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
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2001 [...] Sequential Votes Postponed in Committee of the Whole The CHAIRMAN pro tempore. Pursuant to House Resolution 506, proceedings will now resume on those amendments on which further proceedings were postponed in the following order: amendment No. 1 by the gentleman from Indiana (Mr. Roemer); amendment No. 3 by the gentleman from Ohio (Mr. Traficant); amendment No. 4 by the gentleman from Ohio (Mr. Traficant). The Chair will reduce to 5 minutes the time for any electronic vote after the first vote in this series. Amendment No. 1 Offered by Mr. Roemer The CHAIRMAN pro tempore. The unfinished business is the demand for a recorded vote on the amendment offered by the gentleman from Indiana (Mr. Roemer) on which further proceedings were postponed and on which the noes prevailed by voice vote. The Clerk will redesignate 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 114 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.''. Recorded Vote The CHAIRMAN pro tempore. A recorded vote has been demanded. A recorded vote was ordered. The vote was taken by electronic device, and there were--ayes 175, noes 225, not voting 34, as follows: [Roll No. 214] AYES--175 Abercrombie Allen Baird Baldacci Baldwin Barcia Barrett (WI) Becerra Berkley Berman Berry Blagojevich Blumenauer Bonior Borski Boucher Boyd Brady (PA) Brown (FL) Campbell Capps Carson Chabot Clay Clayton Clyburn Condit Conyers Costello Coyne Crowley Cummings Danner Davis (FL) Davis (IL) DeFazio DeGette Delahunt DeLauro Deutsch Dicks Dingell Dixon Doggett Dooley Duncan Engel Eshoo Etheridge Evans Farr Fattah Filner Ford Frank (MA) Frost Ganske Gephardt Gonzalez Goode Goodlatte Green (TX) Gutierrez Hastings (FL) Hill (IN) Hilliard Hinchey Hoeffel Holden Holt Hooley Inslee Istook Jackson (IL) Jackson-Lee (TX) Jefferson Johnson, E. B. Kanjorski Kaptur Kennedy Kildee Kilpatrick Kind (WI) Kucinich LaFalce Lampson Lantos Leach Lee Levin Lewis (GA) Lipinski Lofgren Lowey Luther Maloney (CT) Maloney (NY) Manzullo Markey Mascara Matsui McCarthy (MO) McDermott McGovern McKinney Meek (FL) Meeks (NY) Menendez Metcalf Millender-McDonald Miller, George Mink Moore Moran (VA) Morella Myrick Nadler Napolitano Neal Obey Olver Owens Pallone Pascrell Pastor Paul Payne Pelosi Peterson (MN) Petri Phelps Pomeroy Porter Price (NC) Rangel Rivers Roemer Rohrabacher Rothman Roybal-Allard Rush Sabo Sanchez Sanders Sandlin Sawyer Schaffer Schakowsky Serrano Sherman Slaughter Smith (WA) Snyder Spratt Stabenow Stark Strickland Tanner Tauscher Thompson (MS) Thurman Tierney Towns Udall (CO) Udall (NM) Upton Velazquez Vento Visclosky Waters Watt (NC) Wexler Weygand Woolsey Wynn NOES--225 Aderholt Andrews Archer Baca Bachus Baker Ballenger Barr Barrett (NE) Bartlett Bass Bateman Bentsen Bereuter Biggert Bilbray Bilirakis Bishop Bliley Boehlert Boehner Bonilla Bono Boswell Brady (TX) Burr Burton Buyer Callahan Calvert Camp Canady Cannon Cardin Castle Chambliss Clement Coble Coburn Collins Combest Cook Cox Cramer Crane Cubin Cunningham Davis (VA) Deal DeMint Diaz-Balart Doolittle Doyle Dreier Dunn Edwards Ehlers Ehrlich Emerson English Everett Ewing Fletcher Foley Fowler Franks (NJ) Frelinghuysen Gallegly Gejdenson Gekas Gibbons Gilchrest Gillmor Gilman Goodling Gordon Goss Graham Granger Green (WI) Greenwood Gutknecht Hall (OH) Hall (TX) Hansen Hastings (WA) Hayes Hayworth Hefley Herger Hill (MT) Hilleary Hinojosa Hobson Hoekstra Horn Hostettler Houghton Hoyer Hulshof Hunter Hutchinson Hyde Isakson Jenkins John Johnson (CT) Johnson, Sam Jones (NC) Kasich Kelly King (NY) Kingston Kleczka Klink Knollenberg Kolbe Kuykendall LaHood Largent Latham LaTourette Lewis (CA) Lewis (KY) Linder LoBiondo Lucas (KY) Lucas (OK) McCollum McCrery McHugh McInnis McIntyre McKeon McNulty Mica Miller (FL) Miller, Gary Mollohan Moran (KS) Murtha Nethercutt Ney Northup Norwood Nussle Ortiz Ose Oxley Packard Pease Peterson (PA) Pickering Pickett Pitts Portman Pryce (OH) Quinn Radanovich Rahall Ramstad Reyes [[Page H3536]] Reynolds Riley Rogan Rogers Ros-Lehtinen Roukema Royce Ryan (WI) Ryun (KS) Salmon Sanford Saxton Scott Sensenbrenner Sessions Shadegg Shaw Shays Sherwood Shimkus Shows Shuster Simpson Sisisky Skeen Skelton Smith (MI) Smith (NJ) Smith (TX) Souder Spence Stearns Stenholm Stump Sununu Sweeney Talent Tancredo Tauzin Taylor (MS) Taylor (NC) Terry Thomas Thompson (CA) Thornberry Thune Toomey Traficant Turner Vitter Walden Walsh Wamp Watkins Watts (OK) Weldon (FL) Weldon (PA) Weller Whitfield Wicker Wilson Wolf Wu NOT VOTING--34 Ackerman Armey Barton Blunt Brown (OH) Bryant Capuano Chenoweth-Hage Cooksey DeLay Dickey Forbes Fossella Jones (OH) Larson Lazio Martinez McCarthy (NY) McIntosh Meehan Minge Moakley Oberstar Pombo Regula Rodriguez Scarborough Stupak Tiahrt Waxman Weiner Wise Young (AK) Young (FL) {time} 1050 Messrs. SHIMKUS, WAMP, and BURTON of Indiana changed their vote from ``aye'' to ``no.'' Mr. CAMPBELL changed his vote from ``no'' to ``aye.'' So the amendment was rejected. The result of the vote was announced as above recorded. Stated against: Mr. FOSSELLA. Mr. Chairman, I am not recorded on rollcall No. 214, an amendment to H.R. 4392. I was unavoidably detained and was not present to vote. Had I been present, I would have voted ``no'' on rollcall No. 214. [...] personal explanation Mr. TIAHRT. Mr. Chairman, I was unavoidably detained today and missed rollcall vote Nos. 214-216, Rollcall vote No. 214 was a Roemer amendment to H.R. 4392, the Intelligence Authorization Act for Fiscal Year 2001; rollcall vote Nos. 215 and 216 were Traficant amendments to H.R. 4392. Had I been present, I would have voted ``no'' on rollcall vote number 214 and ``aye'' on rollcall votes 215 and 216. personal explanation Mr. OBERSTAR. Mr. Chairman, during the consideration of the Intelligence Authorization legislation (H.R. 4392) this morning, my vote was not recorded on several rollcall votes. Had I been present, I would have voted ``aye'' on rollcall 214; I would have voted ``aye'' on rollcall vote 215; and I would have voted ``aye'' on rollcall vote 216. personal explanation Mr. MINGE. Mr. Chairman, on rollcall Nos. 214, 215, and 216, I was physically ill and unable to vote. Had I been present, I would have voted ``aye'' on all said votes. The CHAIRMAN pro tempore. If there are no other amendments, the question is on the committee amendment in the nature of a substitute, as amended. The committee amendment in the nature of a substitute, as amended, was agreed to. ____________________