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IMPACT OF THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT ON INTELLIGENCE ACTIVITIES
THURSDAY, APRIL 5, 1979
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON LEGISLATION,
Washington, D.C. The subcommittee met, pursuant to notice, at 9:32 a.m., in room H-405, the Capitol, Hon. Morgan F. Murphy (chairman of the subcommittee) presiding.
Present: Representatives Murphy, McClory, Ashbrook, and Whitehurst.
Also present: Michael J. O'Neil, chief counsel; Patrick G. Long, associate counsel; Bernard Raimo and Ira H. Goldman, committee counsel; Herb Romerstein and James O. Bush, professional staff members; Louise Dreuth, secretary; and William A. Leece, security director.
Mr. MURPHY. The meeting of the Subcommittee on Legislation of the Permanent Select Committee on Intelligence will come to order.
Since this committee's existence, it has been told the Freedom of Information and Privacy Acts have had a significant impact on the intelligence community. The committee has solicited a wealth of information about this subject from the CIA and other intelligence agencies. They consider that the application of those statutes raise grave implications for their continued operations. The committee feels that because the public may not understand the ramifications of the Freedom of Information Act upon intelligence operations, and because some of the suggestions for amending the act are far-reaching ones, that it should sponsor a public discussion of the particular influence that the Freedom of Information and Privacy Acts have on foreign intelligence and counterintelligence activities.
Our first witness today is as able a spokesman as the CIA can command, the distinguished Deputy Director of the Agency, Mr. Frank Carlucci.
Mr. Carlucci, we welcome you here today. Before we start, I will ask my colleague Mr. McClory if he would like to say a word.
Mr. McClory. Thank you very much, Mr. Chairman.
Yes, I do want to join in welcoming Mr. Carlucci to our meeting here this morning. I have had the privilege of meeting him before. I realize the subject we are dealing with today concerns itself with protecting the rights of individual Americans while at the same time
having account of the importance of our intelligence agencies—for we want to be certain we don't impair their effectiveness in any way.
It is a very delicate subject that we are dealing with, and, it seems to me, if the subject is only remotely connected with intelligence and does not impinge on civil rights, that we should consider at least some adjustment to the Freedom of Information Act to accommodate the intelligence agencies.
I know that Mr. Carlucci has a wealth of experience and is a very reputable professional. I know that his views are going to be extremely helpful to us in reaching a decision, and I want to join with the chairman in welcoming you here today.
Mr. Murphy. You may proceed, Mr. Carlucci.
STATEMENT OF MR. FRANK C. CARLUCCI, DEPUTY DIRECTOR OF
CENTRAL INTELLIGENCE; ACCOMPANIED BY: LYLE L. MILLER, DEPUTY LEGISLATIVE COUNSEL, CENTRAL INTELLIGENCE AGENCY; EARNEST MAYERFELD, CHIEF, FREEDOM OF INFORMATION AND PRIVACY LAW DIVISION, OFFICE OF THE GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY; GEORGE OWENS, CHIEF, INFORMATION AND PRIVACY STAFF, DIRECTORATE OF ADMINISTRATION, CENTRAL INTELLIGENCE AGENCY; AND ROBERT OWEN, INFORMATION REVIEW OFFICER, DIRECTORATE OF OPERATIONS, CENTRAL INTELLIGENCE AGENCY
Mr. CARLUCCI. Thank you, Mr. Chairman, members of the subcommittee. I am pleased to appear before you today to respond to your interest in the impact public disclosure statutes have had on the missions and functions of the Central Intelligence Agency. I intend to be as detailed as is possible in a public session, and I am, of course, prepared to go into classified matters in further detail in executive session.
At the outset, however, I want to point out that I am facing a real dilemma in appearing before you today on this subject. As my remarks will hopefully make clear, we do have problems in our country in keeping the authorized and legitimate activities of CIA secret. Some of these problems are real, but for others, such as the Freedom of Information Act, it is essentially a matter of perception. I will be telling you today why that is so. However, since we are dealing with perception, I know as clearly as I am sitting before you today that my statements before you will be used by hostile foreign intelligence services in an effort to convince potential agents that collaboration with CIA is indeed a foolhardy endeavor because inevitably their actions will be made public. Even so, I firmly believe that this open session can counteract such attempts if the end result is an increased capacity for our agency and its officers to deal with individuals and convincingly offer the protection from public disclosure which people who place their life or liberty in jeopardy demand.
I also want to make it clear that Admiral Turner and I support the general concept of openness in government. Indeed, Admiral Turner has been criticized for bringing too much openness to the Central Intelligence Agency. Under his leadership, approximately 150 finished
intelligence reports have been declassified per year and have been made available to the public through the Library of Congress. We have moved from the former "no comment” response and now routinely provide unclassified information in response to media inquiries. We are conducting a dialog with American academic specialists, and, increasingly, analytical personnel participate in the presentation of unclassified professional papers. In this way the substantive product of CIA is made available and contributes to an informed public without risking the disclosure of sensitive intelligence sources and methods.
Nor do we take issue with public disclosure statutes as vehicles for giving citizens greater access to the affairs of Government and assuring individuals that information on them which may legitimately be gathered by their Government is accurate and will not be abused.
What we do question seriously and thoughtfully, however, is the appropriateness of applying Government-wide public disclosure concepts to the authorized and legitimate activities of the Central Intelligence Agency which require secrecy. Indeed, the Congress itself has recently reaffirmed the uniqueness of our mission and the information derived from it by creating this oversight committee and its counterpart in the Senate. As a result, there now exists effective congressional oversight mechanisms to assure the accountability, legality and propriety of CIA activities which must remain secret. Admiral Turner and I, as congressionally approved Presidential appointees, insure that this committee is now and will continue to be supplied with whatever information you need in order that you may be satisfied the Central Intelligence Agency is following the law and in so doing exercising good judgment. You, not 20,000 FOIA requesters, foreign and American, are the proper people to conduct oversight.
It is, I submit, through these committees and their staffs, as well as the extensive executive branch review mechanisms, that oversight of this Nation's most sensitive activities ought to be undertaken.
It is, of course, for Congress to decide whether the best interests of the Nation are served by the application of general openness concepts to intelligence activities. It is our position that the best interests of the Nation are not so served. My central theme today, therefore, is that the total application of public disclosure statutes like FOIA to the CIA is seriously damaging our ability to do our job.
Before I make this case, allow me to make two other points: It is undeniable that under the current FOIA national security exemptions exist to protect our most vital information. The question is whether they are so perceived by those upon whom we depend to provide us, in absolute secrecy, that information.
The difficulty in protecting intelligence information arises from more than the FOTA. There have, for example, been leaks, we have had leaks, there have been cases of espionage, former Agency employees have written books without proper clearance beforehand and Phillip Agee and others of his group publish a bulletin dedicated to exposing our undercover employees and operations overseas. We are trying to deal with all of these issues.
Unfortunately, the Freedom of Information Act has emerged as a focal point of the oft heard allegation that the CIA cannot keep a secret, that is, cannot properly protect its information from public disclosure. It has, therefore, assumed a larger than life role as a symbol of this Nation's difficulty in keeping confidences inviolate. I do not agree that we cannot keep a confidence, but it is that perception held by many of those who would only enter into an arrangement with us on a confidential basis that is the crucial issue at hand.
In order to appreciate FOIA's impact on intelligence, it is important to clearly understand how we operate.
It is a misconception that our people spend most of their time moving around trying to pick up information in bars and photographing documents with secret cameras. Actually,
their mission is to establish what is essentially a contractual relationship with people in key positions who might otherwise be inaccessible to our diplomats overseas.
This is not an easy task nor is it quickly accomplished. The principal ingredient in these relationships is trust. To build a relationship which in many cases entails putting one's life and that of one's family in jeopardy to furnish information to the U.S. Government is a delicate and time-consuming task. Often, it takes years to convince an individual that we can protect him. Even then, the slightest problem can disrupt this relationship.
Recognize also that most of those who provide us with our most valuable and therefore most sensitive information come from societies where secrecy in both government and everyday life prevails. In these societies, often those suspected of anything less than total allegiance to the ruling party or clique may be summarily dismissed from their jobs, incarcerated, or even executed. In societies such as these, the concepts behind the FOIA are totally alien, frightening and indeed, contrary to all that they know. It is virtually impossible for most of them to understand the law itself much less why an organization such as the Central Intelligence Agency, wherein repose their most guarded secrets, should be subject to the act. It is difficult to convince them that someday they will not awaken to find in a U.S. newspaper or magazine information which they have furnished to the Agency which can be traced back to them.
Hardly a day goes by that there is not a sensational news article describing CIA information released under FOIA. The fact that much of it is repetitious, and most of it is history, is lost on our agent network.
Imagine the shackles being placed on the CIA case officer who must eventually convince the foreign agent to cooperate with us. The moment of truth for the case officer comes usually at the time of recruitment. The agent, while leaning towards cooperation, will demand that his information be protected. He wants absolute assurance that nothing will be given out which could even conceivably lead his own increasingly sophisticated counterintelligence people to appear at his doorstep. But the barrage of intelligence disclosure is, Mr. Chairman, making it harder and harder for our case officers to be convincing.
Although, when asked, we assure these individuals that their information is and will continue to be protected, we have on record numerous cases where our assurances have not sufficed. Foreign agents, some very important, have either refused to accept or have terminated a relationship on the grounds that, in their minds—and it is unimportant whether they are right or not—but in their minds the CIA is no longer able to absolutely guarantee that information which they provide the U.S. Government is sacrosanct. Again, we believe we can keep
it so, but it is, in the final analysis, their perception, not ours, which counts.
For example, a foreign intelligence source from a Communist country broke off a productive association with us specifically because of fear of the consequences of disclosure under the Freedom of Information Act. Subsequently he failed to use established means for reviving contact with the Agency despite the asset's renewed residence outside his native land. We can only assume that he is lost as a source of foreign intelligence.
There are other cases where agents have cited the FOIA as the reason for unwillingness to either cooperate initially, continue to cooperate, or cooperate as fully as in the past. How many cases of refusal to cooperate where no reason is given but if known would be for a similar reason I cannot say. I submit, however, that based upon the numerous cases of which we are aware, there are many more cases of sources who have discontinued a relationship or reduced their information flow based on their fear of disclosure. No one can quantify how much valuable information is lost as a result.
The FOIA also has had a negative effect on our relationships with foreign intelligence services. Recently, the chief of a major foreign intelligence service sat in my office and flatly stated that he could not fully cooperate as long as CIA is subject to the Freedom of Information Act. In another case, a major foreign intelligence service dispatched to Washington a high ranking official for the specific purpose of registering concern over the impact of the FOIA on our relationship. I strongly argued that we had adequate national security exemptions. While admitting awareness of these exemptions, this representative noted correctly that even information denied under the exemption was subject to later review and possible release by a U.S. court. While this fortunately has not yet happened, I was not in a position to guarantee that it will not. These are but two examples. The question I cannot answer is how many other services are now more careful as to what information they pass to our agency.
Finally, it is not only foreign sources of intelligence information that feel threatened by the FOIA's applicability to the Central Intelligence Agency. The FOIA has impacted adversely on our domestic contacts as well. As the committee is well aware, patriotic Americans volunteer information which is invaluable to the U.S. Government. Most of these Americans, for business and other reasons, insist that we protect the fact of their cooperation and the information which they provide.
Despite the universal concern over FOIA, most Americans continue to help us. But there are those who, in assessing the risk of disclosure, determine that it is not in their best interest to cooperate. They find their sense of patriotism frustrated by an obligation that their private interests not be jeopardized. For example, the head of a large American company and a former Cabinet member recently told me that he thought any company was out of its mind to cooperate with CIA as long as the provisions of the FOIA apply to it. I think he is absolutely wrong, but again, in the final analysis it is his perception, not ours, that counts. Unfortunately, he is not alone. Over the past few years, this dilemma has prompted other important U.S. sources of information to discontinue their cooperation with U.S. intelligence.