SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 16
February 15, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

A NEW MILESTONE IN INTELLIGENCE BUDGET DISCLOSURE

The Director of National Intelligence on Monday did what has never been done before: He disclosed the size of the coming year's budget request for the National Intelligence Program. For Fiscal Year 2012, "The aggregate amount of appropriations requested for the National Intelligence Program is $55 billion," according to a February 14 ODNI news release.

The new disclosure was required by the FY2010 intelligence authorization act (sec. 364). That legislation permitted an optional Presidential waiver of disclosure if necessary on national security grounds, but no waiver was asserted.

The disclosure of the budget request constitutes a new milestone in the "normalization" of intelligence budgeting. It sets the stage for a direct appropriation of intelligence funds, to replace the deliberately misleading practice of concealing intelligence funds within the defense budget. Doing so would also enable the Pentagon to (accurately) report a smaller total budget figure, a congenial prospect in tight budget times. (See "Intelligence Budget Disclosure: What Comes Next?", Secrecy News, November 1, 2010.)

The publication of the intelligence budget request is the culmination of many years of contentious debate and litigation on the subject.

Until quite recently, intelligence community leaders firmly opposed disclosure both of the intelligence budget total and of the total budget request. In response to a 1999 lawsuit brought by the Federation of American Scientists, Director of Central Intelligence George J. Tenet said that revealing the budget request would damage national security and compromise intelligence methods.

"I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to provide foreign intelligence services with a valuable benchmark for identifying and frustrating United States' intelligence programs," DCI Tenet wrote in a sworn declaration. The court upheld the classification of the requested information.

Was DCI Tenet wrong then about the damaging effects of disclosure? Is DNI Clapper wrong now to dismiss the significance of such damage? Could they somehow both be right?

From our perspective, Mr. Tenet was wrong in 1999, and the damage he foresaw would not have resulted from the disclosure that he prevented. (It turns out that the FOIA litigation process is not an effective way to contest such judgments.)

More fundamentally, the changing official assessment of the need to classify this information reflects the subjectivity that is inherent in the classification process, which makes it possible for two intelligence community leaders to reach opposing conclusions.

The same subjectivity prevails today. Thus, while the budget request for the National Intelligence Program (NIP) has now been disclosed, the request for the Military Intelligence Program (MIP) remains classified. We have requested release of this information.

The $55 billion requested for the NIP in FY 2012 represents a slight increase over the $53.1 billion appropriated for the NIP in FY 2010. The FY 2011 NIP appropriation has not yet been published. It is supposed to be disclosed at the end of the current fiscal year.

STATE SECRETS CASE CONCEALS ENVIRONMENTAL DAMAGE

The Central Intelligence Agency invoked the state secrets privilege in 2004 to cover up a case of environmental contamination at a CIA facility that caused illnesses to an Agency employee and his family, according to the employee, Kevin Shipp.

The episode was revealed in the Washington Post and the New York Times on February 11 after Mr. Shipp decided to go public with his account of the sealed case.

The story was elaborated yesterday in the Washington Post with the disclosure that the CIA also failed to respond to inquiries from Mr. Shipp's congressman, Rep. Frank Wolf, and that the congressional intelligence committees refused to respond to Mr. Shipp at all. See "Intelligence panels ignored CIA officer's pleas" by Jeff Stein, February 14:

By invoking the state secrets privilege, the government denied Mr. Shipp the basic right to argue his case and to seek a remedy. Although the Obama Administration's September 2009 policy on state secrets held out the promise that "credible allegations of government wrongdoing" in state secrets cases would be referred to agency Inspectors General, there is no record of any such referral by the Obama Administration or its predecessor.

Having been refused access to judicial review of his claims and with no response from congressional overseers, Mr. Shipp evidently chose to violate the court order sealing his case and the classification controls restricting its disclosure. He did not "leak" the information anonymously. Instead, he publicly revealed at least the outlines of his case. He may now pay an additional price for these violations. But he may also have reckoned that the state secrets privilege has no force in the court of public opinion.

DECLASSIFYING THE PENTAGON PAPERS, FINALLY

The National Declassification Center (NDC) at the National Archives will declassify the full text of the Pentagon Papers as well as the underlying documentation on which they are based, along with investigative material concerning the 1971 leak of the Papers by Daniel Ellsberg, the NDC said yesterday.

"One matter to keep in mind concerning the Pentagon Papers is that there is no complete record of the report in the public domain," the NDC blog said.

The Pentagon Papers Project "is both an interagency and intra-agency effort. NARA is working closely with its partners in the intelligence and defense communities, and the Department of Justice to ensure that we make available as much of this historical collection as possible."

But one wonders why a "project," complete with inter- and intra-agency coordination, is necessary at all to process defense policy records that were mostly made public 40 years ago. A better use of public resources would be to wave a wand and simply declare the records open.

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

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