The Tenet Declaration was submitted in response to an FAS lawsuit seeking disclosure of the amount of the intelligence budget request. It is quite unusual for an agency head to intervene in a FOIA lawsuit in this way, according to Kate Martin of the Center for National Security Studies, who is representing FAS in the lawsuit.
The intelligence budget had remained an official secret for fifty years until the total appropriation was disclosed in 1997 in response to an earlier FAS lawsuit. The CIA had little choice but to disclose the budget figure, since President Clinton had publicly determined that disclosure "will inform the public and will not, in itself, harm intelligence activities."
At that point, routine disclosure of the budget appropriation as well as the intelligence budget request for the coming year appeared to be a non-controversial next step. After all, annual disclosure of both figures had been recommended by such luminaries as: Warren Rudman, the Chairman of the President's Foreign Intelligence Advisory Board; Anthony Harrington, the PFIAB Vice Chairman; Senator John Warner, the new Chairman of the Senate Armed Services Committee; Rep. Porter Goss, the Chairman of the House Permanent Select Committee on Intelligence (despite their recommendation, Sen. Warner and Rep. Goss later voted against requiring disclosure of the budget figures); Britt Snider, who is now the CIA Inspector General; and a host of other officially sanctioned experts.
But oddly, all of this now seems to count for nothing, and most of Mr. Tenet's Declaration could have been drafted at any point during the cold war, when a superpower adversary really was trying to collect and analyze each and every scrap of information about U.S. intelligence. It is hard to understand exactly what Mr. Tenet fears that Iraq, North Korea, or even China would do with an official disclosure of the budget request figure. The mystery is compounded by the fact that the DCI submitted a second, classified Declaration to the court, whose contents have not been disclosed. An intelligence community official who has read the second Declaration told S&GB that "It strengthens the [CIA's] case, but it's still a judgment call."
Some of Mr. Tenet's principal arguments to justify the continuing secrecy of the intelligence budget request are presented below. The full text of his Declaration may be found at www.fas.org/sgp/foia/tenet1298.html.
Tenet: "The difference between the appropriation for one year and the Administration's budget request for the next year provides a measure of the Administration's unique, critical assessment of its own intelligence programs.... A requested budget increase reflects a decision that existing intelligence programs are insufficient to meet our national security needs... Disclosure of the budget request would provide foreign governments with [an] overall assessment of [U.S.] intelligence weaknesses and priorities."
A Washington Post editorial (12/28/98) about the lawsuit rebutted this argument this way: "Agencies generally ask Congress for more money." If America's foreign enemies want to infer intelligence weaknesses from that mundane fact, they should be welcome to try and do so.
Tenet: "Disclosure of the budget request reasonably could be expected to assist foreign governments in correlating specific spending figures with particular intelligence programs.... Budget figures provide useful benchmarks that ... assist experienced intelligence analysts in reaching accurate estimates of the nature and extent of all sorts of intelligence activities."
The budget request only represents proposed spending, much of which will be modified in the course of the budget process. The request is therefore even farther removed from revealing anything about specific spending figures than are the actual appropriation numbers that the CIA has previously disclosed.
Tenet: "Disclosure of the budget request would jeopardize intelligence sources and methods because disclosure would tend to reveal how and for what purposes intelligence appropriations are secretly transferred to and expended by intelligence agencies..."
Remarkably, DCI Tenet included as an Exhibit to his Declaration a page from the FAS web site, prepared by John Pike, that presents an estimated budget for the CIA derived from public budget sources.
In preparation for a reply to the CIA that will be filed by Kate Martin on January 28, Mr. Pike challenged the premise of Mr. Tenet's argument. "The only 'classified intelligence method used to transfer funds to and between intelligence agencies' that could be discerned from the public record is the fact that the bulk of the CIA budget is appropriated in the Air Force budget, something that has been well known for many years. In any event, this fact cannot be deduced simply from the top-line total intelligence budget number."
But if one eschews cynicism for a moment, a clue may be found in Tenet's description of his decision to declassify the 1998 budget total: "Because the 1998 appropriation represented approximately a $0.1 billion increase -- or less than a 0.4 percent change -- over the 1997 appropriation... 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."
In other words, the size of the annual difference in spending is Tenet's criterion for determining damage to national security in this matter.
In contrast to the 1998 appropriation, which was nearly identical to that of 1997, the 1999 budget involves an increase over the 1998 funding level that is significantly larger than 0.4%, according to press reports. This larger difference between the annual figures-- the "bump in the snake"-- seems to have triggered Agency concerns that if it were officially acknowledged it would become a focus of inquiry, leading somehow to the disclosure of sensitive intelligence sources and methods.
This was essentially DCI William Colby's argument in the 1970s, which was soundly rejected by the Senate Church Committee. "Assuming that an increase in the CIA's budget alerted hostile powers to some change in the Agency's activities," the Committee concluded in its 1976 Report, "it would not in itself reveal what the new activity was-- a new covert action project, more material procurement, or an increase in analytical capability through mechanization."
The current FAS lawsuit thus becomes a belated re-trial of this argument's validity in the eyes of the court. Significantly, perhaps, the public interest in budget disclosure, affirmed by President Clinton and by numerous national security experts, did not enter into Mr. Tenet's calculation.
"The Community does have a case this year," an intelligence official insisted. "But you guys gotta keep doing what you're doing."
Following a new Pentagon policy promulgated in November, military agencies are quietly withdrawing many hundreds of pages of unclassified electronic documents from the world wide web, or placing them under access controls that prevent the general public from viewing them.
As recently as last summer, official Pentagon policy concerning the world wide web still dictated that "Information will be made fully and readily available, consistent with statutory requirements, unless its release is precluded by current and valid security classification."
But the new policy now states that even unclassified information "should not be accessible to the general public" on the Web unless it is "specifically cleared and marked as approved for public release."
"This is a wartime information policy," observed John Pike, who has monitored the disappearance of numerous web pages. "All kinds of program information is being withdrawn. Almost anything that discloses what an agency actually does, beyond a brief mission statement, is going away."
The new policy reflects a profound anxiety among defense officials about the power of the Internet, especially its capacity for aggregation and "data mining," and the potential vulnerabilities that may create. Deputy Secretary of Defense John J. Hamre warned in a September 24 memo that "the Web can ... provide our adversaries with a potent instrument to obtain, correlate and evaluate an unprecedented volume of aggregated information regarding DoD capabilities, infrastructure, personnel and operational procedures."
Unfortunately, in the exercise of their duties, Pentagon officials have elided the difference between classified and unclassified information. The new policy seems predicated on the notion that classified information may be latent in any and all unclassified information, waiting to be extracted by a clever analyst. This is a significant expansion of the traditional argument ("mosaic" theory) that compilations of unclassified information can sometimes be classified.
Bill Leonard, director of security programs for the assistant secretary of defense (C3I), defended the new policy. "We had a number of instances where people overlooked the first W in World Wide Web, and posted information that should not have received global distribution. In no way, shape, or form was there ever any intent to restrict legitimate public access to government information." However, he told S&GB on January 12, "It's possible that some individuals down the line have misinterpreted the policy, and have overreacted to it" by withdrawing more information than necessary from disclosure.
There appears to be a significant discrepancy between DoD's severe new limits on web publication and the more forthcoming disclosure requirements of the FOIA. In an effort to recover access to some portion of the suppressed information, FAS has filed several FOIA requests for copies of selected web pages that have been withdrawn from public access. To the extent that the requests are successful, the recovered pages will be re-hosted on the FAS web site.
The new plan restores a strict, near-absolute "risk avoidance" (as opposed to "risk management") strategy that will require page by page review of almost all of the more than a billion pages of 25 year old records awaiting declassification. Records cannot be automatically declassified under the new plan unless an agency official certifies a record group as "highly unlikely" to contain RD or FRD, i.e. sensitive nuclear information. But by doing so, the official runs the risk of sanctions for negligence if the record group should turn out to contain nuclear information after all. There is no incentive for an official to take such a risk.
The plan grants a surprisingly extensive new role to the Department of Energy, allowing DOE officials to supervise and evaluate the declassification programs of other agencies, and to conduct further reviews of documents that are already declassified. DOE classification guides have not been fully updated and the plan has no provision for distinguishing between RD/FRD that is still sensitive and that which is not.
A White House official minimized the adverse impact of the plan. He said that "the easy stuff" that could be automatically declassified "has already been declassified," and that most of the remainder would have had to undergo page by page review even without the new plan. "Most of DoD, all of CIA, and all of State were going to do page by page review" of their remaining records anyway, he said.
The unspoken question here is-- What will happen in April 2000? That is when executive order 12958 requires that all file series which have not been specifically exempted from disclosure "shall be automatically declassified whether or not the records have been reviewed." This requirement appears to be at odds with the provisions of the new plan, and it is not self-evident which will take precedence.
"The big crunch will come in April 2000," said the White House official, who said that that deadline so far remains in effect. "I have no doubt that all the major agencies will say that they can't meet the deadline, and they may hope for an extension. But I know of no disposition to do that."
Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.
The FAS Project on Government Secrecy is supported by a grant from the John S. and James L. Knight Foundation.