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New Legislation would give 15 Federal agencies the same level of secrecy now enjoyed by the CIA
Missing in the debate on the impending intelligence reorganization is the drastic effect it will have on Freedom of Information Act requests. By shifting the responsibility to protect "sources and methods" from the CIA Director to the new National Intelligence Director (NID), the blanket "sources and methods" protection will now extend to some fifteen agencies under the NID, including the Department of the Treasury, the Department of Energy, the FBI, and a dozen others.
The FBI, for example, does not enjoy the same level of "sources and methods" protection as the CIA. While the FBI will respond to Freedom of Information Act (FOIA) requests by releasing documents with the sources and methods used to gather the information redacted -- at least if you sue them -- the CIA simply refuses to confirm whether or not it has any information on the subject requested. And that is the end of your FOIA investigation. According to their "mosaic" theory, seemingly innocuous information can be pieced together to discover how the CIA has obtained it.
Technically, this is done through the (b)(3) exemption to the FOIA, which exempts information "specifically exempted by statute." In a landmark case, CIA v Sims, 471 U.S. 159 (1985), The National Security Act, which created CIA, was held to be a "witholding statute" for the purpose of the (b)(3) exemption. According to this act, The Director of Central Intelligence is required to protect sources and methods. Therefore the CIA may invoke the (b)(3) exemption whenever it can argue that its sources or methods could be compromised. Ever since Sims, the CIA has been able to apply the (b)(3) exemption to entire categories of information, making most of their files inaccessible to the public.
Both the House and Senate bills to reorganize the intelligence community put the responsibility to protect "sources and methods" on the NID, taking the responsibility away from the CIA Director. This will allow all 15 agencies under the NID to use the (b)(3) exemption, per Sims -- not just the CIA.
The agencies which will enjoy the blanket (b)(3) protection will include the following:
Air Force Intelligence Army Intelligence
Central Intelligence Agency Coast
Guard Intelligence Defense Intelligence Agency
Department of Energy
Department of Homeland Security
Department of State
Department of Treasury
Federal Bureau of Investigation
Marine Corps Intelligence
National Geospatial-Intelligence Agency
National Reconnaissance Office
National Security Agency Navy Intelligence
Expanding this exemption to all of these agencies will be a huge blow to the FOIA. And the worst part is, it's been done on the sly. Members of Congress may not have realized they were voting for government secrecy when they approved the intelligence reorganization bills. Even FOIA experts and open government advocates have failed to notice the shift in responsibility to protect sources and methods, from the DCI to the NID. Someone has to take note before it's too late.
Please contact your Congressional representatives, and advocates of open government, and urge them to oppose the expansion of the (b)(3) FOIA exemption hidden in the proposed intelligence reorganization bills, S.2845 and H.R. 10.
Paul Wolf is a law student at the University of the District of Columbia in Washington DC, and the plaintiff in Wolf v CIA and FBI, http://www.icdc.com/~paulwolf/gaitan/gaitanwolfvciaandfbi.htm .
References from http://thomas.loc.gov
1. "witholding statute" language cited in CIA v Sims to provide blanket (b)(3) exemption.
§ 102(d)(3) of the National Security Act of 1947,61 Stat. 498, 50 U.S.C. § 103(d)(3):
"the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."
2. National Security Act (2002), cited as 403-3(c)(7):
RESPONSIBILITIES OF THE DIRECTOR OF CENTRAL INTELLIGENCE SEC. 103. (50 U.S.C. 403-3] [...] (c) HEAD OF THE INTELLIGENCE COMMUNITY. - In the Director's capacity as head of the intelligence community, the Director shall - [...] (7) protect intelligence sources and methods from unauthorized disclosure; and
3. Senate bill: S.2845 National Intelligence Reform Act of 2004
TITLE I--NATIONAL INTELLIGENCE AUTHORITY
Subtitle B--Responsibilities and Authorities of National Intelligence Director [...] SEC. 112. RESPONSIBILITIES OF NATIONAL INTELLIGENCE DIRECTOR. (a) IN GENERAL- The National Intelligence Director shall-- [...] (11) protect intelligence sources and methods from unauthorized disclosure;
TITLE III--MODIFICATIONS OF LAWS RELATING TO INTELLIGENCE COMMUNITY MANAGEMENT
Subtitle A--Conforming and Other Amendments
SEC. 301. RESTATEMENT AND MODIFICATION OF BASIC AUTHORITY ON THE CENTRAL INTELLIGENCE AGENCY. [...] DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY (nothing about protecting sources and methods) [...]
4. House Bill: H.R. 10, 9/11 Commission Implementation Act
SEC. 1011. REORGANIZATION AND IMPROVEMENT OF MANAGEMENT OF INTELLIGENCE COMMUNITY. [...]
SEC. 102A. RESPONSIBILITIES AND AUTHORITIES OF THE NATIONAL I INTELLIGENCE DIRECTOR
(i) PROTECTION OF INTELLIGENCE SOURCES AND METHODS- (1) In order to protect intelligence sources and methods from unauthorized disclosure and, consistent with that protection, to maximize the dissemination of intelligence, the National Intelligence Director shall establish and implement guidelines for the intelligence community for the following purposes:
(A) Classification of information.
(B) Access to and dissemination of intelligence, both in final form and in the form when initially gathered.
(C) Preparation of intelligence products in such a way that source information is removed to allow for dissemination at the lowest level of classification possible or in unclassified form to the extent practicable. [...]
SEC. 104A. DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY
(a) DIRECTOR OF CENTRAL INTELLIGENCE AGENCY - There is a Director of the Central Intelligence Agency who shall be appointed by the President, by and with the advice and consent of the Senate. The Director shall be under the authority, direction, and control of the National Intelligence Director, except as otherwise determined by the President.
[nothing here about protecting sources and methods] [...]
SEC. 1013. JOINT PROCEDURES FOR OPERATIONAL COORDINATION BETWEEN DEPARTMENT OF DEFENSE AND CENTRAL INTELLIGENCE AGENCY.
(a) Development of Procedures- The National Intelligence Director, in consultation with the Secretary of Defense and the Director of the Central Intelligence Agency, shall develop joint procedures to be used by the Department of Defense and the Central Intelligence Agency to improve the coordination and deconfliction of operations that involve elements of both the Armed Forces and the Central Intelligence Agency consistent with national security and the protection of human intelligence sources and methods. Those procedures shall, at a minimum, provide the following: [...]
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