Intelligent design?

From the Summer 2011 issue of The News Media & The Law, page 14.

The National Archives and Records Administration in June officially released a complete, unredacted version of the Pentagon Papers, 40 years after they were partially leaked to the press. According to NARA, approximately 34 percent of the records chronicling roughly 20 years of U.S. political and military involvement in Vietnam from the 1940s to the 1960s are now available to the public for the first time.

These documents, which were at the center of the U.S. Supreme Court’s 1971 landmark prior restraint decision in New York Times Co. v. United States, stand as a testament to the dangers of excessive government secrecy where citizens remain unaware of the true nature and effectiveness of military, intelligence and political operations conducted in their name.

Fast forward to the present. While the phrase has been eschewed by the Obama administration, the so-called “Global War on Terror” will soon mark its 10th anniversary. During this time, the media have helped to shed light on myriad controversial U.S. government activities including extraordinary renditions and CIA “black sites,” enhanced interrogation techniques arguably amounting to torture, Abu Ghraib prisoner abuses and National Security Agency domestic surveillance programs.

If not for confidential sources, whistleblowers and document leaks, these present-day controversies, much like the Pentagon Papers case, may have never surfaced.

As one would suspect, federal Freedom of Information Act requests to U.S. intelligence agencies regarding clandestine operations will almost certainly be denied. Exemption 1 to FOIA specifically exempts classified records from mandatory disclosure, and other federal laws allow agencies to withhold records reflecting intelligence sources and methods and those detailing agency functions and makeup.

Additionally, courts have upheld the authority of intelligence agencies to send “Glomar” responses to requesters. Named after a ship built for the CIA operation to covertly recover a sunken Russian submarine during the Cold War, a “Glomar” response is when an agency will neither confirm nor deny the existence of a record rather than tell the requester that no responsive records exist or that any responsive records are otherwise exempt from disclosure.

The incident eventually resulted in a FOIA lawsuit over access to presumed CIA records regarding the agency’s attempts to prevent media coverage of the operation.

The CIA refused to confirm or deny the existence of any responsive records. The underpinning rationale of a “Glomar” response is that merely acknowledging or denying the existence of a particular record could pose a threat to national security.

But federal law goes one step further when intelligence agency “operational files” are at issue. In those cases, agencies such as the CIA are, in many instances, relieved of the threshold requirement to search and review records in response to FOIA requests.

Normal FOIA procedure requires an agency to conduct these initial steps and then determine what information, if any, should be disclosed. For operational files, intelligence agencies can in many cases essentially disregard a request.

Some argue that this additional layer of insularity for operational files is often abused and counterproductive. Nate Jones, the Freedom of Information Act Coordinator at the National Security Archive, an independent research institute at The George Washington University, said operational file exemptions are an “egregious affront” to FOIA, describing the exclusion as a CIA FOIA processor’s “first line of defense.” Jones said in his experience CIA officials broadly apply the exclusion, never searching for responsive records and simply close the FOIA request soon thereafter.

CIA response letters citing operational file exemptions to FOIA will simply state — without confirming or denying any responsive records even exist — that such records would be contained in operational files. Therefore, under federal law it is under no obligation to search, review, publish or disclose such records pursuant to FOIA, the response said.

It essentially amounts to a “no records” response paired with a “Glomar.”

This is particularly frustrating to historical research projects like the National Security Archive. Jones said not knowing whether particular records even exist precludes the ability to ever single it out and challenge the need to keep it secret through administrative FOIA appeals and litigation or through alternative means such as the Mandatory Declassification Review process.

The CIA Information Act of 1984

Given the clandestine nature of many intelligence agency activities, it is not surprising that many FOIA requests directed to such agencies are denied.

According to annual FOIA reports, in processing 2,989 requests during fiscal year 2010, the CIA applied the classified records exemption 1,105 times and relied on exemptions covering sources and methods and agency functions and makeup 1,525 times. Of the 1,601 CIA denials based upon the application of exemptions, 737 were complete denials while 864 were partial denials; 443 requests were granted in full.

Similarly, in processing 1,065 requests during the same time period, the National Security Agency applied FOIA Exemption 1 a total of 415 times and the sources and methods and agency function exemptions 959 times. The NSA used exemptions to FOIA to fully deny 353 requests and partially deny 251. It granted 49 requests in full.

These numbers indicate that roughly half of all exemption-based CIA (46 percent) and NSA (58 percent) withholdings for fiscal year 2010 were complete denials.

Factoring in full grants, the CIA withheld documents in their entirety based on national security-related exemptions 36 percent of the time, while the NSA did so 54 percent of the time.

That the most sensitive national security information can be found in intelligence operational files was one of the stated reasons Congress passed the CIA Information Act of 1984. A U.S. House of Representatives report accompanying the law said the purpose of the proposed legislation was to: “relieve the Central Intelligence Agency from an unproductive Freedom of Information Act (FOIA) requirement to search and review certain CIA operational files consisting of records which, after line-by-line security review, almost invariably prove not to be releasable;” to enhance the ability of the CIA to respond more efficiently to other FOIA requests for documents that may be releasable; and to provide “additional assurance of confidentiality to sources who assist the United States by cooperating with the Central Intelligence Agency” by reducing the chances of inadvertent disclosure.

The act provides that, in coordination with the director of national intelligence, the director of the CIA may exempt “operational files” from any obligations under FOIA to publish or disclose information, along with any related search or review requirements that would normally incept upon receipt of a FOIA request.

The act defines CIA “operational files” as files: within National Clandestine Service that “document the conduct of foreign intelligence or counterintelligence operations or intelligence security liaison arrangements or information exchanges with foreign governments or their intelligence or security services; within the office of the Directorate of Science and Technology that “document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems; and within the Office of Personnel Security that “document investigations conducted to determine the suitability of potential foreign intelligence or counterintelligence sources.

Operational file FOIA exclusions similar to those found in the act have subsequently been enacted to cover files within the NSA, the National Geospatial-Intelligence Agency (along with its predecessor agency, the National Photographic Interpretation Center), the National Reconnaissance Office, the Defense Intelligence Agency, the Office of the Director of National Intelligence and the Office of the National Counterintelligence Executive.

Jones questioned the purported bases for enacting the law. He said the CIA continues to struggle with backlogs and the act has done little to streamline FOIA administration. “Congress got hoodwinked by the CIA,” Jones said.

According to the CIA’s 2011 Chief FOIA Officer Report, the agency’s backlog increased during the last annual reporting period going from 592 in fiscal year 2009 to 715 in fiscal year 2010.

The Chief FOIA Officer Report attributes the backlog increase to “the effect of escalating and competing requirements on finite and limited resources.” Between fiscal year 2009 and fiscal year 2010 the number of requests the CIA received increased from 2,863 to 3,094, while the number of requests processed decreased from 3,112 to 2,989. Records also show backlogs of outstanding FOIA requests for fiscal years 2008 and 2007 stood at 940 and 703, respectively.

Exceptions to the act

The act, as well as its sister laws covering other intelligence agencies, provides some limitations that require the CIA to conduct operational file search and review in certain instances.

These procedures are required when individuals make requests for records about themselves either under FOIA or the Privacy Act of 1974, when the fact that a covert activity did or did not occur is subject to disclosure under FOIA or the specific subject matter of a request has been the target of an official investigation.

Further, files not designated for exemption as operational files that “contain information derived from or disseminated from exempted operational files” are still subject to search and review as well as exempt records from operational files that have been disseminated to or referenced in non-exempt files and were later returned to the exempt operational file for sole retention.

Adding to that, the definition of “operational files” under the act specifically excludes files that are the “sole repository of disseminated intelligence.”

The act’s exceptions, particularly the exception for formal investigations into illegal activities or other improprieties, have been the subject of a handful of FOIA lawsuits.

In Sullivan v. CIA, the U.S. Court of Appeals in Boston (1st Cir.) held that the CIA was not required to search its operational files in connection with a request for documents related to Geoffrey Sullivan, the requester’s father, and Alexander Rorke.

The two men, who were last seen in Cozumel, Mexico, in 1963, were believed to be involved in CIA-sponsored propaganda drops over Cuba. After a CIA review of non-operational files, which did not produce any responsive documents, Sullivan sued to compel the CIA to search and review its operational files.

The appeals court rejected Sullivan’s arguments that any exceptions to the act applied.

First, the court rejected Sullivan’s argument that the first-party request exception can be invoked by next of kin. Examining the applicability of the second exception regarding “special” activities whose existence must be acknowledged under FOIA, the court found that “special” meant both a specific and a secret activity.

It went on to reject Sullivan’s arguments that general public knowledge about declassified U.S. attempts to destabilize the Cuban regime serve to lift the entire veil of secrecy over CIA operations related to Cuba. Because she could not provide evidence that her father or Rorke were specifically involved in any specific, declassified operations, this exception failed too.

Similarly, the court also rejected application of the third exemption regarding official investigations.

The court found that Senate committee inquiries into possible relationships between the Kennedy assassination and U.S. operations in Cuba, of which certain CIA operations were also generally discussed, did not allow Sullivan to “bootstrap” her specific request to the inquiry to overcome the operational files exemption.

Further, the purpose of the inquiry was not to investigate illegal activity or impropriety as required under the exception, but rather to simply examine a possible relationship between the events, the court held.

Additional cases have given similar strict interpretation to the act’s investigation exception. In Davy v. CIA, the U.S. District Court for the District of Columbia held that a request for documents related to CIA actions labeled “Project QKENCHANT,” a CIA project regarding security procedures for meeting with non-agency personnel to discuss activities, and “Project “ZRCLIFF,” the project code name for a CIA proprietary airline, did not mandate a search of CIA operational files.

Davy maintained that CIA files regarding these projects would confirm that Clay Shaw, a New Orleans businessman at the center of the Kennedy assassination investigation, had connections to CIA operations in Cuba.

The court rejected Davy’s claims that, because Clay Shaw was a subject of investigations by the Warren Commission, the Department of Justice, the CIA and Congressional committees, the investigation exemption applied. Much like in Sullivan, the court found that neither “Project QKENCHANT” nor “Project “ZRCLIFF,” which were the subject of Davy’s FOIA request, were ever a specific line of inquiry in any formal investigation.

A similar conclusion was reached by the same court five years later in Hall v. CIA when the court found that the requirement in the law that only congressional intelligence committees qualify under as an exception under the act, as opposed to other non-intelligence committees, permitted the CIA to refuse operational file searches for information on Vietnam War POWs and MIAs.

However, some courts have required the CIA to search and review operational files under the investigations exception. In Morley v. CIA, the U.S. Court of Appeals for the District of Columbia held that the specificity requirement under the investigations exception “is satisfied where the investigating committee would have deemed the records at issue to be central to its inquiry.”

Morley requested records related to the Kennedy assassination, particularly those of CIA officer George Joannides, the case officer heading the agency’s anti-Castro Directorio Revolucionario Estudantil, and the group’s possible contacts with Lee Harvey Oswald.

The court found that, because the Directorio Revolucionario Estudantil activities were directly investigated by congressional intelligence committees, they therefore were distinguishable from the “remote” relationships proffered in Sullivan.

Following the court’s ruling, the CIA searched and reviewed its operational files and in 2008 turned over an additional 293 documents to Morley; 29 were released in full, while the remaining 264 were partial releases.

In 2005, the U.S. District Court for the Southern District of New York reached a similar conclusion in ACLU v. Dep’t of Defense, regarding CIA records detailing Iraqi detainee abuses as that matter had been the subject of a CIA Inspector General investigation.

The U.S. District Court for the District of Columbia has also held that the National Reconnaissance Office must search its operational files under the “disseminated intelligence” exemption when operational file records are disseminated to different intelligence offices and others such as the President and Congress.

In Aftergood v. Nat’l Reconnaissance Office, the U.S. District Court for the District of Columbia held that the NRO must conduct a search of its operational files in connections with a 2005 request by Steven Aftergood. Aftergood is a member of the Federation of American Scientists and author of Secrecy News, a publication of the organization’s Project on Government Secrecy.

Aftergood sought access to all unclassified portions of the NRO Congressional Budget Justification Book for fiscal year 2006, a document compiling budget estimates and justifications for the office.

Ultimately, the court found that, because the records at issue were disseminated to the Director of National Intelligence and included in the president’s budget proposal to Congress, the NRO could not claim the operational files exemption.

Aftergood estimated that, after exemption review, the NRO ultimately released 10 to 20 percent of the report.

“Because so little information about NRO is available, the release did add qualitatively to public knowledge of the agency. It shed some light on organizational structure, current initiatives, contractor relationships, and so on,” said Aftergood, noting also that “one of the most interesting portions of the document was actually the glossary at the end, which included some intriguing and unfamiliar terms.”

Aftergood echoes Jones’ belief that agencies have stretched the operational files exemption too far saying “over time, some agencies have attempted to use the operational files concept effectively as a new exemption, in order to take otherwise releasable records beyond the reach of FOIA.”

While Aftergood said he believes that the NRO tried to abuse the exemption in connection with his request, to its credit, he said the agency has also released similar budget information every year since he filed his lawsuit in 2005.

Going forward

If the CIA Information Act, along with the similar exclusions that apply to other intelligence agencies, was initially passed with the intent to make FOIA processing more efficient, it is clear from cases like Morley and Aftergood that, despite some inherent efficiencies, releasable documents are being swept up in its application.

Jones said he believes such a black-and-white system works against the principles of open government and leaves the public less informed. The National Security Archive “thinks every document should be reviewed based on content” and that accessibility should “not depend upon where the record exists,” Jones said.