June 29, 2000
Proposed Freedom of Information Act Exemption Would
Restrict Public Access to Crucial Human Rights Information
From: Center for National Security Studies, Federation of American Scientists, National Security Archive
Re: Freedom of Information Act Exemption for Defense Intelligence Agency Files in S. 2549, Defense Authorization Act.
This is to alert you to pending legislation that would dramatically reduce public access to valuable Defense Department records now released under the Freedom of Information Act, including important historical records on military and political developments abroad and important information about human rights abuses. There have been no public hearings on the legislation, which is based on inaccurate assumptions, as described below.
The Defense Authorization bill contains a provision that would exempt all “operational files” of the Defense Intelligence Agency from the Freedom of Information Act. (S. 2549, sec. 1045). At the moment, while some information in those files is classified, many documents are routinely released from such files, including from the Defense HUMINT Service at the DIA, and this provision would make such information unavailable in the future.
The bill proposes to extend the CIA Information Act of 1984, which exempted the files of the CIA’s Directorate of Operations from the FOIA, to files in the Defense Intelligence Agency. But none of the reasons supporting the enactment of the CIA Act apply to the files of the Defense Intelligence Agency. Unlike the CIA, the DIA does release many important operational records, which are either unclassified to begin with or have been declassified. In addition, the organization and functions of DIA are so different from the CIA, that it is unreasonable to simply extend the application of the CIA Information Act to the DIA.
The CIA Information Act exempts the files of the CIA Directorates of Operations and of Science and Technology from the search and review requirements of the Freedom of Information Act (sec. 701 of the National Security Act of 1947, 50 U.S.C. 431). The rationale for the CIA exemption was that no information was ever being released from these particular files at the CIA, so that the resources being devoted to searching and reviewing those particular files could be better spent on reviewing files from which information would be released. (See Select Committee on Intelligence, Report on Intelligence Information Act of 1983 S.Rep. No. 98-305 at 10.) The CIA Information Act was passed after extensive public hearing and debate, based on explicit representations by the agency that it would not result in additional information being withheld from the public. An extensive public record was made describing the specific files at the CIA exempted by the Act and the kinds of documents found in those files. Indeed, the CIA promised that by concentrating its FOIA and declassification resources on files other than the Directorate of Operations files, more information would actually end up being publicly released after passage of the Act.
But applying the CIA Information Act to the Defense Intelligence Agency, as proposed in sec. 1045, would have the opposite effect. It would result in a drastic reduction in the amount of information now being made public. First, it is not even clear what files in what divisions of the DIA would now be exempt from the FOIA. Instead of identifying specific directorates or divisions of DIA that would be exempted, the bill simply incorporates an extremely broad and vague definition of “operational files.” That definition, while taken from the CIA Information Act, applied only to files in specifically identified divisions of the CIA, namely, the Directorates of Operations, and of Science and Technology and specific files in the Office of Personnel Security. And the FOIA exemption for those CIA files was based on a publicly documented record concerning what kind of information was kept in those files and how information was moved from those files to other files both inside and outside the agency.
Here, no such public record has been made concerning which files in which offices of the DIA would be exempt and no record has been made concerning what kinds of information and documents are kept in the different offices of the DIA. What is clear is that the organization of DIA and its intelligence operations do not mirror those of the CIA in any way which would make it reasonable to simply apply the CIA Information Act to the DIA.
While neither the statutory nor report language addresses the issue, we have heard the FOIA exemption is intended for the files of the Defense HUMINT Service at the DIA. But there are fundamental differences between the intelligence operations of the CIA’s Directorate of Operations and the DIA’s Defense Humint Service, which make giving the DIA a special FOIA exemption unreasonable. The DIA includes the openly acknowledged defense attaches stationed in U.S. embassies around the world. Like Foreign Service officers at the embassies, the military attaches operate openly and collect and report foreign intelligence information. They do not operate undercover like overseas CIA employees. The Defense Humint Service also includes the humint divisions of the various armed services and unlike the Directorate of Operations at the CIA, collects information, as much or more through open sources, than through the kind of clandestine intelligence sources, which must be so closely guarded at the CIA. Thus, to provide a wholesale exemption from the FOIA for the operational files at the Defense Intelligence Agency would be the equivalent of exempting all the information gathered by the State Department’s Foreign Service and a radical weakening of the FOIA.
Indeed over the years, the DIA has routinely declassified and released hundreds of documents including intelligence reports, which have been important to public debate and the historical record. (Of course, sensitive information that must be protected for national security reasons is already exempt from the disclosure requirements of the FOIA.) The humint services of the armed services have also released substantial amounts of information. Such information includes for example:
important information about a retired Guatemalan military officer arrested in January, 2000 for the 1998 assassination of Bishop Juan José Gerardi in Guatemala. Nine declassified documents from the DIA spanning 1965-1988 concerning the officer may be viewed on the Web at: <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB25/index.htm>;
a 1992 unclassified intelligence report concerning statistical data on political violence in Peru;
a 1990 declassified intelligence report on events in Rwanda;
a 1990 partially declassified intelligence report on arms sales between Britain and Saudi Arabia;
a 1985 DIA Appraisal on China titled "Military Reform Campaign," released almost in its entirety; and
a 1978 declassified Weekly Intelligence Summary on events in Rhodesia.
(Copies of these documents may be obtained from the authors of this memo.) Section 1045 would, without any rationale or even any public justification, simply rewrite the Freedom of Information Act to exempt such information. It should be rejected.
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