FAS Sues CIA for Intelligence Budget Disclosure

by FAS

June 1997

The Federation of American Scientists filed a Freedom of Information Act lawsuit today against the Central Intelligence Agency to compel the disclosure of the total intelligence budget.

The lawsuit cited 1996 Congressional testimony by then-Director of Central Intelligence John Deutch that "the President is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and not, in itself, harm intelligence activities."

In apparent defiance of the President's views, and in violation of the Freedom of Information Act, the CIA has refused to disclose the budget total. Meanwhile, a Congressional amendment to require publication of the budget total was rejected by the House last year by a vote of 176- 248.

"Budget secrecy today illustrates both the corruption of CIA information policy and the inadequacy of Congressional oversight," said Steven Aftergood, director of the FAS Project on Government Secrecy and the plaintiff in the FOIA lawsuit.

"Neither CIA nor Congress has been able to shake this budget number loose-- so we are going to," Aftergood said.

FAS is represented in the FOIA lawsuit by Kate Martin, director of the Center for National Security Studies (tel. 202-994-7060).

Rep. John Conyers (D-MI) has recently introduced a bill (HR 753) that would mandate publication of the total intelligence budget request each year, as well as the amountn appropriated. (Contact: Carl LeVan, 202-225-5126).

A copy of the FAS FOIA complaint follows.

(The response to the suit follows, and the responses to each individual point are also included in parenthesis after each point.) ------------------------------------------------------------------------

IN THE STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEVEN AFTERGOOD on behalf of the FEDERATION OF AMERICAN SCIENTISTS 307 Massachusetts Avenue, NE Washington, DC 20002 Plaintiff

v.

CENTRAL INTELLIGENCE AGENCY Washington, DC 20505 Defendant.

CASE NUMBER 1:97CV01096 JUDGE: Thomas F. Hogan DECK TYPE: FOIA DATE STAMP: 05/19/97

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE FREEDOM OF INFORMATION ACT

1. Plaintiff Steven Aftergood, on behalf of the Federation of American Scientists, seeks release of the total budget appropriation for intelligence for fiscal year 1997 under the Freedom of Information Act. The CIA has refused to release the total intelligence budget figure to plaintiff on the grounds that the figure is properly classified and therefore exempt from release under the Act. However, President Clinton has concluded that this information does not meet the standards for classification. Thus, the CIA's refusal to release the total intelligence budget figure is in violation of the law. (1. The first sentence of this paragraph contains plaintiff's characterization of his action to which no answer is required, but insofar as an answer may be deemed to be required, deny. Admit second sentence. Deny third and fourth sentences.)

2. Information is exempt from disclosure under (b)(1) of the Freedom of Information Act only if it is properly classified pursuant to executive order. President Clinton's Executive Order 12958 states that information may be classified only if its disclosure "reasonably could be expected to result in damage to the national security," sec. 1.2(a)(4). The Executive Order also provides that "if there is significant doubt about the need to classify information, it shall not be classified," sec.1.2(b). (2. The first sentence of this paragraph contains a conclusion of law and not an averment of fact to which an answer is required, but insofar as an answer may be deemed to be required, deny. Admit second and third sentences.)

3. On April 23, 1996, President Clinton's press secretary wrote that the President was announcing "several significant reforms for the Intelligence Community .... [that] build on the recommendations made in the Brown Commission Report on the Roles and Capabilities of the Intelligence Community." The Press Secretary stated that "reflecting the President's determination to promote openness in the Intelligence Community, he has authorized Congress to make public the total appropriation-- the bottom line figure -- for intelligence at the time the appropriations conference report is approved by Congress." (3. Admit.)

4. The next day, April 24, 1996, then Director of Central Intelligence, John Deutch explained to the Senate Select Committee on Intelligence that: "the President is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and will not, in itself, harm intelligence activities." (4. Deny, except to admit that the next day, April 24, 1996, then Director of Central Intelligence, John Deutch explained to the Senate Select Committee on Intelligence that: "the President is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and not, in itself, harm intelligence activities.")

5. The CIA's refusal to release this amount violates the Freedom of Information Act. (5. Deny.)

JURISDICTION AND VENUE

6. This Court has jurisdiction over this action pursuant to the Freedom of Information Act, 5 U.S.C. sec.552(a)(4)(B), the Administrative Procedure Act, 5 U.S.C. sec 701 et seq., and 28 U.S.C. sec. 1331 and 1361. (6. This paragraph contains conclusions of law and not averments of fact to which an answer is required, but insofar as an answer may be deemed to be required, deny.)

7. Venue lies in this district under 5 U.S.C. sec. 552(a)(4)(B). (7. This paragraph contains conclusions of law and not averments of fact to which an answer is required, but insofar as an answer may be deemed to be required, deny.)

PARTIES

8. The Federation of American Scientists is a fifty-two year old research organization concerned with national security policy. Plaintiff Steven Aftergood is director of the Federation's project on Government Secrecy and writes the "Secrecy and Government Bulletin" published monthly by the Federation. The Bulletin is published to challenge excessive government secrecy and to promote public oversight and free exchange in science, technology, defense, and intelligence. (8. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph.)

9. Defendant Central Intelligence Agency is an agency of the United States government which has possession of the documents requested by plaintiff under the Freedom of Information Act. (9. Admit.)

STATEMENT OF THE CASE

10. By letter dated November 12, 1996, plaintiff Aftergood, on behalf of the Federation of American Scientists, pursuant to the Freedom of Information Act, requested a copy of documents indicating the total budget appropriation for intelligence for fiscal year 1997 from the CIA. (10-11. Admit.)

11. By letter dated December 4, 1996, the CIA refused to release the requested information to the plaintiff asserting that it was exempt from disclosure under section (b)(1) of the FOIA exempting properly classified information from release and under section (b)(3) exempting intelligence sources and methods from release. (10-11. Admit.)

12. By letter dated December 12, 1996, plaintiff appealed the withholding of the information, pointing out that the requested information is not properly classified under Executive Order 12958 and that exemption (b)(3) also does not apply. (12. Deny, except to admit that by letter dated December 12, 1996, plaintiff appealed the withholding of the information, alleging that the requested information is not properly classified under Executive Order 12958 and that exemption (b)(3) also does not apply.)

13. By letter dated January 17, 1997, the CIA acknowledged receipt of the plaintiff's appeal. It corrected its earlier statement that the information was exempt from disclosure under (b)(3). The ClA's letter stated: "The information was denied on the basis of Freedom of Information Act exemption (b)(1) only. Freedom of Information Act exemption (b)(3) was inadvertently asserted as a basis for denial in our response of 4 December 1996." Plaintiff has received no further response to his appeal. (13. Admit first sentence. Deny second sentence, except to admit that the CIA changed its earlier statement that the information was exempt from disclosure under (b)(3). Admit third and fourth sentences.)

CAUSES OF ACTION

14. Plaintiff incorporates each allegation of paragraphs 1-13 as if fully set forth herein. (14. Defendant's answers to paragraphs 1 through 13 of the Complaint are hereby adopted by reference as though they were fully set forth herein.)

15. Defendant CIA's failure to release the requested information violates the Freedom of Information Act, 5 U.S.C. sec. 552. (15. Deny.)

PRAYER FOR RELIEF

WHEREFORE, plaintiff requests that the Court:

a. expedite the proceedings in this action;

b. declare that the defendant's refusal to produce the information requested by Mr. Aftergood is unlawful;

c. order defendant to release to plaintiff documents that indicate the total budget appropriation for intelligence for fiscal year 1997;

d. award plaintiff his costs and attorneys fees in this action; and

e. grant such other and further relief as the Court may deem just and proper.

Kate Martin D.C. Bar No. 949115 Center for National Security Studies 2130 H St reet , NW, Suite 701 Washington, DC 20037 (202) 994 7060

Counsel for plaintiff

May 19, 1997

FAS Intro: On June 20, 1997, the Justice Department filed its initial response to the FAS FOIA lawsuit seeking disclosure of the intelligence budget total. This largely pro forma document sets the stage for more substantial motions, to be filed later this year, seeking a judicial decision on the matter.

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UNITED STATES DISTRICT COURT<br> FOR THE DISTRICT OF COLUMBIA

STEVEN AFTERGOOD, )<br> )<br> Plaintiff, )<br> )<br> v. ) Case No. 97-1096 TFH<br> )<br> CENTRAL INTELLIGENCE AGENCY, )<br> )<br> Defendant. )<br> ________________________________________)

ANSWER

Defendant, by its undersigned attorneys, answers the Complaint as follows:

First Defense

The Complaint fails to state a claim upon which relief can be granted.

Second Defense

Defendant answers the numbered paragraphs of the Complaint as follows:

1. The first sentence of this paragraph contains plaintiff's characterization of his action to which no answer is required, but insofar as an answer may be deemed to be required, deny. Admit second sentence. Deny third and fourth sentences.

2. The first sentence of this paragraph contains a conclusion of law and not an averment of fact to which an answer is required, but insofar as an answer may be deemed to be required, deny. Admit second and third sentences.

3. Admit.

4. Deny, except to admit that the next day, April 24, 1996, then Director of Central Intelligence, John Deutch explained to the Senate Select Committee on Intelligence that: "the President is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and not, in itself, harm intelligence activities."

5. Deny.

6. This paragraph contains conclusions of law and not averments of fact to which an answer is required, but insofar as an answer may be deemed to be required, deny.

7. This paragraph contains conclusions of law and not averments of fact to which an answer is required, but insofar as an answer may be deemed to be required, deny.

8. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph.

9. Admit.

10-11. Admit.

12. Deny, except to admit that by letter dated December 12, 1996, plaintiff appealed the withholding of the information, alleging that the requested information is not properly classified under Executive Order 12958 and that exemption (b)(3) also does not apply.

13. Admit first sentence. Deny second sentence, except to admit that the CIA changed its earlier statement that the information was exempt from disclosure under (b)(3). Admit third and fourth sentences.

14. Defendant's answers to paragraphs 1 through 13 of the Complaint are hereby adopted by reference as though they were fully set forth herein.

15. Deny.

Defendant hereby specifically denies all of the allegations of the Complaint not hereinbefore otherwise answered.

Respectfully submitted,

ERIC H. HOLDER, JR., D.C. Bar #303115<br> United States Attorney

CHARLES F. FLYNN, D.C. Bar #63503<br> Assistant United States Attorney