SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 38
May 6, 2003

INTELLIGENCE BUDGET SECRECY CHALLENGED

The total amount of intelligence spending for 2002 should be declassified over the objections of the Central Intelligence Agency, a federal court was told May 5 in a Freedom of Information Act lawsuit sponsored by the Federation of American Scientists.

The question of whether or not to publish the intelligence budget total is an archetypal controversy in government secrecy policy that has persisted for decades. Annual budget disclosure used to be a valued goal of the intelligence oversight committees in Congress, and the budget total actually was released in response to previous litigation in 1997 and 1998.

But the latest lawsuit still manages to say something new on the subject, beginning with the observation that the Department of Energy (DOE), which forms part of the U.S. intelligence community, has an unclassified budget for intelligence spending.

"DOE routinely does what Director of Central Intelligence George J. Tenet said is not done, could not be done and should not be done: It publishes and describes the purposes of its annual agency-level appropriation for intelligence," according to the newly filed FAS motion for summary judgment:

Bryan Siebert, the former Director of the DOE Office of Nuclear and National Security Information, stated in a sworn declaration that "the fact that the DOE intelligence budget figure is unclassified has not impeded the conduct of classified DOE intelligence programs or led to their exposure." It stands to reason, he affirmed, that the same thing must be true of the larger and less programmatically coherent government-wide figure.

John Pike of GlobalSecurity.org, who authored a 1996 analysis of intelligence spending that was cited by DCI Tenet earlier in the case, provided a declaration to rebut the notion that disclosure of the overall budget figure could threaten national security.

Mr. Pike noted that the budget total was itself the sum of three independently generated budget aggregations (NFIP, JMIP, and TIARA), each of which is the outcome of numerous individual administrative decisions that could not be replicated from afar. "It is not possible to 'reverse engineer' the budget total in order to derive information about its specific component parts."

In my own declaration, I pointed to CIA's continued classification of intelligence budget totals from 1947 and 1948 as evidence of bad faith on the part of the Agency.

"There is no plausible national security construct that both permits declassification of the 1997 and 1998 budget totals and prohibits declassification of the 1947 and 1948 budget totals. It is evident that CIA is improperly withholding total budget data for reasons other than national security and the protection of intelligence sources and methods."

Last month, CIA asked the court's permission to provide a classified declaration from DCI Tenet for the court's in camera review, to supplement the DCI's 28 page unclassified declaration that was filed on April 4.

We opposed that request, contending that "DCI Tenet has squandered his credibility on this subject by asserting material false statements under oath, by presenting evidence in a tendentious and misleading manner, and by other acts of bad faith."

A reply from CIA is due on June 6. The case, Steven Aftergood v. Central Intelligence Agency, is pending before the Honorable Ricardo M. Urbina in D.C. District Court.

SENATE RELEASES MCCARTHY TRANSCRIPTS

Sealed transcripts of closed hearings that were held before Senator Joseph R. McCarthy's subcommittee on investigations in 1953 were released by the Senate Governmental Affairs Committee on May 5.

The hearings, which investigated allegations of Communist espionage and subversion, became notorious for their hostile interrogations and abuse of process, culminating in the censure of Senator McCarthy by the Senate in 1954.

"History is a powerful teacher, and these documents offer many lessons on the importance of open government, due process and respect for individual rights," said Sen. Carl Levin (D-MI), former chairman, now ranking member, of the Governmental Affairs Committee. "Democracy means people have a right to express peaceful dissent from the prevailing view of the government, and the government is obligated to permit and defend that right."

A press release announcing the publication of the hearing transcripts, with a link to the voluminous documents themselves, may be found here:

The transcripts naturally need to be read judiciously, as when one Paul Crouch tells Senator McCarthy that there is "no [doubt], none whatever" that J. Robert Oppenheimer was a member of the Communist party (in volume 3). Amid doubts about his own credibility, Mr. Crouch was not asked to testify at Oppenheimer's security hearing the following year, though his allegations formed part of the investigative background of the case.

MORE ON NSA FOIA EXEMPTION

A proposed exemption from the Freedom of Information Act for "operational files" of the National Security Agency could preclude public access to a host of valuable historical documents such as the VENONA intercepts of Soviet communications that were released with huge fanfare several years ago.

The proposal is included in a draft of the 2004 Defense Authorization Act that is before the Senate Armed Services Committee this week.

The National Security Archive has assembled a collection of related materials, including a detailed critique of the pending proposal by the Archive's General Counsel, Meredith Fuchs, which is available here:

GITMO KIDS

Following reports that there are several juveniles and elderly persons among the hundreds of suspected Taliban and Al Qa'ida detainees being held at the U.S. military base in Guantanamo Bay, Cuba, government officials said that a dozen or more prisoners may be released shortly.

U.S. News and World Report this week described a letter from Secretary of State Colin Powell to Defense Secretary Donald Rumsfeld complaining that the Guantanamo detainees include "one 13-year-old, one 14-year-old, two 15-year-olds, one 16-year-old, an 88-year-old, and a 98-year-old."

See "Terror's cellblock" by Bruce B. Auster and Kevin Whitelaw in U.S. News, May 12:

The matter was viewed with disgust by Jonathan Turley in "Appetite for Authoritarianism Spawns an American Gulag," Los Angeles Times, May 2:

"The goal is to reach a final determination on all the people who are down there," said State Department spokesman Richard Boucher on May 5.

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

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