SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 102
October 17, 2002

LITIGATION OVER 1947 INTELLIGENCE BUDGET RENEWED

A Federation of American Scientists lawsuit to compel declassification of the intelligence budget totals from 1947 and 1948 was refiled today in federal court, following a ten month procedural detour.

The continuing classification of such innocuous, archaic budget data exemplifies the mindlessness of much official secrecy, especially at the Central Intelligence Agency, which previously did declassify the 1997 and 1998 budget totals in response to similar litigation.

CIA's position in this case is particularly insolent given that a "statement and account" of "all" budget expenditures is the one category of executive branch information whose publication is guaranteed in the U.S. Constitution "from time to time." (Article 1, Sect. 9).

"The Director of Central Intelligence does not have the authority to extinguish a constitutional requirement," the FAS lawsuit suggests.

The lawsuit, filed under the Freedom of Information Act, argues that "CIA has taken an extreme position in this case that is far beyond the boundaries of reasonable disagreement over the requirements of national security."

Accordingly, the lawsuit asks the Court to issue a written finding that CIA personnel may "have acted arbitrarily or capriciously" in withholding the 1947-48 budget information. Such a finding would lay the foundation for a Special Counsel investigation and possible disciplinary action.

The text of the October 17 FAS complaint, Aftergood v. Central Intelligence Agency, is posted here:

MILITARY ROLE IN SNIPER HUNT CONFRONTS BARRIERS

Any assistance that the U.S. military can offer to expedite the capture of the Washington, DC-area sniper is undoubtedly warranted by the imminent threat to public safety and human life.

But that assistance, in the form of military surveillance aircraft, is already running up against longstanding legal and regulatory barriers to cooperation between law enforcement and the military.

The 1986 Department of Defense Directive 5525.5 dictates, for example, that "the needs of civilian law enforcement officials may be considered when scheduling routine training missions. This does not permit the planning or creation of missions or training for the primary purpose of aiding civilian law enforcement officials, and it does not permit conducting training or missions for the purpose of routinely collecting information about U.S. citizens."

Furthermore, according to the same directive, the Posse Comitatus Act of 1878 implies a prohibition on the "Use of military personnel for surveillance or pursuit of individuals...."

See DOD Directive 5525.5, "DoD Cooperation with Civilian Law Enforcement Officials," here:

The implications of (and exceptions to) the Posse Comitatus Act were carefully examined by Matthew Carlton Hammond in "The Posse Comitatus Act: A Principle in Need of Renewal," Washington University Law Quarterly, Summer 1997:

FINAL 9-11 JOINT INQUIRY HEARING

The final public hearing of the joint congressional intelligence committee inquiry into September 11 was held today, with a summary report by staff director Eleanor Hill followed by statements from DCI George Tenet, FBI Director Robert Mueller, and NSA Director Michael Hayden.

Prepared statements from the October 17 hearing are posted here:

HISTORY OF AERIAL ESPIONAGE

The history of "U.S. Aerial Espionage in the Cold War and Beyond" is introduced and documented by Jeffrey T. Richelson in a new National Security Archive reader here:

UPDATED LISTING OF TERRORIST ORGANIZATIONS

There are now 219 "groups, entities, and individuals" identified as terrorists by the U.S. Government and subject to financial sanctions and other restrictions.

An updated list was published by the U.S. State Department on October 11 and is posted here:

KYL ON AMENDING FISA

Sen. Jon Kyl spoke at length this week on the importance of "adding just three words" to the Foreign Intelligence Surveillance Act, which governs the surveillance and search of suspected foreign terrorists and spies in the United States.

His three words are "or foreign person," and they would permit the surveillance and search of suspected foreign terrorists who are not demonstrably sponsored by a foreign power. Sen. Kyl said that this revision would correct a deficiency that inhibited the monitoring of suspected terrorist Zacarias Moussaoui.

See his October 15 floor statement on "Amending the FISA Law" here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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