FAS | Gov't Secrecy | 5/11/98 Hearing || Index | Search |

I want to thank you for the opportunity to testify today about the proposed Human Rights Information Act, H.R. 2635.

I am here to speak about the effects such legislation would have on the current information review and release programs at CIA. In particular, it is our considered judgment that this legislation would be counterproductive given (1) our release accomplishments under current law, (2) the significant cost implications, and (3) the very real impact it would have on the ability of the United States to continue to obtain intelligence on human rights and other issues for the President and the Congress.

I would like to speak very briefly to each of these points and then return with some specific information and statistics to explain our position.

If time then permits, I would also offer some concerns regarding the practical impact of specific provisions of H.R. 2635.

First, let me address briefly our current record of accomplishments under existing release law and processes:

Similar proposed legislation has been under consideration for some time and I believe that the impetus comes from a perception that the CIA and other federal agencies have released little substantive information in response to the many FOIA and official inquiries related to Guatemala and Honduras human rights issues. Indeed, this is an issue which we have discussed with the staffs of our oversight committees on a regular basis and I believe that I can demonstrate that very much the opposite is true. In point of fact, the CIA has gone to extraordinary lengths to make information available to family members of human rights victims, the public, law enforcement entities, members of Congress, and, as appropriate, foreign governments conducting their own investigations of such abuses. Let me mention a few:

• the CIA left no stone unturned in its efforts to advise the family and associates of Father Carney of information pertinent to his likely death in Honduras, including not only released documents but a detailed assessments paper prepared especially for the family;

• the DCI has met personally with Dr. Valladares, the Honduran Human Rights Commissioner, and has directed that we assist him in every way possible with his pending information requests; and,

• my office has brought on new personnel resources and tools to address the many special searches and FOIA requests on human rights -- hundreds of requests have been completed and many hundreds of documents have been released.

This "special purpose" disclosure bill must be placed into perspective with all other CIA information release programs. In short, our experience is that mandated information release programs of this type tend to monopolize resources, introduce delays into the release of information on other important topics, and create inefficiencies and cost excesses in what would otherwise be the orderly and cost-effective release of information.

Again, while I will speak on this matter in more detail in a moment, let me offer just a few facts to demonstrate the already balkanized nature of information review and release (IRR) and the attendant costs:

• currently, there are over 20 different venues under which information review and release takes place;

• just one small, never funded disclosure program -- the JFK Assassination Records Act -- has grown from a modest, specialized activity six years ago to an industry today employing the equivalent of more than 35 full-time personnel at CIA alone; and,

• an approved withholding decision in one program rarely has binding effect in other venues: often, the Agency is forced to re-argue matters with all the attendant program, management, and legal costs.

We are not here to raise what some would characterize as the "tired old mantra of intelligence sources and methods."

Rather, there is one over-arching issue presented by this bill which is indeed a paradox. The laudable objective of the proposed legislation -- public disclosure of human rights abuse information -- would take place under standards that would virtually ensure that foreign nationals will not continue to cooperate with American intelligence on human rights and other issues, and that we, as a government, will lose access to the very information we need to formulate foreign policy and ensure the rule of law in other countries.

Some may question why this is so. The exemption provisions of this bill do not provide the confidentiality that sources or prospective sources demand and require. I am absolutely certain that few foreign nationals will provide the kind of information that the US Government needs -- knowing that ultimately or depending upon future circumstances they, their families, and their friends would be exposed as having cooperated with American intelligence.

Indeed, exactly such concerns are set out in detail in many documents that I personally review -- current sources reporting on human rights matters or past sources asking that their identities continue to be protected. What is common to both is that we have individuals explaining in detail how their identities must be protected or they face certain death or their families face public ostracism as well as penalties and abuse from their own governments.

In sum, the implications of H.R. 2635 are such that sources will be imperiled and the mission of CIA -- to support the Congress and the President -- will be disadvantaged.

With this introduction, I would like to return to our first major point and discuss in some detail our accomplishments under and the effectiveness of current law and processes.

Our responsiveness to public and Congressional interest in human rights cases significantly pre-dates this bill, continues today, and has even been enhanced. I would like to summarize some of these accomplishments:

• In 1993, in response to Congressional interest and the work of the UN's Truth Commission for El Salvador, we undertook an exhaustive search for records relating to 32 specific human rights cases:

  • over 6,000 personnel hours were invested to search millions of records and conduct required reviews;

  • over 1,800 documents were identified as responsive and over 50% of these were subsequently declassified and released to the public.

• In 1996, in response to the President's Intelligence Oversight Board, we undertook searches for specific human rights matters in Guatemala and Honduras:
  • over 900 personnel hours were invested to search tens of thousands of records, often manually, and conduct required reviews;

  • 73 documents were identified and 63 were released in redacted form.

• In 1996 and 1997, in response to Congressional interest and NSC tasking, multiple special search efforts on Guatemala were undertaken:

  • For Guatemala I, covering named human rights cases from 1984 to date, over 1400 personnel hours were invested to search tens of thousands of records, often manually, and review resulting documents; we identified 196 relevant documents and released 155 in redacted form;

  • For Guatemala II, covering named human rights cases prior to 1984, over 500 personnel hours were invested in search and review efforts; we identified 26 relevant documents and released 22 in redacted form; and,

  • For Guatemala III, addressing the 1954 CIA-backed coup (although not related to human rights issues per se), over 11,000 personnel hours were invested to search almost a quarter million pages of records, often manually; we identified and released a total of 1400 pages and 300 tapes of historically important material.

• In 1997 and 1998, in response to the Guatemalan Historical Clarification Commission (GHCC) and as directed by the NSC, we undertook a 100+ topic search that is nearing completion today:
  • over 500 personnel hours have been expended in our searches of tens of thousands of records and declassification review of responsive documents.

• Beginning in 1995 and continuing today, in response to Dr. Leo Valladares, the Honduran Human Rights Commissioner, as well as Congressional, NSC, public, and family interest, we undertook extensive searches regarding human rights matters in Honduras:
  • With respect to Father Carney (Honduras I) , some 1,100 personnel hours were invested to search tens of thousands of records, often manually; we identified 45 documents and released 36 in full or part;

  • With respect to 5 highly visible Honduran human rights cases (Honduras II), we did similar exhaustive searches at a cost of more than 500 personnel hours; we identified 126 documents and released 94 in redacted form -- including our 1996 Honduran Working Group (HRG) Report and 1988 IG Report;

  • With respect to General Alvarez vis-a-vis human rights (Honduras III), we similarly searched, invested some 200 personnel hours, and ultimately identified and released 21 documents; and,
  • With respect to Battalion 316 (Honduras IV) -- including the more recent IG report on Honduran matters -- work continues.

• We have been no less diligent with respect to public FOIA requests, referrals, and litigation -- again involving detailed and often manual searches of tens of thousands of records:
  • For those FOIA requests relating directly to Guatemala and Honduras, we have received at least 359 requests and have closed 201 of those to date with over 80% receiving a positive response;

  • For those FOIA requests relating more generally to human rights matters in the Americas, we have received even a higher number of requests -- at least 399 -- and have closed 310 to date;

  • For a number of high visibility, human rights-related FOIA litigations, we expended over 5,500 personnel hours:
    • For the DeVine litigation, nearly 100 documents were identified and released in full or redacted form;

    • For the Harbury litigation, over 240 documents were identified and released in full or redacted form;

    • For the Ortiz litigation, 35 documents were identified and released in full or redacted form -- and the case subsequently dismissed; and, [sic]

My purpose in this discussion is to demonstrate the DCI's commitment to releasing human rights information today under existing law. While our work is difficult and very time consuming -- given the inherent sensitivity of our information and the need to review it thoroughly -- we are meeting, and I believe far exceeding, the requirements of law. And, I would add, we are doing this while at the same time meeting the new demands of the Electronic Freedom of Information Act Amendments of 1996, which, as you are aware, require electronic release to individual requesters, general Internet access to frequently requested information, and reduction of backlog.

Now, I would like to return to our second major point and discuss in some detail our judgment that the proposed legislation would impose not insignificant costs and adversely impact our other release programs and the rights of requesters under those programs.

In my position, I have management responsibility and oversight for all of the CIA's information release programs and activities. While many tend to think of this as "just FOIA" with an occasional "special tasking," the picture is far different.

The universe of information review and release (IRR) is complex and balkanized -- competing programs, contradictory rules, divergent drivers, and growing costs.

Let me briefly itemize this universe of activity:

• Statutory public access
• FOIA
• Electronic FOIA
• Privacy Act
  • Access
  • Amendment
  • Other mandates
• Other statutory access
  • Victim Notification Act
  • JFK Assassination Records Act
  • FRUS Act
• EO 12958
  • Automatic
  • Mandatory
  • Historian Access
  • Former Presidential-appointee Access
  • Challenge by Authorized Holder
  • Systematic
  • ISCAP
• Litigation
  • Civil (FOIA)
  • Civil (non-FOIA)
  • Criminal
  • Non-party
• Special Searches
  • Legislative
  • Executive
  • Judicial
  • Diplomatic
• Other (voluntary or specially-funded activities)
  • STARGATE
  • DCI-directed historical declassification projects
  • Family and/or humanitarian interest

My point in addressing all of these information release activities is to show that today, we at CIA address a large variety of ongoing statutory, administrative, and management imposed requirements to release information. And it is not an easy task to juggle and prioritize all of these needs. Each of these statutory, administrative and management requirements has merit and I can assure you that each has its own proponents -- ranging from investigations into BCCI and BNL, to demands from veterans suffering from Gulf War Syndrome, to inquiries by individuals seeking information on family members or war-time service, to requesters challenging decisions in litigation or before administrative panels -- many of which are enormously time-consuming. It is my job to address all of these increasing needs with a relatively small staff.

Our concern with H.R. 2635 -- a broad gauged effort to examine all Agency records on a particular narrow topic -- is that it would not just add significant costs and require significant personnel resources, but would also not yield significantly more useful information to the public on Guatemala and Honduran Human rights abuses. This is so for two reasons:

• First, our work to date on human rights-related special searches has focused on documents of particular relevance; by eliminating duplicative, redundant, or non-substantive documents we have reduced requests from tens of thousands of documents to a few hundred to the benefit of everyone -- the government can shepherd resources more prudently and the requesters can receive critical information more promptly; and,

• Second, it is our experience that special purpose statutes are enormously costly to administer because the federal agencies must establish separate staffs working under special rules with all the attendant costs of determining the scope and meaning of the new statute.

To put this second point into perspective, the JFK Assassination Records Review Board effort at CIA -- comparable to what is being proposed in H.R. 2635 -- is now in its sixth year of activity and has engaged the equivalent of over 35 full-time personnel -- a not insignificant level for a single information release program. Nor does this include the very substantial time of senior management and legal staff as we address with the Board literally dozens of on-going issues at any one time -- including, for example, the necessity to protect the name of a former covert agent now living in a foreign country and easily subject to retaliation. These are issues where there is not simple deference to the DCI's position -- we are required to invest literally hundreds of hours in detailed research and fact-finding. If we were to calculate the government-wide cost and time, given the initial as well as review panel efforts, the true costs of the JFK statute would be far higher. I fear that the costs of implementing H.R. 2635 would be similarly high.

While there is no question that the JFK Act is an extraordinary statute to deal with an extraordinary event that had traumatic effect on the American populace, there are costs and benefits to balance. Every time such special purpose information disclosure statutes are passed, they rely on and dilute a very limited pool of trained resources. Currently, approximately 50% of our information review resources are devoted to special searches and special-purpose disclosure statutes. Further dilution of our limited assets by special disclosure statutes would substantially disadvantage the American public of their rights under the FOIA, Privacy Act, and Executive Order 12958 or cause the Agency to stop certain intelligence activities in order to divert personnel from the Agency's primary mission to the task of reviewing and declassifying documents.

Lastly, in this area, I would note what I perceive as an incorrect assumption implicit in this legislation -- that CIA has definitive information that would resolve these horrible events. Over the time period which would seem to be of most interest to sponsors of H.R. 2635, the late 1970s and 1980s, CIA's primary intelligence reporting interest in the region was not focused, per se, on human rights. Rather, such reporting was devoted largely to political developments; what information and documentation that CIA has concerning human rights abuses is often within the context of reporting on political dissent or rebellion and placing these incidents within this political context. As a result, our knowledge of these matters as reflected in our reporting at the time can be characterized as incomplete, fragmentary, often contradictory, and definitely not finished intelligence.

Let me turn to our final topic -- brief comments on specific provisions of H.R. 2635 -- which not only present additional cost concerns but, more significantly, would have a chilling and debilitating effect on the operational environment overseas.

First, we are concerned that H.R. 2635 establishes dangerous statutory declassification and release standards which will seriously compromise our ability to recruit intelligence sources and conduct needed intelligence activities.

• Section 5(a) of the bill only authorizes agencies to ''postpone" the release of classified information if certain criteria is met. It is unclear how long this ''postponement'' would remain in effect before it could be challenged again: a week, a month, a year, several years?

• Section 5 also creates very narrow and incomplete exemptions from declassification -- requiring inordinately high showings of evidence, incorporating convoluted public interest balancing tests, but ignoring totally the fact that families and relatives of sources remain perpetual targets for retaliation:
  • current sources are protected only to the extent that there is ''clear and convincing evidence'' that the threat to intelligence operations outweighs the public interest,

  • former sources are protected only if they face the risk of harm,

  • and dead sources are unprotected.

• Not only would this scheme of exemptions be difficult to apply, it would act as a serious disincentive for anyone to become or continue to act as a CIA source. Current and potential sources would have to take into account the fact that their reward for serving American intelligence would be the legal requirement to reveal their identity if they reported on human rights violations; and the chilling effect would not be limited to this narrow arena, for what source would not correctly fear that the law would change again and again, placing themselves and their families blindly and perpetually in jeopardy?

• This new law, layered over the FOIA, would create confusion when applied simultaneously with the FOIA regarding the same national security information;

• This confusion would only increase if a requester chose to pursue multiple, simultaneous requests under H.R. 2635 and the FOIA;

• Moreover, this bill would authorize vastly broader judicial review to include review under the Administrative Procedure Act (APA) of each individual information release decision as well as under the traditional provisions of the FOIA -- a result not consistent with concepts of good and efficient government, since the APA was never intended to be an information disclosure law and since litigation costs for the government could literally explode.

• Today, we rather successfully balance a variety of individual and organizational FOIA requesters as well as demands from senior U.S. Government officials or concerned foreign governments. H.R. 2635 would divert a significant portion of the limited number of CIA personnel knowledgeable in both the agency's operational activities and its review and release process toward exhaustive review of voluminous materials. Moreover, these materials would have only marginal relevance.

• The conflicted situation would, of course, become even worse if section 6 of the bill were ever triggered. That section requires the agency to conduct the same kind of review and release activity for the human rights records of any Latin American or Caribbean country if requested to do so by the United Nations, the Organization of American States, or the principal justice or human rights official of any such country.

• Specifically, section 7(b) of the bill authorizes the ISCAP to determine de novo whether there is ''clear and convincing evidence'' that a declassification exemption applies and whether the public interest nevertheless requires disclosure -- notwithstanding any prior determination by the DCI on such factors.

• In addition, section 10 of the bill would augment the ISCAP's membership by adding two additional non-U.S. Government personnel -- a factor which would raise significant questions of authority and expertise.

• First, it is not needed given the human rights information released to date and the DCI's priority and commitment to further releases;

• Second, it would artificially constrain our ability to concentrate on the most relevant information as we do today and thus reduce our ability to make the information release efforts work to everyone's benefit;

• Third, it would create new bureaucracies and further drive up the costs of information release at CIA;

• Fourth, it would require us to divert resources from other important and statutorily-required release programs (e.g., E-FOIA); moreover, this effort would add little to the public's insight into human rights abuses in Guatemala and Honduras;

• And fifth, and in my judgment the most significant, the review and release standards, if enacted, would seriously damage intelligence collection activities in those countries subject to its terms.

FAS | Gov't Secrecy | 5/11/98 Hearing || Index | Search |