FAS Note: The following December 11, 1998 Declaration has been revised and superseded by an April 6, 1999 Declaration.
___________________________________
STEVEN AFTERGOOD )
on behalf of the )
FEDERATION OF AMERICAN SCIENTISTS )
307 Massachusetts Avenue, NE )
Washington, DC 20002 )
)
Plaintiff, )
)
v. ) Civ. No. 98-2107 (TFH)
)
CENTRAL INTELLIGENCE AGENCY )
Washington, DC 20505 )
)
Defendant. )
___________________________________)
INTRODUCTION
1. I am the Director of Central Intelligence (DCI). I was appointed DCI on 11 July 1997. As DCI, I serve as head of the United States intelligence community, act as the principal adviser to the President for intelligence matters related to the national security, and serve as head of the Central Intelligence Agency (CIA).
2. Through the exercise of my official duties, I am generally familiar with plaintiff's civil action. I make the following statements based upon my personal knowledge, upon information made available to me in my official capacity, and upon the advice and counsel of the CIA's Office of General Counsel.
3. I understand that plaintiff has submitted a Freedom of Information Act (FOIA) request for "a copy of documents that indicate the amount of the total budget request for intelligence and intelligence-related activities for fiscal year 1999." (Italics in original.) I also understand that plaintiff alleges that the CIA has improperly withheld such documents. I shall refer to the requested information as the "budget request."
4. As head of the intelligence community, my responsibilities include developing and presenting to the President an annual budget request for the National Foreign Intelligence Program (NFIP), and participating in the development by the Secretary of Defense of the annual budget requests for the Joint Military Intelligence Program (JMIP) and Tactical Intelligence and Related Activities (TIARA). The budgets for the NFIP, JMIP, and TIARA jointly comprise the budget of the United States for intelligence and intelligence-related activities.
5. The CIA has withheld the budget request on the basis of FOIA Exemption (b)(1) because it is currently and properly classified under Executive Order 12958, and on the basis of FOIA Exemption (b)(3) because it is exempted from disclosure by the National Security Act of 1947 and the Central Intelligence Agency Act of 1949. The purpose of this declaration is to describe my bases for determining that disclosure of the budget request reasonably could be expected to cause damage to the national security and would tend to reveal intelligence sources and methods.
6. In October 1997, I publicly disclosed that the aggregate amount appropriated for intelligence and intelligence-related activities for fiscal year 1997 was $26.6 billion. At the time of this disclosure, I issued a public statement that included the following two points:
Second, 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. In other words, the Administration intends to draw the line at the top-line, aggregate figure. Beyond this figure, there will be no other disclosures of currently classified budget information because such disclosures could harm national security.
8. Since the enactment of the intelligence appropriation for fiscal year 1998, the budget process has produced: 1) the fiscal year 1998 supplemental appropriation; 2) the Administration's budget request for fiscal year 1999 (the subject of this litigation); 3) the fiscal year 1999 appropriation; and 4) the fiscal year 1999 emergency supplemental appropriation. Information about each of these figures-- some of it accurate, some not-- has been reported in the media. In evaluating whether to release the Administration's budget request for fiscal year 1999, I cannot review this possible release in isolation. Instead, I have to consider whether release of the requested information could add to the mosaic of other public and clandestinely-acquired information by our adversaries about the intelligence budget in a way that could reasonably be expected to damage the national security. If release of the requested information adds a piece to the intelligence jigsaw puzzle-- even if it does not complete the picture-- such that the picture is more identifiable, then damage to the national security could reasonably be expected. After conducting such a review, I have determined that release of the Administration's intelligence budget request for fiscal year 1999 reasonably could be expected to cause damage to the national security, or otherwise tend to reveal intelligence sources and methods. In the paragraphs that follow, I will describe the information I reviewed and how I reached this conclusion.
9. At the creation of the modern national security establishment in 1947, national policymakers had to address a paradox of intelligence appropriations: the more they publicly disclosed about the amount of appropriations, the less they could publicly debate about the object of such appropriations without causing damage to the national security. They struck the balance in favor of withholding the amount of appropriations. For over fifty years, the Congress has acted in executive session when approving intelligence appropriations to prevent the identification of trends in intelligence spending and any correlation between specific spending figures with particular intelligence programs. The following paragraphs describe the bases for withholding the budget request.
10. The authority to classify information is derived from a succession of Executive orders, the most recent of which is Executive Order 12958, "Classified National Security Information." Section 1.1(c) of the Order defines "classified information" as "information that has been determined pursuant to this order or any predecessor order to require protection against unauthorized disclosure." The CIA has withheld the budget request as classified information under the criteria established in Executive Order 12958.
11. Information may be originally classified under the Order only if it: 1) is owned by, produced by or for, or is under the control of the United States Government; 2) falls within one or more of the categories of information set forth in section 1.5 of the Order; and 3) is classified by an original classification authority who determines that its unauthorized disclosure reasonably could be expected to result in damage to the national security that the original classification authority can identify or describe.1 The classification of the budget request meets these requirements.
13. Finally, I have made the determination required under the Order to classify the budget request. By Presidential Order of 13 October 1995, "National Security Information," 3 C.F.R. 513 (1996), reprinted in 50 U.S.C. sec. 435 note (Supp. I 1995), and pursuant to section 1.4(a)(2) of Executive Order 12958, the President designated me as an official authorized to exercise original TOP SECRET classification authority. I have determined that the unauthorized disclosure of the budget request reasonably could be expected to cause damage to the national security. Consequently, I have classified the budget request at the CONFIDENTIAL level. In the paragraphs below, I will identify and describe the foreseeable damage to national security that reasonably could be expected to result from disclosure of the budget request.
14. Disclosure of the budget request reasonably could be expected to cause damage to the national security in several ways. First, disclosure of the budget request reasonably could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses. The difference between the appropriation for one year and the Administration's budget request for the next year provides a measure of the Administration's unique, critical assessment of its own intelligence programs. A requested budget decrease reflects a decision that existing intelligence programs are more than adequate to meet the national security needs of the United States. A requested budget increase reflects a decision that existing intelligence programs are insufficient to meet our national security needs. A budget request with no change in spending reflects a decision that existing programs are just adequate to meet our needs.
15. Disclosure of the budget request would provide foreign governments with the United States' own overall assessment of its intelligence weaknesses and priorities and assist them in redirecting their own resources to frustrate the United States' intelligence collection efforts, with the resulting damage to our national security. Because I must deny foreign governments information that would assist them in assessing the strength of the United States intelligence capabilities, I have determined that disclosure of the budget request reasonably could be expected to cause damage to the national security. I am unable to elaborate further on the bases for my determination without disclosing classified information. Additional information in support of my determination is included in my classified declaration.
16. Second, disclosure of the budget request reasonably could be expected to assist foreign governments in correlating specific spending figures with particular intelligence programs. Foreign governments are keenly interested in the United States' intelligence collection priorities. Nowhere are those priorities better reflected than in the level of spending on particular intelligence activities. That is why foreign intelligence services, to varying degrees, devote resources to learning the amount and objects of intelligence spending by other foreign governments. The CIA's own intelligence analysts conduct just such analyses of intelligence spending by foreign governments.
17. Budget figures provide useful benchmarks that, when combined with other public and clandestinely-acquired information, assist experienced intelligence analysts in reaching accurate estimates of the nature and extent of all sorts of foreign intelligence activities, including covert operations, scientific and technical research and development, and analytic capabilities. I expect foreign intelligence services to do no less if armed with the same information. Such intelligence would permit foreign governments to learn about United States' intelligence collection priorities and redirect their own resources to frustrate the United States' intelligence collection efforts, with the resulting damage to our national security. Therefore, I have determined that disclosure of the budget request reasonably could be expected to cause damage to the national security. I am unable to elaborate further on the bases for my determination without disclosing classified information. Additional information in support of my determination is included in my classified declaration.
18. And third, disclosure of the budget request reasonably could be expected to free foreign governments' limited collection and analysis resources for other efforts targeted against the United States. No government has unlimited intelligence resources. Resources devoted to targeting the nature and extent of the United States' intelligence spending are resources that cannot be devoted to other efforts targeted against the United States. Disclosure of the budget request would free those foreign resources for other intelligence collection activities directed against the United States, with the resulting damage to our national security. Therefore, I have determined that disclosure of the budget request reasonably could be expected to cause damage to the national security.
19. In summary, I have determined that disclosure of the budget request reasonably could be expected to provide foreign intelligence services with a valuable benchmark for identifying and frustrating United States' intelligence programs. For all of the above reasons, singularly and collectively, I have determined that disclosure of the budget request for fiscal year 1999 reasonably could be expected to cause damage to the national security. Therefore, I have determined that the budget request is currently and properly classified CONFIDENTIAL.
20. Section 103(c)(6) of the National Security Act of 1947, as amended, provides that the DCI, as head of the intelligence community, "shall protect intelligence sources and methods from unauthorized disclosure." Disclosure of the budget request would jeopardize intelligence sources and methods because disclosure would tend to reveal how and for what purposes intelligence appropriations are secretly transferred to and expended by intelligence agencies.
21. There is no single, separate appropriation for the CIA. The appropriations for the CIA and other agencies in the intelligence community are hidden in the various annual appropriations acts. The specific locations of the intelligence appropriations in those acts are not publicly identified, both to protect the classified nature of the intelligence programs themselves and to protect the classified intelligence methods used to transfer funds to and between intelligence agencies.
22. Because there are a finite number of places where intelligence funds may be hidden in the federal budget, a skilled budget analyst could construct a hypothetical intelligence budget by aggregating suspected intelligence line items from the publicly- disclosed appropriations. Release of the budget request (or the actual appropriation) would provide a benchmark to test and refine such a hypothesis. Repeated disclosures of either the budget request or budget appropriation could provide more data with which to test and refine the hypothesis. Exhibit 1 is an example of such a hypothesis. Confirmation of the hypothetical budget could disclose the actual locations in the appropriations acts where the intelligence funds are hidden, which is the intelligence method used to transfer funds to and between intelligence agencies.
23. Sections 5(a) and 8(b) of the CIA Act of 1949 constitute the legal authorization for the secret transfer and spending of intelligence funds. Together, these two sections implement Congress' intent that intelligence appropriations and expenditures, respectively, be shielded from public view. Simply stated, the means of providing money to the CIA is itself an intelligence method. Disclosure of the budget request could assist in finding the locations of secret intelligence appropriations, and thus defeat these congressionally-approved secret funding mechanisms. Therefore I have determined that disclosure of the budget request would tend to reveal intelligence sources and methods that are protected from disclosure. I am unable to elaborate further on the bases for my determination without disclosing classified information. Additional information in support of my determination is included in my classified declaration.
24. In fulfillment of my statutory responsibility as head of the United States intelligence community, as the principal adviser to the President for intelligence matters related to the national security, and as head of the CIA, to protect classified information and intelligence sources and methods from unauthorized disclosure, I have determined for the reasons set forth above and in my classified declaration that the Administration's intelligence budget request for fiscal year 1999 must be withheld because its disclosure reasonably could be expected to cause damage to the national security and would tend to reveal intelligence sources and methods.
I hereby certify under penalty of perjury that the foregoing is true and correct.
Executed this 11 day of December, 1998.
I certify that on December 11, 1998, I caused a copy of the foregoing Declaration of George J. Tenet 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