IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

         
___________________________________
STEVEN AFTERGOOD                   )
     Plaintiff,     		   )
                                   )	Case No. 02-1146 (RMU)
v.                                 )
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
     Defendant.                    )
___________________________________)

DECLARATION OF STEVEN AFTERGOOD

1. My name is Steven Aftergood. I am an analyst at the Federation of American Scientists, a non-governmental policy research and advocacy organization, where I have studied, written and reported on government information policy for over a decade. The main thrust of my work has been to promote public access to government information, including national security-related information, and to advocate reform of national security classification policies so as to make them increasingly rational, proportionate and responsive to changes in the security environment. While I presume that most classified information in government is properly classified based on genuine national security considerations, I have found that information is sometimes improperly classified in order to preclude public controversy or to evade oversight. In other cases, information is withheld from disclosure not to gain any particular advantage but as an expression of the natural bureaucratic tendency to hoard information. Furthermore, even in cases where national security classification is initially justified, it is often retained long after the point that the sensitivity of the information in question has lapsed. In order to correct these continuing deviations, some countervailing force is needed. Through my work, I have endeavored to contribute to such an external, corrective force. I am the plaintiff pro se in this FOIA proceeding seeking declassification of the Fiscal Year 2002 intelligence budget total.

2. I was previously the plaintiff in a related lawsuit in this district seeking declassification of the Fiscal Year 1997 intelligence budget total (case number 97-1096 (TFH)). After plaintiff administratively denied release of the requested information, the lawsuit led to the official declassification of the FY 1997 budget figure, announced by the Director of Central Intelligence on October 15, 1997. That was a landmark event because it demonstrated in practice that the intelligence budget total could be declassified without damage to national security and without compromising intelligence sources and methods.

3. I also sought declassification of the Fiscal Year 1998 budget figure, which was declassified by the Director of Central Intelligence and disclosed on March 20, 1998. That action further demonstrated in practice that the intelligence budget total could be declassified in two consecutive years without damage to national security and without compromising intelligence sources and methods.

4. I likewise sought declassification of the Fiscal Year 1999 budget figure in a FOIA lawsuit (case number 98-2107 (TFH)) in which the court upheld the defendant's denial of the requested information. That is, declassification of the intelligence budget total for a third consecutive year was denied.

5. In addition to this proceeding, I currently have another FOIA lawsuit pending before this court for declassification of the 1947 and 1948 intelligence budget figures which have been withheld by defendant CIA on asserted national security grounds (case no. 01-2524 (RMU)).

6. I have also requested declassification under the FOIA of the intelligence budget total for each year since 1999, up to and including FY 2003. In each case, the requested information has been denied on administrative appeal by defendant CIA. Aside from the present proceeding, no litigation on these denied figures has been pursued. Therefore, no intelligence budget total information has been declassified since the declassification of the Fiscal Year 1998 budget total.

The FY 2002 Figure is Distinct From the Denied FY 1999 Figure

7. Since there have been no disclosures of total budget figures since 1998, the dispute over the FY 2002 budget total is materially distinct from the case of the FY 1999 figure whose denial has previously been upheld. Whereas the 1999 figure followed two preceding years' disclosures, the FY 2002 figure stands alone; neither the three preceding years' totals nor the following year's total have been released. Therefore its disclosure would not reveal trend information.

8. Thus it is not true that the 1999 case is "materially indistinguishable" from the present case, as defendant has asserted. See Defendant's "Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment" ("Defendant's Memorandum"), April 4, at page 1.

9. In that 1999 case, the Court concluded that it "must defer to DCI Tenet's decision that release of a third consecutive year... provides too much trend information and too great a basis for comparison and analysis for our adversaries." See Memorandum Opinion, Aftergood v. Central Intelligence Agency, Civ. No. 98-2107 (TFH), attached as Government Exhibit A to Defendant's Memorandum, at page 7. But in this case, as explained, the question of trend information cannot arise.

10. Likewise, DCI Tenet makes an inapt point when he argues in this proceeding that "the difference between Congressional appropriations from one year to the next provides a measure of Congress's assessment of the nation's intelligence efforts... which could assist foreign governments... with resulting damage to our national security." See Unclassified Declaration of George J. Tenet, filed April 4 at ¶ 39. Since the preceding and following years' budget totals have not been disclosed, the question of the difference "from one year to the next" does not arise.

The FY 2002 Figure is Less Sensitive than the Declassified FY 1998 Figure

11. For related reasons, the requested budget total for FY 2002 is objectively less likely to damage national security than the FY 1998 budget figure that has previously been declassified, and less likely to compromise intelligence sources and methods. That is because the 1998 figure was the second consecutive annual declassification of the intelligence budget total. Consequently, it did in fact constitute disclosure of year-to-year "trend information." Declassification of the FY 2002 figure would be less revealing simply because neither the preceding nor the following year's budget total has been disclosed, which was not the case in 1998.

The FY 2002 Figure is Less Sensitive than the Declassified FY 1997 Figure

12. The requested FY 2002 budget total is also objectively less sensitive than previous official disclosures including the FY 1997 figure because of the fact that it is no longer current information. The 1997 budget total was disclosed in October 1997, shortly after the FY 1997 budget year ended on September 30. The FY 1998 budget total was disclosed in the midst of FY 1998 itself, in March 1998. Today, in contrast, we are more than halfway through FY 2003 and Congress is now deliberating over the FY 2004 budget. The FY 2002 intelligence budget total is, for practical purposes, historical information. Other things being equal, classified information becomes less sensitive with the passage of time. Accordingly, the FY 2002 total is less sensitive today than the FY 1997 budget total was when it was officially declassified in October 1997.

Defendant Misrepresented Classification Status of Intelligence Spending

13. Defendant CIA has materially misrepresented the scope of classification of intelligence spending, as described below.

Aggregate Annual Intelligence Spending Figure for DOE is Unclassified

14. The Department of Energy (DOE) routinely does what Director Tenet said is not done, could not be done and should not be done: DOE publishes and describes the purposes of its annual agency-level appropriations for intelligence. DCI Tenet stated in his sworn declaration that the amounts and purposes of individual agency appropriations are not disclosed:

Tenet Declaration, ¶ 14.

15. This is a false and misleading statement. As Mr. A. Bryan Siebert has stated in his sworn declaration in this proceeding, the specific amount of the intelligence appropriation for the Department of Energy, which includes classified spending for the National Foreign Intelligence Program, is unclassified and is publicly identified. It normally appears in the Energy and Water Development Appropriations Act. Each year, descriptive information about the purposes of DOE intelligence programs is published in unclassified form by the Department of Energy in its annual budget justification documents.[1]

The Total Intelligence Budget Includes Unclassified Programs and Spending Figures

16. It is also misleading to state, as Mr. Tenet has done, that intelligence appropriations figures have been protected to conceal "any correlation between specific spending figures and particular intelligence programs." Tenet Declaration, ¶ 11. In fact, there are numerous cases in which intelligence agencies themselves publish specific spending figures together with descriptions of the programs they fund.

17. To cite a single example among many, the Department of the Army has published the cost and description of its GUARDRAIL upgrade program in unclassified form. [2] GUARDRAIL is "an Airborne signal intercept and emitter location system" that is part of the TIARA (Tactical Intelligence and Related Activities) budget aggregation.

18. Thus, Director Tenet misled the court with the assertion that "we will continue to protect from disclosure any and all subsidiary information concerning the intelligence budget: whether the information concerns particular intelligence agencies or particular intelligence programs." Tenet Decl., at ¶16, citing his own 1997 statement. In actual fact, the total intelligence budget routinely includes both classified and unclassified budget appropriations, and both classified and unclassified programs.

Continued Classification of the 1947-48 Budget Totals is an Indication of Bad Faith

19. The continued classification of the 1947-1948 intelligence budget totals eight years after their disclosure was requested under the FOIA is an indication that defendant's professional judgment on intelligence budget classification policy is not trustworthy.

20. Although defendant CIA has previously declassified the sequential 1997 and 1998 budget totals, it nevertheless asserts that disclosure of the intelligence budget totals from 1947 and 1948 could damage national security and compromise intelligence sources and methods. This assertion, which is the subject of separate litigation before this court [3], is non-credible on its face and is a sign of bad faith.

21. "Bad faith" here does not refer to the mental state or intent of the defendant, which I of course am unable to ascertain. Rather, it refers to the fact that there is no plausible national security construct which both permits declassification of the 1997 and 1998 budget totals and prohibits declassification of the 1947 and 1948 budget totals. If the 1997 and 1998 budget totals can be declassified without damage to national security, as they have been, it is self-evident that the same category of information from 50 years earlier can also be safely declassified. Likewise, if the 1997 and 1998 declassifications did not compromise intelligence sources and methods, it is obvious that the figures from half a century earlier could not do so. The inescapable conclusion is that defendant CIA is acting in bad faith. Defendant is improperly withholding total budget data for reasons other than national security and the protection of intelligence sources and methods. [4]

22. Furthermore, DCI Tenet is personally implicated in the continued withholding of this information. I know this because the DCI's Historical Review Panel, an official CIA advisory body, reported recently that it has addressed "the Agency's position that budget figures from the early years of the CIA must remain classified [and] we have presented the Director with our views and recommendations...." [5]

23. Yet even so, DCI Tenet has still not declassified this information. I believe that this is a violation of Executive Order 12958 which directed that "Information shall be declassified as soon as it no longer meets the standards for classification under this order." Section 3.2(a). (The identical provision appears in the recent Executive Order 13292 as Section 3.1(a).) If so, such a violation would be a further specific sign of bad faith on the part of Director Tenet.

Defendant's Underlying Premise is Unfounded

Aggregate Spending Figures Do Not Compromise Sensitive Information

24. The underlying premise of defendant's argument is that publication of aggregate spending levels for intelligence programs can somehow place the content of those programs at risk of disclosure or compromise. This premise has now been proved false in the case of Department of Energy intelligence programs, as discussed above. It can also be shown to be more broadly untrue with respect to classified programs generally.

25. As evidence that there is no nexus between disclosure of aggregate spending figures for classified programs and increased vulnerability of those programs, I note that the White House recently published its request for an unclassified aggregate sum for classified programs as part of a supplemental appropriations request to support Operation Iraqi Freedom and the war on terrorism. [6]

26. In response, and in the midst of wartime, Congress proceeded to appropriate the requested spending, including "Not less than $1,771,180,000 for classified programs...." [7]

27. The public disclosure of this aggregate figure by both branches of government defeats defendant CIA's rhetorical justifications for budget secrecy. To wit: (a) By CIA's logic, America's enemies and their intelligence services might well have "combined this information with other clandestinely obtained information" and "shared their analysis of it with other adversaries"; yet somehow that was no obstacle to its publication. (b) According to CIA, disclosure of the sum appropriated for classified activities in the war on terrorism must have "freed up foreign intelligence agencies' collection and analysis resources" for other efforts targeted against the United States; this was evidently a non-issue. (c) The published request implicitly revealed a "U.S. self-assessment": i.e. the amount of money needed by U.S. forces in classified programs in order to prosecute the war on terrorism; by defendant's reasoning, it ought to have been classified. Defendant's reasoning is wrong. (d) The published appropriation very likely included additional funds for CIA, requiring the use of "secret funding transfer mechanisms." But it is impossible to tell whether or not such funds were included or how additional funds, if any, were transferred to CIA or to any other agency-- which is the very point; there is no "sources and methods" justification for classification of aggregate figures.

28. In short, even in the midst of wartime there is no nexus between disclosure of an aggregate appropriation figure for classified programs and increased vulnerability of the classified programs funded by that appropriation. Defendant's rhetorical arguments for classifying aggregate budget figures are unsupported by facts and are actually disproved by executive branch practice.

29. It should be noted that the "intelligence budget total" is not simply an aggregate figure, it is a "meta-aggregate." That is to say, it is the sum of three independent budget aggregations – the National Foreign Intelligence Program (NFIP); the Joint Military Intelligence Program (JMIP); and Tactical Intelligence and Related Program (TIARA). The notion that this aggregate of aggregates, if disclosed, could somehow be dis-aggregated in order to reveal sensitive information about one of its thousands of sub-components is not credible. To the contrary, it has been proved untrue by the routine publication of Department of Energy intelligence spending and by the publication of other aggregates of classified spending.

Defendant's Truncated Presentation of Evidence is Misleading

30. Director Tenet included a ten-page attachment to his sworn declaration as Attachment 1. This document was truncated in a way that is likely to mislead the Court by obscuring its date, its sources and the location of the complete document. According to footnote 2 on page 14 of DCI Tenet's unclassified declaration, the attachment was "obtained from a public Internet site." Defendant's April 4 Memorandum of Points and Authorities, footnote 6 at page 15, specifies further that it was found on the Internet site of the Federation of American Scientists, but no specific citation is provided.

31. The unacknowledged truncation of this attachment conceals the fact that it was written in 1996, i.e. before DCI Tenet declassified the 1997 and 1998 intelligence budget totals, as the document's author, John Pike, has stated in his accompanying declaration, at ¶ 3. In other words, the publication of this speculative analysis was no impediment to the declassification of budget totals in two successive years.

32. Defendant not only did not indicate that its attachment was truncated, it failed to provide a source citation that would enable the Court to discover this fact on its own. [8]

Constitutional Values and the Public Interest in Disclosure

33. Disclosure of the requested budget information is of substantial public interest because it would permit members of the public to know what fraction of taxpayer funds is dedicated to intelligence, as compared to other public goods, and would enable them to consider whether that fraction should be increased, decreased or left unchanged. This is not a trivial matter.

34. In fact, budget disclosure is literally a defining attribute of our system of government. Official budget expenditures are singled out by the Constitution as the one and only category of executive branch information that must be periodically disclosed. This occurs in the Statement and Account clause of Article I:

U.S. Const., Art. 1, Sect. 9, Cl. 7.

35. I recognize that this constitutional provision does not compel the immediate publication of any and all classified expenditures. But neither is it irrelevant to the present case, in my opinion.

36. Defendant CIA has displayed contemptuous disregard for its constitutional obligations by refusing to publish even half-century old aggregate budget figures. It is true but irrelevant, in my opinion, that by acquiescing in this practice, Congress has proved to be no less derelict. If the Statement and Account clause is not to be drained of its meaning, then it is incumbent upon all of us to defend it. In this case, unless the Court can identify compelling reasons why the requested budget information should be withheld, I believe that Constitutional values reinforce the case for its disclosure.

Conclusion: The Culture of Overclassification

37. Unnecessary classification is a habitual problem in the U.S. intelligence community. It was even identified as a problem by the Congressional Joint Inquiry into the Terrorist Attacks of September 11, 2001. The Joint Inquiry recommended that:

Furthermore, the Joint Inquiry called for:

In other words, the culture of overclassification, far from enhancing security, can actually be an impediment to the prosecution of the war on terrorism. Unchecked secrecy can be deadly. Yet, according to the congressional Joint Inquiry, intelligence agencies continue to overclassify and to employ classification for illegitimate reasons.

38. That is demonstrably true in this case. As shown by the routine publication of aggregate spending for Department of Energy intelligence programs, the successful declassification of the total intelligence budget for two consecutive years in 1997 and 1998, and the recent publication of aggregate spending for classified programs undertaken in Iraq and in the war on terrorism, declassification of the total intelligence budget figure for Fiscal Year 2002 would not cause damage to national security nor would it jeopardize intelligence sources and methods.



I hereby certify under penalty of perjury that the foregoing is true and correct.

Executed this 5th day of May, 2003.

[NOTES]

1. A current summary of the DOE intelligence program is given in "Department of Energy FY 2004 Congressional Budget Request Budget Highlights" at page 77. A copy of this item is attached as Attachment 1. I hereby certify under penalty of perjury that this attachment is an accurate and authentic excerpt. The full source document may be found on the Energy Department web site here: http://www.cfo.doe.gov/budget/04budget/content/highlite/highlite.pdf

2. Department of the Army Procurement Programs, Committee Staff Procurement Backup Book, FY 2004 / FY 2005 Budget Request, Aircraft Procurement, Army, February 2003, at page 19. Excerpt attached as Attachment 2. I again hereby authenticate this excerpt. The full source document, which also includes other unclassified TIARA expenditures, may be found on the Army web site here: http://www.asafm.army.mil/budget/fybm/fy04-05/pforms/aircraft.pdf

3. Aftergood v. Central Intelligence Agency, Civ. No. 01-2524 (RMU). I first requested the historical budget information in 1995. It was denied in 1995 and denied again upon administrative appeal in 2000. Most recently, defendant replied to my lawsuit with a December 2002 Answer seeking dismissal and award of its costs. There have been no further developments in the case, as the parties have been unable to reach agreement on a proposed briefing schedule. A copy of this declaration and related materials will be served on defendant's counsel in that case, Mr. Menna.

4. I do not comprehend the defendant's motivations for withholding this antiquated budget information. Speculatively, the motivations might include bureaucratic inertia, or a desire to erode the effective application of the Freedom of Information Act. Alternatively, defendant's position could reflect an inability to distinguish between sensitive and non-sensitive information, which would be a crippling defect for an intelligence agency.

5. Statement by the CIA Historical Review Panel, March 25, 2003. I have posted this document at http://www.fas.org/sgp/advisory/ciahrp7.html and attached a copy hereto as Attachment 3. I hereby certify under penalty of perjury that this is a faithful, accurate and complete copy of the text of the Panel statement as publicly released by its chairman, except that a handwritten notation in the margin is mine.

6. See "FY 2003 Supplemental: Operation Iraqi Freedom--3/25/03" at page 4: "At least $1.7 billion for Classified Activities. These funds would cover the costs associated with classified activities undertaken in Iraq and in the global war on terrorism." This document is posted at: http://www.whitehouse.gov/omb/budget/amendments/supplemental_3_25_03.pdf.

7. Conference Report on H.R. 1559, Emergency Wartime Supplemental Appropriations Act, 2003, published in the Congressional Record on April 12, 2003, pp. H3357-3385, at H3359.

8. The full document is posted at http://www.fas.org/irp/cia/ciabud.htm.

9. "Recommendations of the Final Report of the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence Joint Inquiry into the Terrorist Attacks of September 11, 2001," published December 10, 2002, Recommendation 15, emphasis added. Posted at: http://intelligence.senate.gov/recommendations.pdf.

10. Ibid.