SECRECY NEWS
from the FAS Project on Government Secrecy
April 2, 2001

PATRIOTISM AND CIA BUDGET SECRECY

Patriotism means loyalty to one's country. But unlike most other countries, the United States is established upon a set of principles that transcend ethnicity or other incidental attributes. So no one can be an American patriot who is not devoted to those principles, which are enshrined in the Constitution and the Bill of Rights.

This is inconvenient for those in the U.S. intelligence community who would claim the mantle of patriotism without the burden of adhering to the precepts of American democracy.

When President Bush visited the Central Intelligence Agency on March 20, DCI George J. Tenet told him: "Mr. President, you will never find a more dedicated, hardworking, patriotic, decent group of Americans than the men and women of CIA and our Intelligence Community."

Granting that CIA employees are dedicated, hardworking, and decent, are they also patriotic? Not if patriotism implies strict adherence to the Constitution.

CIA's secretive budgeting practices place the Agency outside the clear boundaries defined by the U.S. Constitution, which dictates in Article I that "a regular statement and account of the receipts and expenditures of all public money shall be published from time to time."

Though the details of what is required by such a "statement and account" are not spelled out, the Constitution nevertheless guarantees that "all public money" shall somehow be publicly accounted for. This is an indispensable feature of American governance.

Remarkably, the Constitution's only other explicit "public right to know" requirement -- which dictates that each House of Congress publish a journal of its proceedings, i.e. the Congressional Record -- includes an exception for portions that "may require secrecy." In contrast, there is no comparable exemption from publication for secret budget expenditures.

Historically, it is true, some forms of secret spending have been accepted as a necessary compromise. Even George Washington had a $40,000 contingency fund to use for confidential diplomatic purposes, as Louis Fisher noted in his 1975 book Presidential Spending Power.

The difference is that in the past such contingency funds were openly appropriated by Congress. The American public knew how much money was involved, though not how it was to be used. When it comes to modern day intelligence spending, however, even this modified form of constitutional compliance is missing.

Moving Beyond Secrecy to Deception

But it gets worse. Because CIA funds are concealed within the appropriations for the Department of Defense, the defense budget is artificially inflated by the hidden CIA dollars. This means that the publicly reported defense budget is deliberately inaccurate in its overall size and in some of its details.

Thus, CIA budgetary practices have moved beyond simple budget secrecy to active misrepresentation, something that never existed in U.S. government budgets prior to the cold war. Whatever the constitutional requirement for a "regular statement and account" means, it cannot possibly permit a false statement and account of the defense budget.

In fairness, the CIA is not solely responsible for this policy. In fact, CIA officials who violate the Constitution, one might say, are simply obeying the law, especially the Central Intelligence Agency Act of 1949.

Today, Congressional "conservatives" -- whose conservatism apparently does not extend to a rigorous defense of the U.S. Constitution -- oppose declassification even of the annual aggregate total of a dozen different intelligence agency budgets. (The independent-minded Senator Arlen Specter is perhaps the only Republican exception to this rule.)

It was over congressional objections that the intelligence budget total was disclosed for the first time as the result of a Freedom of Information Act lawsuit in 1997 ($26.6. billion) and 1998 ($26.7 billion). Since 1999 it has remained classified.

"From Time to Time" Cannot Mean "Never"

Still, it is the CIA that is the most egregious violator of the Constitutional accounting requirement. Recently, CIA officials refused to disclose even 50 year old intelligence budget totals, claiming that to do so "could reasonably be expected to cause damage to national security."

This is of course national security nonsense. (As an aside, it might be noted that some historical budget information has been declassified, harmlessly and evidently without these officials' knowledge or permission.)

More importantly, however, the CIA's policy of permanent budget secrecy is in gross violation of the Constitutional requirement to publish an account of the budget "from time to time." Whatever "from time to time" means, it clearly does not mean "never."

There may not be a large number of Americans who are eager to know exactly how much money is in the budget of the CIA and other intelligence agencies. A 1998 Pentagon survey suggested that a slight majority of the public actually favors intelligence budget secrecy. Nevertheless, every American ought to be concerned at the CIA's ability to effectively erase a line of the U.S. Constitution.

If the government is free to simply disregard the requirement to periodically publish "a regular statement and account" of its expenditures, then the Constitution is little more than a piece a paper at the National Archives, "patriotism" means nothing other than rooting for the home team, and the rights and liberties that Americans enjoy have no firm foundation.

A recent CIA Inspector General review found that there was no "official misconduct" involved in CIA's decision to withhold 50 year old budget data. Such information, it appears, is properly classified, i.e. classified according to established procedures. See:

Therefore it seems that the only remaining way to comply with the U.S. Constitution is through an unauthorized disclosure of "properly classified" budget information. That would require patriotism of an unusual order.

RECALLING THE U.S.S. PUEBLO

The current standoff between the U.S. and China over the fate of a downed U.S. Navy EP-3 spy plane provides an occasion to recall the 1968 capture of the U.S.S. Pueblo, an episode that has some similarities to the present situation, though hopefully not too many.

The Pueblo was a U.S. Navy intelligence vessel operating, the U.S. insisted, in international waters when it was surrounded by North Korean patrol boats and seized in January 1968. One crewman died in the takeover.

The converted cargo ship was packed with state of the art intelligence equipment and documentation. Although efforts were made to burn or destroy some of this material, enormous quantities of classified documents, radios and code machines were captured intact by the North Koreans.

The Pueblo's crew was held captive for month after month, while the parties argued over what had occurred, who was responsible, and what diplomatic or other response was appropriate. The 82 members of the crew and the body of the sailor who died were finally released eleven months later in December 1968.

The Pueblo itself was never returned. It remains on display today in Pyongyang, North Korea.

A 1969 Naval Court of Inquiry recommended that the Pueblo commander be charged with failing to properly train his crew to destroy classified material, and permitting classified material to fall into enemy hands. These and other charges were ultimately rejected on grounds that the crew had already suffered enough in captivity.

In April 1969, Congress passed a resolution stating that "no manned ship or plane of the Armed Forces of the United States should be sent into danger areas on an intelligence gathering mission without adequate protection against attack or capture by foreign armed forces." (House Resolution 204, April 17, 1969).

Many documents have now been declassified tracing the tense policy deliberations over the fate of the Pueblo in 1968. More than a hundred such documents were published last October in the U.S. State Department's Foreign Relations of the United States, 1964-1968, volume XXIX, Part 1. See documents 212 through 331 here:

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