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FAS Intro: The following memorandum, filed in federal district court on 14 May 1999, responds to CIA's motion for summary judgment on the FAS lawsuit which seeks disclosure of the total intelligence budget request and appropriation for fiscal year 1999. In particular, this memorandum responds to the arguments against disclosure presented in the April 6 Declaration of DCI George J. 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.                    )
___________________________________)

Respectfully submitted,

KATE MARTIN
D.C. Bar No. 949115
Center for National Security Studies
2130 H Street, NW
Gelman Library, Suite 701
Washington, DC 20037
Telephone: (202) 994-7060

Counsel for Plaintiff

Dated: May 14, 1999

INTRODUCTION

STATEMENT OF FACTS

DEFENDANT'S MOTION FOR 
SUMMARY JUDGMENT SHOULD BE DENIED

	I.  The CIA Has Not Established that the Information is 
	Exempt under Section (b)(1)

		A.	The CIA's assertion that disclosure of the total budget 
			amounts would be harmful to the national security is 
			inconsistent with the President's determination to the contrary

		B.	The CIA's assertion that disclosure of the total budget 
			amounts would be harmful to the national security is 
			inconsistent with past practice and is illogical on its face

		C.	There is evidence of bad faith in that the CIA attempting to 
			conceal from the American people the fact that in FY 1999, 
			the intelligence budget was significantly increased

	II.  The CIA has failed to establish that the total budget 
		amounts constitute an "intelligence method" exempt 
		from disclosure under (b)(3)

CONCLUSION

         
___________________________________
STEVEN AFTERGOOD                   )
on behalf of the                   )
FEDERATION OF AMERICAN SCIENTISTS  )
                                   )
     Plaintiff,     		   )
                                   )
v.                                 )		Case No. 1:98CV02107(TFH)
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
     Defendant.                    )
___________________________________)

This is a lawsuit seeking disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C. sec. 552, of the total amount of the intelligence budget appropriated by Congress for fiscal year 1999 and the total amount requested by the Administration for that year. Plaintiff Steven Aftergood is a senior research analyst at the Federation of American Scientists, a policy, research and advocacy organization founded by Manhattan Project scientists in 1945 and currently sponsored by some 60 American Nobel laureates in the sciences. Aftergood Declaration, par. 1.

In 1994, the Congress specifically directed a commission of bipartisan national security experts to examine, as part of a study on the proper role of intelligence after the end of the Cold War, whether the budget request and appropriations figures could be released without harming the national security. In 1996, they unanimously determined that both these figures could be safely disclosed and recommended to the President that he do so.

In response, in April, 1996, President Clinton announced that he was "authorizing" release of the total amount of the intelligence budget, as its disclosure would not harm the national security, but would in fact benefit the public. When the number was not released, plaintiff Aftergood requested it from the CIA under the Freedom of Information Act. But the agency refused to declassify it. Plaintiff thereupon filed suit, and, faced with defending its refusal before the court, in October 1997, the Director of Central Intelligence for the first time since World War II released the total amount of the intelligence budget. After this release of the fiscal year 1997 budget, plaintiff Aftergood again sought and ultimately secured release of the fiscal 1998 budget. The CIA now, however, refuses to disclose either the total appropriations figure for fiscal year 1999 or the total request. The defendant's arguments are flawed; by their logic, the Director of Central Intelligence's actions in releasing the budget numbers for FY 97 and FY 98 would have been harmful to the national security.

In April 1996, President Clinton determined that disclosure of the annual amount appropriated for intelligence purposes would not harm intelligence activities, and he authorized its disclosure. Indeed, he recognized that such disclosure would inform the public -- giving them information most central to democracy: how tax dollars are being spent. As explained by then-Director of Central Intelligence John Deutch, President Clinton "is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and will not, in itself, harm intelligence activities." ¹

The White House announced the President's determination as part of an announcement of "several significant reforms for the Intelligence Community," building on a report issued by a bipartisan group of national security experts, the Commission on the Roles and Capabilities of the United States Intelligence Community ("Brown Commission").² The Brown Commission's bipartisan members, appointed by the President and the Congress, included: Sen. Warren B. Rudman, the current Chairman of the President's Foreign Intelligence Advisory Board (PFIAB); Gen. Lew Allen, Jr. USAF (Ret.), the former Air Force Chief of Staff and former Director of the National Security Agency; Sen. John Warner, now the Chairman of the Senate Armed Services Committee; and Mr. Robert J. Hermann, the former Director of the National Reconnaissance Office.³ The Commission was chartered by statute in 1994 to examine "the efficacy and appropriateness" of U.S. intelligence policies including "to what extent, if any, should the budget for United States intelligence activities be publicly disclosed." ⁴

In its final report, the bipartisan Commission unanimously recommended 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 (to include NFIP, JMIP, and TIARA) and the total amount being requested for the next fiscal year."⁵

President Clinton's acknowledgment that disclosure of the budget amount would not harm the national security meant that there was no basis to classify such information under Executive Order 12958 ("Classified National Security Information") because that Order states that information may be classified only if its disclosure "reasonably could be expected to result in damage to the national security," sec. 1.2(a)(4).

Nevertheless, the President did not release the then-current budget number for fiscal year 1997, but instead "authorized Congress to make public the total appropriation." Exhibit 2. Plaintiff Aftergood, on behalf of the Federation of American Scientists, therefore sought release of the amount under the Freedom of Information Act. Aftergood Declaration, par. 3. The CIA initially denied the request, claiming that the information was exempt from disclosure under both section (b)(1) of the FOIA because it is properly classified and under section (b)(3) because it would tend to reveal intelligence sources and methods. Id. Upon appeal, the CIA acknowledged that the (b)(3) sources and methods exemption does not apply to the intelligence budget total, but it continued to claim the (b)(1) exemption. Aftergood Declaration, par. 3. Plaintiff filed suit under the Freedom of Information Act pointing out that, given the President's determination of no harm, "the CIA's refusal to release the total intelligence budget figure is in violation of the law." D.D.C. No. 97-CVO1096 (TFH). Finally, on the day the agency was due to file its Vaughn affidavit, on October 15, 1997, the CIA released the amount appropriated for fiscal year 1997. Aftergood Declaration, par. 4.

In October 1997, plaintiff then asked for the amount appropriated for fiscal year 1998.⁶ Aftergood Declaration, par. 5. The CIA released the information in March 1998, although only after again being threatened with a lawsuit. Id.

In the meantime, in January 1998, plaintiff Aftergood requested the amount of the total budget request submitted by the Administration for fiscal year 1999. Defendant's Statement of Material Facts, par. 1. The CIA agreed to expedite the request based on the "compelling need" to inform the public concerning the amount of the pending budget request. Defendant's Statement of Material Facts, par. 2. As plaintiff explained, the requested amount was needed to enable public participation in the budget appropriation process. Aftergood Declaration, par. 6. Although the CIA agreed to expedited processing, it failed to respond to the request. On August 31, 1998, plaintiff filed this suit. On November 23, 1998, the CIA finally answered the request, refusing the information on the grounds that it is classified. Defendant's Statement of Material Facts, par. 4. On December 11, the CIA filed an affidavit by Director George Tenet arguing that the budget request is exempt from disclosure under (b)(1) and (b)(3) of the Freedom of Information Act, the latter because the requested information "would jeopardize intelligence sources and methods." Tenet Declaration filed Dec. 11, 1998, par. 20.

In October 1998, plaintiff asked for disclosure of the total amount of the intelligence budget for fiscal year 1999 and, after exhausting his administrative remedies, amended his complaint on February 8, 1999 to include the amount in this lawsuit. Defendant's Statement of Material Facts, pars. 5-9. On April 6, 1999, the CIA filed a second affidavit by DCI Tenet arguing that both the amount of the administration's budget request and the actual amount appropriated are exempt from disclosure. While the DCI continued to assert the applicability of both exemption (b)(1) and (b)(3), he no longer claimed that disclosure of the requested budget amount would disclose intelligence sources, as he had in the affidavit filed four months earlier.

Defendant CIA seeks summary judgment that the requested and appropriated amounts of the FY 1999 intelligence budget are exempt from disclosure under the Freedom of Information Act, ("FOIA"), 5 U.S.C. sec. 552. The CIA argues first that the information is "properly classified" under Executive Order 12958 and therefore exempt under 5 U.S.C. sec. 552 (b)(1) and second that release of the figures would tend to reveal intelligence methods that are exempted from disclosure by statute under 5 U.S.C. sec. 552 (b)(3).

Even when asserting national security exemptions, an agency bears the burden to justify exemptions under FOIA. Campbell v. Department of Justice, 164 F.3d, 20, 30, (D.C. Cir. 1998) citing PHE, Inc. v. Department of Justice, 983 F.2d 248, 250 (D.C.Cir. 1993). While a declaration from an appropriate official in support of summary judgment merits "substantial weight," Id. at 30 (citing King v. Department of Justice, 830 F.2d 472, 480 (D.C.Cir. 1980)), in determining whether information is exempt from the disclosure requirements of the FOIA, this Court must "determine the matter de novo". 5 U.S.C. sec. 552(a)(4)(B). And the Court of Appeals has made it clear that according deference to agency declarations "is not equivalent to acquiescence." Campbell v. Department of Justice, 164 F.3d at 30 (reversing grant of summary judgment to FBI that information was properly exempt on national security grounds under exemption 1). Specifically, the government is not entitled to summary judgment where its declaration in support of exemption fails to account for contrary record evidence or is evidence of bad faith. Campbell v. Department of Justice, 164 F.3d, at 30 (citing King v. Department of Justice, 830 F.2d at 218).

Here, defendant CIA's argument that the requested information is exempt from disclosure under FOIA exemptions 1 and 3 rests on the Declaration of the Director of Central Intelligence ("DCI"). But the CIA is not entitled to summary judgment under exemption 1 because the DCI's Declaration fails to account for contrary record evidence and because it evidences bad faith. The CIA is not entitled to summary judgment under exemption 3 because disclosure of the requested information would not reveal intelligence methods.

The CIA never even mentions that the DCI's declaration is directly contradicted by President Clinton's determination that "disclosure of the annual amount appropriated for intelligence purposes will inform the public and will not, in itself, harm intelligence activities."⁷ The 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 (to include NFIP, JMIP, and TIARA) and the total amount being requested for the next fiscal year."⁸ The long-standing view of the Executive Branch has always been that such determinations concerning classification of information are the responsibility and indeed, constitutionally, the sole responsibility of the President. The DCI is constitutionally only an "inferior officer" appointed by the President, whose authority to classify information is only delegated authority from the President. Tenet Declaration, par. 14. The DCI offers no explanation as to how he can reach a determination contrary to that of the President concerning harm to the national security. He does not and cannot account for how his position squares with the President's determination that disclosure would not harm the national security.⁹ On this ground alone, summary judgment must be denied.

The three arguments advanced by the CIA that disclosing the total budget numbers for FY 1999 would harm the national security all come down to an assertion that foreign adversaries could use the numbers to learn something useful to them about U.S. intelligence activities. The CIA argues that disclosure would be harmful for three reasons: (1) that it "reasonably could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses" Memorandum of Points and Authorities at 10, quoting Tenet Declaration par. 15; (2) that it "reasonably could be expected to assist foreign governments in correlating specific spending figures with particular intelligence programs," Id. at 11, quoting Tenet Declaration, par. 18; and (3) that disclosure "could be expected to free foreign governments' limited collection and analysis resources for other efforts targeted against the United States, Id. at 13, quoting Tenet Declaration, par. 22.

Each of these assertions necessarily implies that foreign adversaries could use the total budget figures to reverse engineer some more specific information that would then be useful to them in these ways. But even if such reverse engineering were possible and disclosure of the total budget numbers would reveal some hitherto unknown and more specific information to intelligence analysts, then the DCI's disclosures of the 1997 and 1998 amounts would have been harmful to the national security.

The DCI offers no reason why revealing the numbers for FY 1997 and 1998 was different and not harmful. To the contrary, the DCI's assertions about disclosing the 1999 budget apply with even greater force to the two earlier disclosures. For example, the DCI states, "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 reflects [sic] 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." Tenet Declaration, par. 16. But the DCI himself previously disclosed the total budget appropriation for two years in a row thereby, by his logic, enabling U.S. adversaries to perform the very analysis that the DCI now claims would damage national security.

The DCI's assertion that when he released the totals for FY 1997 and 1998, he reserved making a decision about future years, is not of course an explanation about why disclosure is harmful now if it was not harmful then. The only hint contained in his declaration is the statement that in deciding to release or withhold the numbers, he considers information publicly available in press reports, among other sources. This is a curious statement, since at the time of revealing the information for the two previous years, the DCI could not know what additional information might appear in the press. It is also inconsistent with the CIA's oft-repeated assertion that the official confirmation of publicly known information provides something of value to foreign adversaries and therefore is grounds for withholding information.

In sum, the CIA's own previous disclosures contradict its current assertion of harm.

Even in the absence of such prior disclosures, however, the DCI's assertion that foreign adversaries could reverse engineer some useful information from knowing the total budget amounts is itself unsupported and on its face contrary to both common sense and logic.

The total budget amount includes the budgets for numerous agencies and hundreds of programs. It includes, for instance, the budgets of the National Foreign Intelligence Program (NFIP), the Joint Military Intelligence Program (JMIP), and the Tactical Intelligence and Related Activities (TIARA) program. Each of these components in turn is comprised of numerous smaller components.

And significantly, these components may vary from year to year. What we call "the intelligence budget" is a substantially arbitrary construct, an artifact of the budgeting process. As then-DCI R. James Woolsey explained, "[I]t is extremely difficult to identify a reliable and stable number that can capture what we spend on intelligence. ... [T]he Tactical Intelligence and Related Activities (TIARA) component is neither a separate nor a clearly defined program, but a loose amalgamation of activities that may vary from year to year, depending on how the various military services decide what constitutes tactical intelligence."¹⁰

In arguing that foreign adversaries could reverse engineer some useful information from knowing the bottom line total budget figure, the DCI offers no evidence or explanation that such reverse engineering is in fact possible given the large number of variables in the make-up of the total budget and the fact that the composition of the budget varies from year to year.¹¹ Without evidence or explanation, the bare assertion of reverse engineering is simply not credible.

Moreover, there is evidence to the contrary. Two of the United States's closest allies and intelligence partners, the United Kingdom and Australia, both disclose their total intelligence budget.¹² If such reverse engineering were possible, both the UK and Australia would have every reason to keep their budgets secret as well.¹³ Furthermore, Federation of American Scientists staff member, John Pike, whose budget analysis was submitted by the CIA as "an example of the kind of hypothetical intelligence budgets produced by budget analysts" that would be aided by disclosures of the budget numbers, (Mem. of Points and Authorities at 18 and Exh. C), has explained that knowing the total amount of the intelligence budget is not in fact helpful in performing the budget analysis. As an experienced budget analyst, Mr. Pike points out that the total budget is an aggregate of a very large number of agency and program budgets, which are for the most part individually very small relative to the total and which vary from year to year as to whether they are even included in the total. Thus, the total budget amount is arrived at by a process that is not apparent to external observers, and it is not possible to take the budget totals and deduce anything about specific spending at individual agencies or programs. Mr. Pike was unable to take the official budget totals as disclosed in 1997 and 1998 and retrospectively to identify in the published budget where specific amounts were located.¹⁴

Finally, while the CIA asserts that disclosure of the total budget amounts will reveal useful information to foreign adversaries about U.S. intelligence activities, much of such information has already been officially disclosed by CIA officials, including DCI Tenet himself and others. Indeed, the DCI has provided details to the New York Times about how the CIA will spend its FY 1999 appropriation, the very information he now claims would be revealed to the detriment of national security if the total budget amounts were released. Thus, the Times reported:

"Some money will jump-start the biggest recruitment drive in C.I.A. history and some to spy satellites and supercomputers.
"Hiring a new generation of spies and analysts is crucial, [DCI Tenet] said. 'I want people to know that this is not a fat old organization just asking for money,' Mr. Tenet said. 'It has to pay for new people, 'recruitment, retention, pay, performance, education and training,' and new equipment or hang up its cloak and dagger." ¹⁵

For example, while the DCI argues that disclosure of the budget request would be harmful because it "could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses, " because "[t]he difference between the appropriation for one year and the Administrations budget request for the next year provides a measure of its own intelligence programs," Tenet Declaration, par. 17, such assessments are already publicly provided. For example, in January 1998, in considering the Intelligence Community budget for fiscal year 1999, Congress heard public testimony from DCI Tenet, as well as from others whose budgets are included in the intelligence total, including the Director of the Defense Intelligence Agency and the Assistant Secretary of State for Intelligence and Research.¹⁶ All gave detailed assessments of the greatest threats to the United States and their concomitant priorities for the coming year.¹⁷ DCI Tenet said, for example:

"Mr. Chairman, let me assure you that we are increasing our efforts to uncover information warfare activities. We are also developing the tools needed to improve our ability to detect and counter information warfare attacks." ¹⁸

"The additional money for intelligence contained in the omnibus spending bill (the amount is classified) will go towards rebuilding intelligence collection and analytic capabilities that, as a result of decreasing resources, were seriously eroding. These new capabilities will be crucial, especially in the first few decades of the next century. Specifically, the additional funds will help the Intelligence Community achieve the objectives advanced by the HPSCI over the course of the 105th Congress: recapitalizing technological intelligence collection programs, rebuilding espionage capabilities, developing covert action capabilities appropriate to combat transnational threats and hostile states, and increasing analytic depth and breadth." ¹⁹

House Speaker Newt Gingrich confirmed Congress's view that "past cuts in intelligence had hurt key programs, including innovation of advanced technological collection techniques as well as espionage operations and analysis." ²⁰

Many other examples exist where officials laid out the intelligence agencies' priorities and interests. In connection with the FY 1998 budget, DCI Tenet provided an assessment of the US Intelligence Community's own strengths and weaknesses:

"Senator KYL. ... Last fall, the Administration declassified a portion of the National Intelligence Estimate which had been published in August 1993, which states, and I'm quoting, 'The capability of the Intelligence Community to monitor compliance with the Chemical Weapons Convention is severely limited and likely to remain so for the rest of the decade. The key provision of the monitoring regime, challenge inspections at undeclared sites, can be thwarted by a nation determined to preserve small, secret programs, using the delays and managed access rules allowed by the Convention.' Is this still the judgment of the Intelligence Community?
Acting Director TENET. Well, Mr. Chairman, I think the 19-- we haven't updated the 1993 estimate. [sic] but we will for when we have hearings. I'll say that our ability to monitor probably still is not very good. ..." ²¹

"Bosnia. Let me now turn to Europe and the conflict in Bosnia. ... Today, our main task is force protection for U.S. and allied troops that compose IFOR as they implement the provisions of the Dayton Agreement. ... In Europe, National Intelligence Support teams are deployed with our troops, to put at their immediate disposal all of the expertise and technical resources of the Intelligence Community. Intelligence officers provide accurate, detailed maps and information on the terrain, the location of mines and potentially hostile forces, including outside forces that could pose a danger. All of this material is tailored to the needs of individual commanders and it is shared, as appropriate, with allied forces." ²²

"Senator WARNER. Do you think this administration is according proper weight to your budget and that of the CIA, given what you have just said?
General CLAPPER. Sir, I think, if we don't take -- if the rate of reduction is not increased over what it on what we are now -- the slopes we are now on -- both from a standpoint of manpower reductions which have been mandated, both by the Congress and, in my case, by the department -- and assuming that we can plan around that continued slope, I think we can do that. In the case of the program that I manage, the general defense intelligence program, we have made a conscious decision to try to invest in automation and enhanced communications so that we get the most out of the production capability that we have and that we work on a -- what I consider the major deficiency from Desert Storm, which was moving intelligence around.
Senator WARNER. ... Director Woolsey, compare those rate of reductions for your agency and the intelligence community with the other rate of reduction, say, in the Department of Defense. Are you not declining at a faster rate or have a --
Mr. WOOLSEY. Well, the --
Senator WARNER. -- more significant end number of reduction?
Mr. WOOLSEY. In terms of the military in the intelligence community and the military in the Department of Defense, Senator Warner, each of those will go down over the decade of the '90s by approximately a third, just almost right on 33 percent. The civilians in the intelligence community will go down, including those in General Clapper's organization and the CIA and NSA and the others, will go down by between 21 and 22 percent during the decade of the '90s. ...
...
Senator Deconcini. ... Did not the Congress reduce the intelligence over a five-year period by 17 percent? Isn't that the budget that we set, and didn't Defense and OMB raise that to something in the neighborhood of 22 or 23 percent? Isn't that where your goal is now?
Mr. WOOLSEY. Let me say one word
Senator DECONCINI. On personnel -- personnel.
Mr. WOOLSEY. Let me say one -- oh, on personnel?
Senator DECONCINI. On personnel.
Mr. WOOLSEY. Let me say one word on this and then ask General Clapper to. Once a reduction comes, Mr. Chairman, down here sort of at my level, on the working level, we don't really allocate as between how much of it came from Congress and how much of it came from the executive branch. Some of this has been these percentage reductions in personnel have been legislatively mandated, some of them have been made in response to suggestions or negotiations with the executive. In personnel, we've been on a fairly steady 3 percent decline per year --
Senator DECONCINI. Which is going to bring you where?
Mr. WOOLSEY. Which is going to bring us down in this range of 21 to 22 percent by '99.
Senator DECONCINI. By 1997 -- by 1999.
Mr. WOOLSEY. By '99.
Senator DECONCINI. Twenty-three --
Mr. WOOLSEY. It's 23 percent for the intelligence agencies that are part of the Defense Department and the CIA, and then a lesser percent for those in the other parts of the intelligence-- Department of Treasury's people and the like, ..." ²³

Summary judgment on the CIA's exemption 1 claim should be denied because the DCI's declaration is contradicted by contrary record evidence, and there is evidence of bad faith.

In reviewing the CIA's exemption 3 claim, this Court must determine whether the withheld material falls within the coverage of the statutory protection for sources and methods. Fitzgibbon v. CIA, 911 F.2d 755, at 761-762 (D.C. Cir. 1990). The CIA has failed to satisfy its burden of proof that the budget totals are intelligence sources or methods.

The CIA itself has repeatedly acknowledged that exemption (b)(3) for intelligence sources and methods does not apply to total budget figures. First, in 1995, in response to an earlier request by plaintiff for the amount of the total budget, the CIA acknowledged that the (b)(3) exemption for intelligence sources and methods does not apply.²⁷ Then, in 1996, when plaintiff requested the total appropriation for FY 1997, the CIA's initial letter of denial cited both exemption (b)(1) and (b)(3), but the CIA then acknowledged that it had mistakenly asserted the (b)(3) sources and methods exemption and "apologized" for doing so.²⁸ Moreover, if disclosing the total intelligence budget reveals a secret intelligence method, that information was already revealed when the DCI released the totals for FY 1997 and FY 1998. Once again, the DCI's declaration offers no explanation for his inconsistency in revealing last year what now allegedly constitutes an intelligence method. These past acknowledgments defeat the CIA's new litigation position that exemption (b)(3) does apply.

And, in raising (b)(3) as a defense to this lawsuit, the agency and the DCI himself have made shifting and inconsistent claims. In his first Declaration filed in this case in December 1998, the DCI claimed that the total amount of the request is exempt because it "would tend to reveal [both] intelligence sources and methods." Tenet Declaration of December 11, 1998, par. 23. But in his subsequent declaration, filed a mere four months later, the DCI no longer claims that intelligence sources could be improperly revealed by disclosure of the budget total.

Finally, as a matter of logic, it is clear that, as the CIA has previously acknowledged, the requested budget totals are not an intelligence method within exemption (b)(3). The DCI argues that disclosure of the total appropriation amount would reveal an intelligence method because it would facilitate determining which appropriation lines in the budget contain amounts for secret intelligence programs. But the argument is circular; the intelligence appropriations are hidden in various line items in order to conceal the budget total. If the total intelligence budget request and appropriation were public, these figures could then be identified in a single budget line item.

Publication of a single budget request and appropriation figure would actually enhance the security of the intelligence budget. It is the current practice of breaking up the intelligence budget and concealing it in separate line items that allegedly offers a skilled analyst a chance of "correlating specific spending figures with particular intelligence programs" (Tenet Declaration, par. 18) because it provides more information to analyze. Disclosing a single budget request and appropriation figure in a single line item instead of using multiple line items would obscure rather than illuminate the spending for particular intelligence programs. It is not an intelligence method.

For all the above reasons, defendant's motion for summary judgment that the requested information concerning the total amounts requested and appropriated for intelligence activities for FY 1999 is exempt from the disclosure requirements of the Freedom of Information Act should be denied.

Respectfully submitted,

______________________________
KATE MARTIN
D.C. Bar No. 949115
Center for National Security Studies
2130 H Street, NW
Gelman Library, Suite 701
Washington, DC 20037
(202) 994-7060
Counsel for Plaintiff

May 14, 1999

1. STATEMENT OF DCI JOHN DEUTCH, INTELLIGENCE COMMUNITY REFORM, BEFORE THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE, U.S. House of Representatives, at 5 (April 23, 1996)[hereinafter cited as "DEUTCH"][attached hereto as Exhibit 1.]

2. The White House Press Secretary announced that, "reflecting the President's determination to promote openness in the Intelligence Community, he has authorized Congress to make public the total appropriation -- the bottom line figure -- for intelligence at the time the appropriations conference report is approved by Congress." STATEMENT BY THE PRESS SECRETARY, PRESIDENTIAL ANNOUNCEMENT ON INTELLIGENCE COMMUNITY REFORMS, April 23, 1996 [attached hereto as Exhibit 2].

3. L. Britt Snider, currently Inspector General of the CIA served as Staff Director of the Commission.

4. PUB. LAW NO. 103-359 (on establishment of the Commission on the Roles and Capabilities of the United States Intelligence Community).

5. REPORT OF THE COMMISSION ON THE ROLES AND CAPABILITIES OF THE UNITED STATES INTELLIGENCE COMMUNITY, PREPARING FOR THE 21ST CENTURY: AN APPRAISAL OF U.S. INTELLIGENCE, March 1, 1996 at 142 (emphasis added)[hereinafter cited as "COMMISSION REPORT"][attached hereto as Exhibit 3].

6. Congress usually appropriates the intelligence budget for the fiscal year beginning in October, in late summer or September.

7. DEUTCH, Exhibit 1 (emphasis added).

8. COMMISSION REPORT, Exhibit 3, recommendation 14-2, at 142

9. It may be worth noting that, after implementing the President's determination and releasing the total budget figures for two years, the CIA first announced that it would not release this year's figure on November 23, 1998, while the President was fighting impeachment proceedings.

10. STATEMENT OF DCI R. JAMES WOOLSEY, PUBLIC DISCLOSURE OF THE AGGREGATE INTELLIGENCE BUDGET FIGURE, Hearings before the Permanent Select Committee on Intelligence, U.S. House of Representatives, 103rd Cong, 2nd Sess. at 9 (Feb. 22, 1994)[attached hereto as Exhibit 4].

11. For example, a brand-new intelligence agency, the National Imagery and Mapping Agency was created in 1996.

12. COMMISSION REPORT, Exhibit 3, at 142.

13. A Senate Select Committee, as early as 1976, outlines the fallacy of the reverse engineering argument:

"Although [the DCI] notes that the CIA's total budget figure would allow governments to refine their estimates of the activities of a major component of the United States intelligence community, he provides no evidence of how the publication of this one figure would increase the government's knowledge of, for example, the clandestine operational activities of the CIA. There would, of course, be some refinement if it were known that the CIA's budget was $X millions rather than $X + 1 millions. Such refinement goes on at all times, but the question is whether such a gain by hostile powers is sufficient to justify overriding the constitutional requirement that the American people be told how their funds are spent. Having an officially acknowledged budget total does not signal to a hostile power manpower levels in the Clandestine Service, let alone the number of deep cover agents. Having an officially acknowledged aggregate figure does not reveal the cost of a reconnaissance vehicle, let alone its technological capability.

...

A change in the CIA's total budget from one year to the next may be due to a number of factors: inflation, cutbacks in activities, a major reorganization, or long-term gains in efficiency, for example. Assuming that an increase in the CIA's budget alerted hostile powers to some change in the Agency's activities, it would not in itself reveal what the new activity was -- a new covert action project, more material procurement, or an increase in analytical capability through mechanization. For [the DCI's] argument to be valid not only must the hostile power be able accurately to determine what the activity is -- for instance, a new reconnaissance system -- but that power would have to gain, covertly, an enormous amount of tightly guarded information, such as the technological capabilities of the vehicle and the surveillance systems which it contained. It would seem that a hostile power able to gain that information would be able to discover the total of the CIA's budget, a much more widely known figure. The possibility that a hostile power may pierce all the barriers designed to limit dissemination of closely held information cannot be used to justify denying the American people information which the Constitution guarantees them, and which is widely published, and which must be assumed to be within the grasp of hostile powers.

... Finally, the claims about damage to the national security resulting from publication of the aggregate figure for each intelligence agency must be viewed in light of far more detailed, and continuing, exposure of the budgets of other agencies vital to the national security. Enormous amounts of information have been provided to the public, for instance, about the work of the Department of Defense and the Atomic Energy Commission. Yet disclosure of funds appropriated and expended by these agencies did not and does not reveal vital national secrets. As Senator Symington noted, 'There's nothing secret about the ... cost of a nuclear aircraft carrier or the cost of the C-5A.' But 'knowledge of the cost does not equal knowledge of how the weapons operate or how they would be utilized.' Similarly, knowledge of 'the overall cost of intelligence does not in any way entail the release of information about how the various intelligence groups function, or plan to function.'"

S. RPT. NO. 755, 94TH CONG., 2ND SESS., Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Book I: Foreign and Military Intelligence, at 379-381 (April 26, 1976).

14. Pike Declaration, par. 8. The fact that Mr. Pike does not have access to classified information in no way undercuts this conclusion. Because the total figures are aggregates of spending for hundreds of programs, even the possession of "clandestinely acquired information" would not permit the inference of significant new information from the budget totals.

15. THE U.S. INTELLIGENCE CHIEF STEPS UP TO THE PLATE, New York Times, Oct. 23, 1998 [attached hereto as Exhibit 5].

16. S. HRG. 587, 105TH CONG., 2ND. SESS., CURRENT AND PROJECTED NATIONAL SECURITY THREATS TO THE UNITED STATES, Senate Select Committee on Intelligence (Jan. 28, 1998).

17. See, e.g., Statement of Director of Central Intelligence George J. Tenet before the Senate Select Committee on Intelligence, Hearing on Current and Projected National Security Threats to the United States 1-2 (Jan. 28, 1998)

18. Id. At that same hearing, the Defense Intelligence Agency Director also outlined how that agency "discern[s]" various threats to the United States and, therefore, what the agency will spend resources on. Statement of Lieutenant General Patrick M. Huges, Director, Defense Intelligence Agency, before the Senate Select Committee on Intelligence, Id. at 5-6.

19. U.S. House of Representatives Permanent Select Committee on Intelligence, Press Release, Chairman Porter Goss (R-FL) Hails Additional Funding for Intelligence (Oct. 21, 1998)[Attached hereto as Exhibit 6].

20. MUCH OF INTELLIGENCE FUNDING WILL GO TO SATELLITES, Wash. Post, Oct. 23, 1998 [Attached hereto as Exhibit 7].

21. S. Hrg. No. 201, 105th Cong., 1st Sess., Hearing on Current and Projected National Security Threats to the United States, 38 (Feb. 5, 1997).

22. Remarks of Director of Central Intelligence John Deutch, S. Hrg. No. 510, 104th Cong., 2nd Sess., Hearing on Current and Projected National Security Threats to the United States and its Interests Abroad, 7 (Feb. 22, 1996).

23. Remarks of Director of Central Intelligence R. James Woolsey, S. HRG. NO. 15, 104TH CONG., 1ST SESS., WORLDWIDE INTELLIGENCE REVIEW, 5-6 (Jan. 10, 1995).

24. There is no basis for arguing that the requested budget amount is more sensitive than the appropriated amount. To the contrary, the requested amount bears less relation to actual intelligence activities than does the total appropriation and is, therefore, even less sensitive.

25. DEUTCH, Exhibit 1.

26. Rep. Porter Goss, Chairman of the House Permanent Select Committee on Intelligence told the Associated Press just yesterday that "this year's spending on intelligence marked a sharp increase over 1998." HOUSE INCREASES CIA BUDGET, Associated Press, May 14, 1999. See also, e.g., BIG CASH INFUSION AIMS TO REBUILD ANEMIC C.I.A., NEW YORK TIMES, Oct. 22, 1998. [Both attached hereto as Exhibit 8].

27. Letter to Plaintiff Aftergood from Edmund Cohen, CIA Agency Release Panel Chairman, Feb. 28, 1995 [attached hereto as exhibit 9.]; Aftergood Declaration, par. 2

28. Letter to Plaintiff Aftergood from Lee S. Strickland, CIA Information and Privacy Coordinator, Jan. 17, 1997 (in response to Plaintiff's request under the Freedom of Information Act for disclosure of the "total aggregate intelligence budget for Fiscal Year 1991")[attached hereto as Exhibit 6]; Aftergood Declaration, par. 3

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