the national security is 
			inconsistent with the President's determination to the contrary

		B.	The CIA's assertion that disclosure of the total budget 
			amounts would be harmful to the national security is 
			inconsistent with past practice and is illogical on its face

		C.	There is evidence of bad faith in that the CIA attempting to 
			conceal from the American people the fact that in FY 1999, 
			the intelligence budget was significantly increased

	II.  The CIA has failed to establish that the total budget 
		amounts constitute an "intelligence method" exempt 
		from disclosure under (b)(3)

CONCLUSION


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

         
___________________________________
STEVEN AFTERGOOD                   )
on behalf of the                   )
FEDERATION OF AMERICAN SCIENTISTS  )
                                   )
     Plaintiff,     		   )
                                   )
v.                                 )		Case No. 1:98CV02107(TFH)
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
     Defendant.                    )
___________________________________)

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO SUMMARY JUDGMENT

INTRODUCTION

This is a lawsuit seeking disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C. sec. 552, of the total amount of the intelligence budget appropriated by Congress for fiscal year 1999 and the total amount requested by the Administration for that year. Plaintiff Steven Aftergood is a senior research analyst at the Federation of American Scientists, a policy, research and advocacy organization founded by Manhattan Project scientists in 1945 and currently sponsored by some 60 American Nobel laureates in the sciences. Aftergood Declaration, par. 1.

In 1994, the Congress specifically directed a commission of bipartisan national security experts to examine, as part of a study on the proper role of intelligence after the end of the Cold War, whether the budget request and appropriations figures could be released without harming the national security. In 1996, they unanimously determined that both these figures could be safely disclosed and recommended to the President that he do so.

In response, in April, 1996, President Clinton announced that he was "authorizing" release of the total amount of the intelligence budget, as its disclosure would not harm the national security, but would in fact benefit the public. When the number was not released, plaintiff Aftergood requested it from the CIA under the Freedom of Information Act. But the agency refused to declassify it. Plaintiff thereupon filed suit, and, faced with defending its refusal before the court, in October 1997, the Director of Central Intelligence for the first time since World War II released the total amount of the intelligence budget. After this release of the fiscal year 1997 budget, plaintiff Aftergood again sought and ultimately secured release of the fiscal 1998 budget. The CIA now, however, refuses to disclose either the total appropriations figure for fiscal year 1999 or the total request. The defendant's arguments are flawed; by their logic, the Director of Central Intelligence's actions in releasing the budget numbers for FY 97 and FY 98 would have been harmful to the national security.

STATEMENT OF FACTS

In April 1996, President Clinton determined that disclosure of the annual amount appropriated for intelligence purposes would not harm intelligence activities, and he authorized its disclosure. Indeed, he recognized that such disclosure would inform the public -- giving them information most central to democracy: how tax dollars are being spent. As explained by then-Director of Central Intelligence John Deutch, President Clinton "is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and will not, in itself, harm intelligence activities." 1

The White House announced the President's determination as part of an announcement of "several significant reforms for the Intelligence Community," building on a report issued by a bipartisan group of national security experts, the Commission on the Roles and Capabilities of the United States Intelligence Community ("Brown Commission").2 The Brown Commission's bipartisan members, appointed by the President and the Congress, included: Sen. Warren B. Rudman, the current Chairman of the President's Foreign Intelligence Advisory Board (PFIAB); Gen. Lew Allen, Jr. USAF (Ret.), the former Air Force Chief of Staff and former Director of the National Security Agency; Sen. John Warner, now the Chairman of the Senate Armed Services Committee; and Mr. Robert J. Hermann, the former Director of the National Reconnaissance Office.3 The Commission was chartered by statute in 1994 to examine "the efficacy and appropriateness" of U.S. intelligence policies including "to what extent, if any, should the budget for United States intelligence activities be publicly disclosed." 4

In its final report, the bipartisan Commission unanimously recommended that "at the beginning of each congressional budget cycle, the President or a designee disclose the total amount of money appropriated for intelligence activities for the current fiscal year (to include NFIP, JMIP, and TIARA) and the total amount being requested for the next fiscal year."5

President Clinton's acknowledgment that disclosure of the budget amount would not harm the national security meant that there was no basis to classify such information under Executive Order 12958 ("Classified National Security Information") because that Order states that information may be classified only if its disclosure "reasonably could be expected to result in damage to the national security," sec. 1.2(a)(4).

Nevertheless, the President did not release the then-current budget number for fiscal year 1997, but instead "authorized Congress to make public the total appropriation." Exhibit 2. Plaintiff Aftergood, on behalf of the Federation of American Scientists, therefore sought release of the amount under the Freedom of Information Act. Aftergood Declaration, par. 3. The CIA initially denied the request, claiming that the information was exempt from disclosure under both section (b)(1) of the FOIA because it is properly classified and under section (b)(3) because it would tend to reveal intelligence sources and methods. Id. Upon appeal, the CIA acknowledged that the (b)(3) sources and methods exemption does not apply to the intelligence budget total, but it continued to claim the (b)(1) exemption. Aftergood Declaration, par. 3. Plaintiff filed suit under the Freedom of Information Act pointing out that, given the President's determination of no harm, "the CIA's refusal to release the total intelligence budget figure is in violation of the law." D.D.C. No. 97-CVO1096 (TFH). Finally, on the day the agency was due to file its Vaughn affidavit, on October 15, 1997, the CIA released the amount appropriated for fiscal year 1997. Aftergood Declaration, par. 4.

In October 1997, plaintiff then asked for the amount appropriated for fiscal year 1998.6 Aftergood Declaration, par. 5. The CIA released the information in March 1998, although only after again being threatened with a lawsuit. Id.

In the meantime, in January 1998, plaintiff Aftergood requested the amount of the total budget request submitted by the Administration for fiscal year 1999. Defendant's Statement of Material Facts, par. 1. The CIA agreed to expedite the request based on the "compelling need" to inform the public concerning the amount of the pending budget request. Defendant's Statement of Material Facts, par. 2. As plaintiff explained, the requested amount was needed to enable public participation in the budget appropriation process. Aftergood Declaration, par. 6. Although the CIA agreed to expedited processing, it failed to respond to the request. On August 31, 1998, plaintiff filed this suit. On November 23, 1998, the CIA finally answered the request, refusing the information on the grounds that it is classified. Defendant's Statement of Material Facts, par. 4. On December 11, the CIA filed an affidavit by Director George Tenet arguing that the budget request is exempt from disclosure under (b)(1) and (b)(3) of the Freedom of Information Act, the latter because the requested information "would jeopardize intelligence sources and methods." Tenet Declaration filed Dec. 11, 1998, par. 20.

In October 1998, plaintiff asked for disclosure of the total amount of the intelligence budget for fiscal year 1999 and, after exhausting his administrative remedies, amended his complaint on February 8, 1999 to include the amount in this lawsuit. Defendant's Statement of Material Facts, pars. 5-9. On April 6, 1999, the CIA filed a second affidavit by DCI Tenet arguing that both the amount of the administration's budget request and the actual amount appropriated are exempt from disclosure. While the DCI continued to assert the applicability of both exemption (b)(1) and (b)(3), he no longer claimed that disclosure of the requested budget amount would disclose intelligence sources, as he had in the affidavit filed four months earlier.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
SHOULD BE DENIED.

Defendant CIA seeks summary judgment that the requested and appropriated amounts of the FY 1999 intelligence budget are exempt from disclosure under the Freedom of Information Act, ("FOIA"), 5 U.S.C. sec. 552. The CIA argues first that the information is "properly classified" under Executive Order 12958 and therefore exempt under 5 U.S.C. sec. 552 (b)(1) and second that release of the figures would tend to reveal intelligence methods that are exempted from disclosure by statute under 5 U.S.C. sec. 552 (b)(3).

Even when asserting national security exemptions, an agency bears the burden to justify exemptions under FOIA. Campbell v. Department of Justice, 164 F.3d, 20, 30, (D.C. Cir. 1998) citing PHE, Inc. v. Department of Justice, 983 F.2d 248, 250 (D.C.Cir. 1993). While a declaration from an appropriate official in support of summary judgment merits "substantial weight," Id. at 30 (citing King v. Department of Justice, 830 F.2d 472, 480 (D.C.Cir. 1980)), in determining whether information is exempt from the disclosure requirements of the FOIA, this Court must "determine the matter de novo". 5 U.S.C. sec. 552(a)(4)(B). And the Court of Appeals has made it clear that according deference to agency declarations "is not equivalent to acquiescence." Campbell v. Department of Justice, 164 F.3d at 30 (reversing grant of summary judgment to FBI that information was properly exempt on national security grounds under exemption 1). Specifically, the government is not entitled to summary judgment where its declaration in support of exemption fails to account for contrary record evidence or is evidence of bad faith. Campbell v. Department of Justice, 164 F.3d, at 30 (citing King v. Department of Justice, 830 F.2d at 218).

Here, defendant CIA's argument that the requested information is exempt from disclosure under FOIA exemptions 1 and 3 rests on the Declaration of the Director of Central Intelligence ("DCI"). But the CIA is not entitled to summary judgment under exemption 1 because the DCI's Declaration fails to account for contrary record evidence and because it evidences bad faith. The CIA is not entitled to summary judgment under exemption 3 because disclosure of the requested information would not reveal intelligence methods.

I. The CIA Has Not Established that the Information is
Exempt under Section (b)(1)

A. The CIA's assertion that disclosure of the total budget amounts
would be harmful to the national security is
inconsistent with the President's determination to the contrary.

The CIA never even mentions that the DCI's declaration is directly contradicted by President Clinton's determination that "disclosure of the annual amount appropriated for intelligence purposes will inform the public and will not, in itself, harm intelligence activities."7 The President determined to accept the recommendation of a congressionally chartered commission that "at the beginning of each congressional budget cycle, the President or a designee disclose the total amount of money appropriated for intelligence activities for the current fiscal year (to include NFIP, JMIP, and TIARA) and the total amount being requested for the next fiscal year."8 The long-standing view of the Executive Branch has always been that such determinations concerning classification of information are the responsibility and indeed, constitutionally, the sole responsibility of the President. The DCI is constitutionally only an "inferior officer" appointed by the President, whose authority to classify information is only delegated authority from the President. Tenet Declaration, par. 14. The DCI offers no explanation as to how he can reach a determination contrary to that of the President concerning harm to the national security. He does not and cannot account for how his position squares with the President's determination that disclosure would not harm the national security.9 On this ground alone, summary judgment must be denied.

B. The CIA's assertion that disclosure of the total budget amounts
would be harmful to the national security is inconsistent
with its past practice and is illogical on its face.

Nor does the DCI explain why disclosure of the total budget for FY 1999 would be harmful to the national security when disclosure of the total budgets for FY 1997 and FY 1998 was not harmful. To the contrary, his arguments about why disclosing the FY 1999 budget would be harmful would, if correct, apply with equal force to his earlier disclosures.

The three arguments advanced by the CIA that disclosing the total budget numbers for FY 1999 would harm the national security all come down to an assertion that foreign adversaries could use the numbers to learn something useful to them about U.S. intelligence activities. The CIA argues that disclosure would be harmful for three reasons: (1) that it "reasonably could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses" Memorandum of Points and Authorities at 10, quoting Tenet Declaration par. 15; (2) that it "reasonably could be expected to assist foreign governments in correlating specific spending figures with particular intelligence programs," Id. at 11, quoting Tenet Declaration, par. 18; and (3) that disclosure "could be expected to free foreign governments' limited collection and analysis resources for other efforts targeted against the United States, Id. at 13, quoting Tenet Declaration, par. 22.

Each of these assertions necessarily implies that foreign adversaries could use the total budget figures to reverse engineer some more specific information that would then be useful to them in these ways. But even if such reverse engineering were possible and disclosure of the total budget numbers would reveal some hitherto unknown and more specific information to intelligence analysts, then the DCI's disclosures of the 1997 and 1998 amounts would have been harmful to the national security.

The DCI offers no reason why revealing the numbers for FY 1997 and 1998 was different and not harmful. To the contrary, the DCI's assertions about disclosing the 1999 budget apply with even greater force to the two earlier disclosures. For example, the DCI states, "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 reflects [sic] 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." Tenet Declaration, par. 16. But the DCI himself previously disclosed the total budget appropriation for two years in a row thereby, by his logic, enabling U.S. adversaries to perform the very analysis that the DCI now claims would damage national security.

The DCI's assertion that when he released the totals for FY 1997 and 1998, he reserved making a decision about future years, is not of course an explanation about why disclosure is harmful now if it was not harmful then. The only hint contained in his declaration is the statement that in deciding to release or withhold the numbers, he considers information publicly available in press reports, among other sources. This is a curious statement, since at the time of revealing the information for the two previous years, the DCI could not know what additional information might appear in the press. It is also inconsistent with the CIA's oft-repeated assertion that the official confirmation of publicly known information provides something of value to foreign adversaries and therefore is grounds for withholding information.

In sum, the CIA's own previous disclosures contradict its current assertion of harm.

Even in the absence of such prior disclosures, however, the DCI's assertion that foreign adversaries could reverse engineer some useful information from knowing the total budget amounts is itself unsupported and on its face contrary to both common sense and logic.

The total budget amount includes the budgets for numerous agencies and hundreds of programs. It includes, for instance, the budgets of the National Foreign Intelligence Program (NFIP), the Joint Military Intelligence Program (JMIP), and the Tactical Intelligence and Related Activities (TIARA) program. Each of these components in turn is comprised of numerous smaller components.

And significantly, these components may vary from year to year. What we call "the intelligence budget" is a substantially arbitrary construct, an artifact of the budgeting process. As then-DCI R. James Woolsey explained, "[I]t is extremely difficult to identify a reliable and stable number that can capture what we spend on intelligence. ... [T]he Tactical Intelligence and Related Activities (TIARA) component is neither a separate nor a clearly defined program, but a loose amalgamation of activities that may vary from year to year, depending on how the various military services decide what constitutes tactical intelligence."10

In arguing that foreign adversaries could reverse engineer some useful information from knowing the bottom line total budget figure, the DCI offers no evidence or explanation that such reverse engineering is in fact possible given the large number of variables in the make-up of the total budget and the fact that the composition of the budget varies from year to year.11 Without evidence or explanation, the bare assertion of reverse engineering is simply not credible.

Moreover, there is evidence to the contrary. Two of the United States's closest allies and intelligence partners, the United Kingdom and Australia, both disclose their total intelligence budget.12 If such reverse engineering were possible, both the UK and Australia would have every reason to keep their budgets secret as well.13 Furthermore, Federation of American Scientists staff member, John Pike, whose budget analysis was submitted by the CIA as "an example of the kind of hypothetical intelligence budgets produced by budget analysts" that would be aided by disclosures of the budget numbers, (Mem. of Points and Authorities at 18 and Exh. C), has explained that knowing the total amount of the intelligence budget is not in fact helpful in performing the budget analysis. As an experienced budget analyst, Mr. Pike points out that the total budget is an aggregate of a very large number of agency and program budgets, which are for the most part individually very small relative to the total and which vary from year to year as to whether they are even included in the total. Thus, the total budget amount is arrived at by a process that is not apparent to external observers, and it is not possible to take the budget totals and deduce anything about specific spending at individual agencies or programs. Mr. Pike was unable to take the official budget totals as disclosed in 1997 and 1998 and retrospectively to identify in the published budget where specific amounts were located.14

Finally, while the CIA asserts that disclosure of the total budget amounts will reveal useful information to foreign adversaries about U.S. intelligence activities, much of such information has already been officially disclosed by CIA officials, including DCI Tenet himself and others. Indeed, the DCI has provided details to the New York Times about how the CIA will spend its FY 1999 appropriation, the very information he now claims would be revealed to the detriment of national security if the total budget amounts were released. Thus, the Times reported:

Thus, even if disclosure of the total amounts did make possible such reverse engineering, it would add nothing new to what is already known. The United States has made a practice of publicly assessing its own intelligence capabilities and weaknesses and priorities. Year after year, in press statements and testimony on the Hill, officials at the CIA and other intelligence agencies explain their priorities, assess their capabilities and weaknesses, and describe the need for more money for "eroding" programs. The DCI's affidavit again is silent on how disclosure of the budget totals would add anything to the information already officially disclosed by the CIA itself.

For example, while the DCI argues that disclosure of the budget request would be harmful because it "could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses, " because "[t]he difference between the appropriation for one year and the Administrations budget request for the next year provides a measure of its own intelligence programs," Tenet Declaration, par. 17, such assessments are already publicly provided. For example, in January 1998, in considering the Intelligence Community budget for fiscal year 1999, Congress heard public testimony from DCI Tenet, as well as from others whose budgets are included in the intelligence total, including the Director of the Defense Intelligence Agency and the Assistant Secretary of State for Intelligence and Research.16 All gave detailed assessments of the greatest threats to the United States and their concomitant priorities for the coming year.17 DCI Tenet said, for example:

And the leadership of the House of Representatives, in statements presumably cleared with the CIA, provided similar details about this year's intelligence spending. House Intelligence Committee Chairman Porter Goss presented the Congress' assessment of U.S. intelligence weaknesses:

House Speaker Newt Gingrich confirmed Congress's view that "past cuts in intelligence had hurt key programs, including innovation of advanced technological collection techniques as well as espionage operations and analysis." 20

Many other examples exist where officials laid out the intelligence agencies' priorities and interests. In connection with the FY 1998 budget, DCI Tenet provided an assessment of the US Intelligence Community's own strengths and weaknesses:

Similarly, in 1996, then-DCI John Deutch numerous times described some of the projects of the CIA and Intelligence Community in detail. For example:

The kind of information that is already officially disclosed is perhaps best illustrated by the testimony of DCI Woolsey and DIA Director Gen. James Clapper concerning the FY 1995 intelligence authorization. It is quoted here at length, because it makes clear how much specific information about budgetary matters is officially disclosed as well as the impossibility of deducing such complex information from knowing the bottom-line totals:

It is evident that the kind of information concerning intelligence weaknesses, capabilities, and priorities that the DCI says could be deduced from the budget totals is routinely disclosed by intelligence officials to the Congress and the media.24

C. There is evidence of bad faith in that the CIA is attempting
to conceal from the American people the fact that in FY 1999,
the intelligence budget was significantly increased.

As President Clinton has recognized, disclosure of the size of the total intelligence budget benefits the public.25 The total amount appropriated for intelligence for FY 1997 was 26.6 billion dollars, and the amount appropriated for fiscal year 1998 was only slightly higher at 26.7 billion dollars. But there are credible reports of a substantial increase in the amount for FY 1999 to around $29 billion.26 In the absence of any credible explanation for why disclosure of the 1999 figure would be harmful when disclosure of the 1997 and 1998 figures was not harmful, the strong inference arises that the CIA is attempting to prevent any public discussion or debate about the apparently substantial increase in the budget. Classifying information in order to "prevent or delay the release of information that does not require protection in the interest of national security" not only violates Executive Order 12958 sec. 1.8(4), it is strong evidence of bad faith.

Summary judgment on the CIA's exemption 1 claim should be denied because the DCI's declaration is contradicted by contrary record evidence, and there is evidence of bad faith.

II. The CIA has failed to establish that
the total budget amounts constitute an "intelligence method"
exempt from disclosure under (b)(3).

The CIA also claims that the total budget amounts are exempt from disclosure under FOIA section (b)(3) because they would tend to reveal an intelligence method. In fact, as the CIA, prior to arguing this case, has acknowledged, disclosing the budget numbers does not reveal any intelligence method.

In reviewing the CIA's exemption 3 claim, this Court must determine whether the withheld material falls within the coverage of the statutory protection for sources and methods. Fitzgibbon v. CIA, 911 F.2d 755, at 761-762 (D.C. Cir. 1990). The CIA has failed to satisfy its burden of proof that the budget totals are intelligence sources or methods.

The CIA itself has repeatedly acknowledged that exemption (b)(3) for intelligence sources and methods does not apply to total budget figures. First, in 1995, in response to an earlier request by plaintiff for the amount of the total budget, the CIA acknowledged that the (b)(3) exemption for intelligence sources and methods does not apply.27 Then, in 1996, when plaintiff requested the total appropriation for FY 1997, the CIA's initial letter of denial cited both exemption (b)(1) and (b)(3), but the CIA then acknowledged that it had mistakenly asserted the (b)(3) sources and methods exemption and "apologized" for doing so.28 Moreover, if disclosing the total intelligence budget reveals a secret intelligence method, that information was already revealed when the DCI released the totals for FY 1997 and FY 1998. Once again, the DCI's declaration offers no explanation for his inconsistency in revealing last year what now allegedly constitutes an intelligence method. These past acknowledgments defeat the CIA's new litigation position that exemption (b)(3) does apply.

And, in raising (b)(3) as a defense to this lawsuit, the agency and the DCI himself have made shifting and inconsistent claims. In his first Declaration filed in this case in December 1998, the DCI claimed that the total amount of the request is exempt because it "would tend to reveal [both] intelligence sources and methods." Tenet Declaration of December 11, 1998, par. 23. But in his subsequent declaration, filed a mere four months later, the DCI no longer claims that intelligence sources could be improperly revealed by disclosure of the budget total.

Finally, as a matter of logic, it is clear that, as the CIA has previously acknowledged, the requested budget totals are not an intelligence method within exemption (b)(3). The DCI argues that disclosure of the total appropriation amount would reveal an intelligence method because it would facilitate determining which appropriation lines in the budget contain amounts for secret intelligence programs. But the argument is circular; the intelligence appropriations are hidden in various line items in order to conceal the budget total. If the total intelligence budget request and appropriation were public, these figures could then be identified in a single budget line item.

Publication of a single budget request and appropriation figure would actually enhance the security of the intelligence budget. It is the current practice of breaking up the intelligence budget and concealing it in separate line items that allegedly offers a skilled analyst a chance of "correlating specific spending figures with particular intelligence programs" (Tenet Declaration, par. 18) because it provides more information to analyze. Disclosing a single budget request and appropriation figure in a single line item instead of using multiple line items would obscure rather than illuminate the spending for particular intelligence programs. It is not an intelligence method.

CONCLUSION

For all the above reasons, defendant's motion for summary judgment that the requested information concerning the total amounts requested and appropriated for intelligence activities for FY 1999 is exempt from the disclosure requirements of the Freedom of Information Act should be denied.

Respectfully submitted,

______________________________
KATE MARTIN
D.C. Bar No. 949115
Center for National Security Studies
2130 H Street, NW
Gelman Library, Suite 701
Washington, DC 20037
(202) 994-7060
Counsel for Plaintiff

May 14, 1999


FOOTNOTES

1. STATEMENT OF DCI JOHN DEUTCH, INTELLIGENCE COMMUNITY REFORM, BEFORE THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE, U.S. House of Representatives, at 5 (April 23, 1996)[hereinafter cited as "DEUTCH"][attached hereto as Exhibit 1.]

2. The White House Press Secretary announced that, "reflecting the President's determination to promote openness in the Intelligence Community, he has authorized Congress to make public the total appropriation -- the bottom line figure -- for intelligence at the time the appropriations conference report is approved by Congress." STATEMENT BY THE PRESS SECRETARY, PRESIDENTIAL ANNOUNCEMENT ON INTELLIGENCE COMMUNITY REFORMS, April 23, 1996 [attached hereto as Exhibit 2].

3. L. Britt Snider, currently Inspector General of the CIA served as Staff Director of the Commission.

4. PUB. LAW NO. 103-359 (on establishment of the Commission on the Roles and Capabilities of the United States Intelligence Community).

5. REPORT OF THE COMMISSION ON THE ROLES AND CAPABILITIES OF THE UNITED STATES INTELLIGENCE COMMUNITY, PREPARING FOR THE 21ST CENTURY: AN APPRAISAL OF U.S. INTELLIGENCE, March 1, 1996 at 142 (emphasis added)[hereinafter cited as "COMMISSION REPORT"][attached hereto as Exhibit 3].

6. Congress usually appropriates the intelligence budget for the fiscal year beginning in October, in late summer or September.

7. DEUTCH, Exhibit 1 (emphasis added).

8. COMMISSION REPORT, Exhibit 3, recommendation 14-2, at 142

9. It may be worth noting that, after implementing the President's determination and releasing the total budget figures for two years, the CIA first announced that it would not release this year's figure on November 23, 1998, while the President was fighting impeachment proceedings.

10. STATEMENT OF DCI R. JAMES WOOLSEY, PUBLIC DISCLOSURE OF THE AGGREGATE INTELLIGENCE BUDGET FIGURE, Hearings before the Permanent Select Committee on Intelligence, U.S. House of Representatives, 103rd Cong, 2nd Sess. at 9 (Feb. 22, 1994)[attached hereto as Exhibit 4].

11. For example, a brand-new intelligence agency, the National Imagery and Mapping Agency was created in 1996.

12. COMMISSION REPORT, Exhibit 3, at 142.

13. A Senate Select Committee, as early as 1976, outlines the fallacy of the reverse engineering argument:

14. Pike Declaration, par. 8. The fact that Mr. Pike does not have access to classified information in no way undercuts this conclusion. Because the total figures are aggregates of spending for hundreds of programs, even the possession of "clandestinely acquired information" would not permit the inference of significant new information from the budget totals.

15. THE U.S. INTELLIGENCE CHIEF STEPS UP TO THE PLATE, New York Times, Oct. 23, 1998 [attached hereto as Exhibit 5].

16. S. HRG. 587, 105TH CONG., 2ND. SESS., CURRENT AND PROJECTED NATIONAL SECURITY THREATS TO THE UNITED STATES, Senate Select Committee on Intelligence (Jan. 28, 1998).

17. See, e.g., Statement of Director of Central Intelligence George J. Tenet before the Senate Select Committee on Intelligence, Hearing on Current and Projected National Security Threats to the United States 1-2 (Jan. 28, 1998)

18. Id. At that same hearing, the Defense Intelligence Agency Director also outlined how that agency "discern[s]" various threats to the United States and, therefore, what the agency will spend resources on. Statement of Lieutenant General Patrick M. Huges, Director, Defense Intelligence Agency, before the Senate Select Committee on Intelligence, Id. at 5-6.

19. U.S. House of Representatives Permanent Select Committee on Intelligence, Press Release, Chairman Porter Goss (R-FL) Hails Additional Funding for Intelligence (Oct. 21, 1998)[Attached hereto as Exhibit 6].

20. MUCH OF INTELLIGENCE FUNDING WILL GO TO SATELLITES, Wash. Post, Oct. 23, 1998 [Attached hereto as Exhibit 7].

21. S. Hrg. No. 201, 105th Cong., 1st Sess., Hearing on Current and Projected National Security Threats to the United States, 38 (Feb. 5, 1997).

22. Remarks of Director of Central Intelligence John Deutch, S. Hrg. No. 510, 104th Cong., 2nd Sess., Hearing on Current and Projected National Security Threats to the United States and its Interests Abroad, 7 (Feb. 22, 1996).

23. Remarks of Director of Central Intelligence R. James Woolsey, S. HRG. NO. 15, 104TH CONG., 1ST SESS., WORLDWIDE INTELLIGENCE REVIEW, 5-6 (Jan. 10, 1995).

24. There is no basis for arguing that the requested budget amount is more sensitive than the appropriated amount. To the contrary, the requested amount bears less relation to actual intelligence activities than does the total appropriation and is, therefore, even less sensitive.

25. DEUTCH, Exhibit 1.

26. Rep. Porter Goss, Chairman of the House Permanent Select Committee on Intelligence told the Associated Press just yesterday that "this year's spending on intelligence marked a sharp increase over 1998." HOUSE INCREASES CIA BUDGET, Associated Press, May 14, 1999. See also, e.g., BIG CASH INFUSION AIMS TO REBUILD ANEMIC C.I.A., NEW YORK TIMES, Oct. 22, 1998. [Both attached hereto as Exhibit 8].

27. Letter to Plaintiff Aftergood from Edmund Cohen, CIA Agency Release Panel Chairman, Feb. 28, 1995 [attached hereto as exhibit 9.]; Aftergood Declaration, par. 2

28. Letter to Plaintiff Aftergood from Lee S. Strickland, CIA Information and Privacy Coordinator, Jan. 17, 1997 (in response to Plaintiff's request under the Freedom of Information Act for disclosure of the "total aggregate intelligence budget for Fiscal Year 1991")[attached hereto as Exhibit 6]; Aftergood Declaration, par. 3




FAS | Government Secrecy ||| Index | Search | Join FAS