FAS Intro: In the following memorandum, the CIA offers a lawyerly defense of its claim that disclosure of the 1999 intelligence budget totals would somehow damage national security even though disclosure of the total appropriation for 1997 and 1998 did not. Thus, CIA argues, even though the President has declared generally that the total intelligence appropriation could be safely disclosed, he never said that the total intelligence appropriation for 1999 could be disclosed. And so forth. For further background, see the May 14 FAS Memorandum and the April 6 Declaration of DCI Tenet.
___________________________________
STEVEN AFTERGOOD )
on behalf of the )
FEDERATION OF AMERICAN SCIENTISTS )
)
Plaintiff, )
)
v. ) Case No. 1:98CV02107 (TFH)
)
CENTRAL INTELLIGENCE AGENCY )
Washington, DC 20505 )
)
Defendant. )
___________________________________)
INTRODUCTION
Faced with a lawful exercise of Director of Central Intelligence ("DCI") Tenet's authority to classify and withhold the information that he seeks, as well as a long line of cases requiring judicial deference to an agency's classification determination based on risks to national security, plaintiff relies on tortured logic and vague references to government "bad faith" in his attempt to persuade this Court that it should substitute plaintiff's judgment about risks to national security for the well-reasoned judgment of DCI Tenet. To start, plaintiff asks the court to exalt a single fact above all the others that are contained in DCI Tenet's two declarations; namely, that a Congressionally-chartered commission (the "Brown Commission") once offered a non-binding recommendation that, as a general practice, the intelligence budget and budget request be disclosed to the public. Further, plaintiff obscures or ignores other facts about the Brown Commission's recommendation: that the very Congress that established the Brown Commission chose not to accept its disclosure recommendations; that the Commission addressed a hypothetical question about the risks of disclosure of intelligence budget figures, and was not faced with making the specific, highly contextualized, case-by-case determination that DCI Tenet is required, by law, to make here; and that the President, notwithstanding general "press statements" made on his behalf in 1996 indicating that he might support disclosure of the intelligence budget as a general matter, has never made such disclosures, nor ordered that such disclosures be made.
Further, plaintiff offers no contrary record evidence -- save the assertion that two other countries reveal their total intelligence budgets -- nor evidence that the government was acting in bad faith in making the classification determination at issue here. Absent such evidence, this Court must defer to DCI Tenet's determination that release of the requested figures could reasonably be expected to cause damage to the national security and would tend to reveal intelligence methods, and grant defendant's motion for summary judgment.
A. DCI Tenet is Authorized by the President to Make the Classification Determination
As explained in Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def. Mem.") at 7-8, defendant Central Intelligence Agency ("CIA") followed the proper procedures in classifying the total budget request and total appropriation for intelligence activities. Plaintiff's totally unsupported claim that "determinations concerning classification of information are the ... sole responsibility of the President" is not to the contrary. First, plaintiff cannot, and does not, refute the fact that DCI Tenet is an official authorized to exercise original TOP SECRET classification authority. See Presidential Order of 13 October 1995, "National Security Information," 3 C.F.R. sect. 513 (1996); Executive Order ("E.O.") 12958, sect. 1.4(a)(2). Instead, plaintiff attempts -- and fails -- to show that DCI Tenet's determination is somehow at odds with a decision of the President and therefore is invalid. But the President has never opined publicly on the precise determination at issue here. Although, as plaintiff points out, he clearly has the authority to do so, the President has never released, or ordered release of, the Administration's budget request or the total appropriated amount for intelligence activities for fiscal year 1999. Thus, the statement of a Presidential spokesman three years ago 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," Plaintiff's Memorandum of Points and Authorities in Opposition to Summary Judgment ("Pl. Opp.") at 8 (emphasis added), is neither on point nor in any way legally binding. 1.
Plaintiff has offered no evidence that the President has ever addressed the impact of disclosure in the precise circumstances presented here. DCI Tenet is authorized to make the highly fact-dependent classification determination, and he has properly done so here.
B. There is No Contrary Record Evidence or Evidence of Bad Faith.
Plaintiff agrees that the Court must give "substantial weight" to the agency declaration, and that the government is entitled to summary judgment on the basis of reasonably specific agency declarations if they are not called into question by contradictory record evidence or evidence of government bad faith. Pl. Opp. at 7; Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980); see also, Krikorian v. Department of State, 984 F.2d 461, 464 (D.C. Cir. 1993); Washington Post v. DOD, 766 F. Supp. 1, 7 (D.D.C. 1991) (citing cases).
In this case, plaintiff has simply 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 do not even approach "contrary record evidence." As noted above, the Brown Commission was a congressionally-chartered commission made up of private citizens who lacked classification authority and who made non-binding recommendations to Congress and the President on intelligence matters. 2 Neither Congress nor the President 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 exact circumstances described in DCI Tenet's unclassified declaration and in more detail in his classified declaration, it would recommend disclosure of the budget figures. Nonetheless, plaintiff expects this Court to exalt the non-specific, non-binding recommendation of the private citizens who comprised the Brown Commission over that of the Director of Central Intelligence, the individual charged with the responsibility for classification and who serves as the head of the nation's primary intelligence agency. Such a suggestion turns the deeply-entrenched notion of deference to agency determinations regarding classification of national security matters on its head. See Def. Mem. At 8-9 (citing cases).
Second, the fact that DCI Tenet disclosed the total intelligence budget in prior years is not adverse record evidence; on the contrary, it indicates DCI Tenet's careful, case-by-case analysis of the impact of each disclosure. When he made his prior disclosures, he emphasized that he would continue to make that case-by-case determination in future years. Tenet Decl., para. 7. And he has carefully explained the rationale underlying his predictive judgment that release of the figures for fiscal year 1999 could reasonably be expected to cause damage to the national security in his unclassified and classified declarations, pointing out that disclosure could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses, id., para. 17; that it could be expected to assist foreign governments in correlating specific spending figures with particular intelligence programs, id., para. 18; and that it could be expected to free foreign governments' limited collection and analysis resources for other efforts targeted against the United States, id., para. 22.
Although DCI Tenet explains that disclosure of any consecutive year budget requests or budget appropriation figures would provide foreign governments with the United States' own overall assessment of its intelligence programs, id., para. 16, it is only logical that disclosure of a third consecutive year provides even more trend information, and a greater basis for comparison and analysis for our adversaries, than disclosures made two years in a row. Further, the risks posed by disclosure of the government's own assessment of its intelligence capabilities was just one of the factors considered by DCI Tenet in determining that this year's budget figures should be classified.
Third, plaintiffs argue, with the support of a single declaration from a single budget analyst, that foreign governments could not "reverse engineer" useful information from knowing the total budget request or total appropriated amount. While this assertion might be true in a vacuum -- the disclosure of a single piece of aggregated budget information would not permit "reverse engineering" of a complex multi-line budget -- the disclosures plaintiff seeks would not be made in a vacuum. To the contrary, such disclosures would be made amidst a great deal of publicly- available (and/or clandestinely-acquired) information, some of which is described in detail in plaintiff's brief. Plaintiff cannot -- and does not -- argue that as one piece of information among many relating to intelligence budgeting, the total budget request and total appropriated amounts could not be expected to "assist foreign governments in correlating specific spending figures with particular intelligence programs." Tenet Decl., para. 18. Rather, DCI Tenet must
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 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.
Tenet Decl., para. 9. As noted in defendant's opening brief, this "mosaic" analysis for purposes of classification is not only authorized under the law of this Circuit, see Halperin v. CIA, 629 F.2d at 150, but specifically provided for under Executive Order 12958. See E.O. 12958, sect. 1.8(e).
The only new "evidence" that plaintiff provides to counter DCI Tenet's classification determination is the fact that two other countries, Australia and the UK, have disclosed their total intelligence budget amounts to the public. This fact, unaccompanied by any explanation or rationale for these countries' actions, is hardly "contrary record evidence" of the type necessary for a court to substitute the judgment of a proper classification authority. Cf., Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 421-22 (2d Cir. 1989) (rejecting classification opinion of retired admiral); Rush v. Department of State, 748 F. Supp. 1548, 1554 (S.D. Fla. 1990) (rejecting classification opinion of ambassador who prepared some of records at issue in favor of government classifying authority); Gardels v. CIA, 689 F. 2d 1100, 1106 n. 5 (D.C. Cir. 1982) (rejecting classification opinion of former CIA agent). Not only are the classification determinations of Australia and the UK legally irrelevant to DCI Tenet's -- and this Court's -- decision, but the fact that plaintiff, and the Brown Commission, singled out these two countries implies that they are exceptions to the standard rule that most countries do not publicly disclose this information.
Next, plaintiff points to the vast array of publicly-available information about the objects of intelligence spending in support of its argument that "much of such [useful information to foreign adversaries about U.S. intelligence activities] has already been officially disclosed," Pl. Opp. At 15, and therefore "disclosure of the total amounts ... would add nothing new to what is already known." Id. at 16.
But this argument ignores the central point behind the government's historical reluctance to release any budget figures. As DCI Tenet explains, "the more [that is] publicly disclosed about the amount of appropriations, the less [that could] be publicly debate[d] about the objects of such appropriations without causing damage to the national security." Tenet Decl., para. 10. Lawmakers have struck the balance in favor of withholding the amount of appropriations, and disclosing relatively more about its objects. More information about the precise application of this balance is provided in DCI Tenet's classified declaration. This balance is one that lawmakers and classification authorities are lawfully entitled, and indeed obligated, to reach to protect our national security.
Finally, plaintiff has offered no credible evidence of bad faith on the part of DCI Tenet in classifying the budget figures. The mere fact that there have been reports of a significant budget increase is not sufficient to raise a meaningful inference that the CIA is attempting to hide such an increase from the public. Presumably, if there had been reports of a substantial budget decrease, or of no increase, plaintiff would argue that the CIA was trying to shield the government's inadequate commitment to intelligence activities from public debate. The legitimate reasons for nondisclosure are amply explained in DCI Tenet's declarations, and plaintiff offers no plausible reason for this Court to doubt the bona fides of the Director of Central Intelligence in discharging his weighty responsibilities in protecting the national security.
C. The Intelligence Budget Request and Total Appropriated Amount are Properly Withheld Under FOIA Exemption 3.
Plaintiff's suggestion that the CIA has not always withheld total budget figures at the administrative level under FOIA Exemption 3 does not undercut the CIA's arguments in this case. First, as a legal matter, it is axiomatic that judicial review of FOIA determinations is de novo, and the agency is thus not barred from invoking a particular exemption in litigation merely because that exemption was not cited in responding to the request at the administrative level. See, e.g., Young v. CIA, 972 F.2d 536, 538-39 (4th Cir. 1992); Kay v. Federal Communications Commission, 867 F. Supp. 11, 12 (D.D.C. 1994); Gula v. Meese, 699 F. Supp. 956, 959 n.2 (D.D.C. 1988). Nonetheless, the CIA did withhold the Administration's budget request at the administrative level on the basis of both Exemption 1 and Exemption 3. See Def. Mem. At Exh. B.
The fact that the CIA did not cite to Exemption 3 when responding to prior requests for budget disclosures is irrelevant to the present determination. However, as Director Tenet explains, the particular concern regarding disclosure of total budget figures under Exemption 3 is that repeated disclosures of these figures would provide multiple benchmarks with which to test and refine budget models and hypotheses. Tenet Decl., para. 26. The CIA would not have been concerned with repeated disclosures when plaintiff requested the total intelligence budget figure for fiscal years 1995 and 1997, since no prior releases had been made at that point. There is no inconsistency in the DCI's determination except in the eyes of plaintiff, who repeatedly ignores DCI Tenet's explanations with regard to the increased significance of repeated budget disclosures.
Nor has DCI Tenet made inconsistent claims in this lawsuit. Whether knowingly or not, plaintiff misquotes DCI Tenet's first declaration by inserting the word "both" in his statement that disclosure of the budget request "would tend to reveal intelligence sources and methods." Defendant offered the same facts and explanation regarding withholding the intelligence budget request under Exemption 3 in both of its motions for summary judgment. DCI Tenet never directly asserted or argued that the budget request would reveal intelligence sources per se in his first declaration; he merely used the two terms together -- "sources and methods" -- in the manner that they are used together in the underlying statute. 50 U.S.C. sect. 403-3(c)(6) (requiring DCI to "protect intelligence sources and methods from unauthorized disclosure").
Finally, plaintiff's only argument "on the merits" of Exemption 3 -- that the intelligence appropriations are hidden in various line items in order to conceal the budget total, and that disclosure of a single figure would obviate the need for budgeting secrecy -- is totally without merit. DCI Tenet explained that the true purpose of the budgeting secrecy is 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. Tenet Decl., para. 25, 27. 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); Richardson v. United States, 465 F.2d 844, 849 and n.2 (3rd Cir. 1972), rev'd on other grounds, 418 U.S. 166 (1974). Thus, because DCI Tenet has determined that release of the total budget request and total appropriation would tend to reveal secret budgeting mechanisms constituting "intelligence methods," it is also exempt from disclosure under FOIA exemption 3.
Respectfully submitted,
DAVID W. OGDEN
Acting Assistant Attorney General
WILMA A. LEWIS
United States Attorney
ANNE L. WEISMAN
ANDREA G. COHEN, Bar #458664
Attorneys, Department of Justice
Civil Division - Room 1016
901 E Street, N.W.
Washington, DC 20530
Telephone: (202)616-5197
Attorneys for Defendant
OF COUNSEL:
JOHN L. McPHERSON
Assistant General Counsel
Central Intelligence Agency
Washington, DC 20505
(703)874-3121
Dated: June 16, 1999
1. Further, plaintiff's statement that "[t]he President determined to accept the recommendation of a congressionally chartered commission that ‘at the beginning of each congressional budget cycle, the President or a designee disclose the total amount of money appropriated for intelligence activities for the current fiscal year... and the total amount being requested for the next fiscal year," Pl. Opp. at 8, is wrong. The President indicated only that he informally "authorized" Congress to make the disclosure of the total appropriated amount if it chose to do so. He did not indicate acceptance of the recommendation that he, or his designee, disclose that information, nor did he indicate acceptance of the recommendation that he release the Administration's budget request. See Exh. 1 to Pl. Opp.
2. Plaintiff asserts in his Complaint and in his opposition brief that the Brown Commission recommendations were "unanimous." However, plaintiff has offered zero evidence that indicates whether or not the recommendations were in fact unanimous; it is certainly not apparent from plaintiff's exhibit 3.
I certify that on June 16, 1999, I caused a copy of the foregoing reply memorandum to be sent by first-class United States mail, postage pre-paid, to the following:
Attorney for Plaintiff:
Kate Martin
Center for National Security Studies
2130 H Street, N.W.
Suite 701
Washington, DC 20037