If the judges do decide that the information should be released, then that means-at least to my way of thinking-that one of the branches of Government has reviewed what another branch of Government has done and decided that the classifying agency erred.

Senator THURMOND. You have remedy now; you can go in court if you do not get what you want.

Mr. McGEHEE. We have a remedy now; but, as I say, the practice under the act has been that the classifying agency submits affidavits saying that the information is properly classified. That, by and large, Senator, is it.

There is no

Senator THURMOND. Who do you want to decide? Do you want these Government people representing our nation to decide it? Or do you, an outside person, want to decide that?

Somebody has got to make the decision. Who should make it? Mr. McGEHEE. The decision will be made by the judges, sir.

Senator THURMOND. I don't have any other questions, Mr. Chair

man.

Senator ABOUREZK. Mr. McGehee, thank you very much for appearing and testifying here today. We appreciate your contribution. Mr. McGEHEE. Thank you, sir.

[The prepared statement of Mr. McGehee follows:]

PREPARED STATEMENT OF FIELDING M. McGEHEE III

My name is Fielding M. McGehee III, and I am the staff reporter for the Military Audit Project. MAP, as it is called, is a public interest research group that investigates military contracting and other links between corporation and the defense and intelligence community. The research that we do is used to develop litigation, to write news stories for publication in magazines and periodicals, and to aid other public interest organizations concerned with military issues.

MAP, which was founded in 1974, is sponsored by the Fund for Constitutional Government.

Our work is aided immeasurably by the Freedom of Information Act, 5 U.S.C. 552, but the act has also presented us with many problems, especially on the exemption 1 issue. Many of the problems are due to the nature of the beast we would not have difficulties with classification if we didn't request information on military issues.

We also tangle frequently with such agencies as the Defense Department, the State Department, the Central Intelligence Agency and the National Security Agency on a more fundamental, philosophical level.

We believe that the defense and intelligence establishment attaches security classifications to documents much more often than is necessary and that, in a democracy, access to information on defense issues is vital and should be much more open. We believe the risk of an occasional error in releasing possibly sensitive material is minimal when compared to the constant mockery to the concept of an informed citizenry caused by current classification practices.

We have been asked to testify before this subcommittee because one of our FOLA requests for information has resulted in the most hotly-contested court test of exemption 1 since Congress amended the act in 1974.

I'd like at this time to give you a brief history of MAP v. Turner.

In March 1975, the press reported that there had been an attempt made to raise a Russian submarine from the Pacific Ocean floor. The vessel used in Project Jennifer, which was the code name, was the Hughes Glomar Explorer, a ship allegedly owned by Summa Corporation.

All stories about the project cited CIA involvement and most indicated that the Government owned the Explorer. Several newspapers also carried sidebars about then-Director William Colby's efforts to keep a lid on release of the story. In April 1975, MAP filed an FOIA request with the CIA and the Defense

Department for the contracts and financial documents which discussed the financial arrangements between U.S. Government agencies, Summa and Global Marine, Inc., relating to the Hughes Glomar Explorer.

The request asked specifically for documents that reflected "sums paid by the Government of the United States or any agency thereof to any of the other entities named above, the profits earned by any of such other entities and any provisions for disposition by the Government of the United States to any of the other named entities."

The purpose of the request was simple: we believe that if the CIA can spend up to $350 million of taxpayers' money on such a project and then refuse to comment upon the expenditure even after the project has been uncovered and the international damage, if any, already done, the intelligence community will have a carte blanche license, with no accountability to the American people, for any expenditure or activity.

The agency response was not only to deny the request for documents, but to refuse either to confirm or deny the existence of the documents. Citing exemption 1 of the FOIA, CIA and Defense claimed that either a confirmation or denial of Government involvement in Project Jennifer would jeopardize national security.

Just a few months later, the Government made its first in a continuing series of retreats on its claim. The County of Los Angeles had attempted to collect property tax from the vessel, which was registered in the name of Summa, and the Government had filed suit to enjoin the levy. In public documents filed in the case, the Government claimed ownership of the Explorer, submitted substantial portions of contract documents and generally released a great deal of information about Project Jennifer.

As a result, government ownership of the ship, the nature of its once-secret mission, and the government's payment to Summa and Global Marine, were then of public knowledge.

Specifically, the documents revealed that Global Marine was the contractor, Summa (then Hughes Tool Co.) the agent, and the U.S. government the sponsor of contract #S-HU-0900. The contract said that Global Marine would be "the undisclosed agent" of the "sponsor" and should hold itself out as the owner of the "Deep Sea Mining Project"; that Global Marine and Summa were parties to a "Deep Sea Mining Agreement"; that the private corporations would "keep Sponsor from being identified as the true party in interest"; that Global Marine and Summa would be paid "for their services"; and that Global Marine would not reveal "any information whatsoever with respect to the Government's sponsorship of this contract, the department involved, or the work thereunder." Other court documents filed in the tax case stated that the operations of the Glomar Explorer were directed by the "senior U.S. government representative on board" and that the vessel "has never been used for exploration on the ocean floor for oil or other mineral deposits."

After the government released these documents, all that remained secretand all that we sought-were records that reflected how much the government spent, how much Summa and Global Marine profited, and whether there were cost overruns on the contract.

This information is not secret. The government, which controls the documents, found it convenient to release a large portion of them when it suited its purposes-when, pursuant to the contract, it sought to protect Summa from financial liability resulting from Project Jennifer. We believe that if the other information could have been useful to the tax case, it would have been released as well.

Incredibly, not only were the other documents not released, but even after the disclosures described above. Defense and CIA didn't budge from the position taken in the first response to our FOIA request. They continued to refuse acknowledgement of the documents' existence.

On December 15, 1975, MAP filed suit in U.S. District Court for the District of Columbia to compel production of the records.

Our belief is that exemption 1 does not apply to the documents. As to those which have been the subject of public discussion, such as the CIA-Glomar Explorer link, we believe that disclosure has already taken place and that the FOIA does not permit continued classification. We believe that other records discussing facts not in the public domain, such as the corporate profits realized from the transaction, can no longer be claimed to have security value and that classification is unwarranted.

The government's first response was to ask the court to dismiss the complaint. It also made a request to file two secret affidavits.

As it had responded to the FOIA request, the government claimed that national security would be damaged if it admitted that Defense or the CIA either had or did not have the documents.

In refusing the secret affidavits, U.S. District Judge Gerhard Gesell said that ex parte proceedings place the court "in an untenable position which ignores fundamental considerations of due process. Should the Court choose to proceed in camera in its discretion, the citizen is denied access to the papers and as a practical matter neither he nor his counsel have any opportunity to question the factual grounds on which exemption is based." The court also addressed the classification issue:

There is no indication of when or how the material sought was classified or of the timing, degree or extent of declassification or recent review. There is, moreover, no indication of any effort to separate classified and unclassified information within particular documents or files. Some documentation in the area has already been made public but no explanation is given why the papers released differ from other portions of the same or related papers being withheld. The nature of the security problem asserted is not explained even in broadest hypothetical terms... An adequate, complete affidavit justifying exemption shall be publicly filed reciting all pertinent facts short of those that reveal any fact which the defendants believe is protected by the exemption claimed."

Judge Gesell again criticized the government's blanket, unsubstantiated reliance upon exemption 1 when he denied a second motion to dismiss. "It is apparent that the withholding is based on a generalized policy decision made prior to plaintiffs' request by persons who had not read the documents and did not know their specific contents."

The court ordered the CIA and Defense to produce for in camera inspection the documents sought by MAP, a witness and an index.

But the government continued to refuse acknowledgement of the papers' existence in a third motion to dismiss.

However, in a report to the court filed May 6, 1976, the government retreated from its initial position a second time. Admitting involvement with the documents, the report said the records "which are the subject matter of this litigation will be kept intact pending the final determination of the litigation."

Following the denial of the third motion to dismiss, the government appealed to the U.S. Court of Appeals. The appellate court denied the petition and permitted the in camera proceeding, ordered by Judge Gesell, to go forward.

The appeals court also directed the lower court "to issue under seal any further orders requiring production or disclosure."

On October 18, Judge Gesell heard secret testimony and received eight secret affidavits. MAP attorneys were barred from the hearing.

On October 20, Judge Gesell dismissed the case "for reasons stated in camera” and filed a sealed opinion to be locked in the court safe along with documents submitted during the closed hearing.

MAP appealed, asking that the sealed evidence and opinion be released.

The U.S. Court of Appeals noted that the secrecy left MAP "in an extremely difficult position." Plaintiffs are "unaware of the basis for the decision" to dismiss the complaint, the court said, and are thus "unable to argue intelligently."

But instead of releasing the opinion, the appeals court said the documents were exempt from disclosure under the FOIA and that they had been properly classified under Executive Order 11652, the current order governing classification.1

MAP moved for reconsideration, arguing that the secret record had been the determinate factor in dismissing the case. The first three motions to dismiss, our attorneys noted, were denied because information submitted by the defendants on the public record had not satisfied their burden of proof.

Before a final decision on that motion was issued, the National Security Council "re-evaluated" the CIA's role in Project Jennifer, and the agency acknowledged ownership. The Justice Department then admitted to the existence of 128.000 documents relating to the vessel in government files.

This marked the third time the government has backpedaled on its original claims since MAP first filed its FOIA request.

1 See p. 433 of the appendix.

The Government now claims that the contents of the documents are classified, even if the fact of their existence no longer is.

At the request of the Justice Department, the appeals court remanded the case to Judge Gesell for further proceedings. At a June 28 hearing, however, Gesell removed himself from the case because, he said, he would not be able to accept the Government's representations.

Accusing the Justice Department of acting irresponsibly, Gesell said the defendants "made fun" of him during "a game that was played over a period of a year in front of me...

"I heard witnesses," Gesell told the government's lawyer. "I reviewed documents at your insistence. I made findings of fact. Then as soon as you face the realities of an appellate court, you change your position entirely and take a direct opposite position from what you have been constantly taking in front of me." Gesell refused to unseal the secret material pending the selection of another judge.

Since that time, Judge Joseph Waddy has been appointed as a replacement, but to date, no further hearings have been scheduled, and the court record remains sealed.

The problems we've faced since making our first FOIA request have plagued other exemption 1 cases as well. The track record of journalists, public interest groups and others in getting information that military and intelligence agencies don't want to release is miserable. And because the act has not served to force the disclosure of previously-classified information, the exemption has not been litigated very often.

The Records Management Division of the Adjutant General Center of the Department of the Army has prepared a report on the FOIA which summarizes all cases decided by Federal courts since the 1974 amendments took effect, through the end of 1976. According to this report and to several attorneys familiar with cases decided in 1977, there have been only six decisions since February 1975, when the amendments went into effect, involving cases in which exemption 1 was an issue.

In four of those cases, the focus of the decision was on other issues, or, as in MAP v. Turner, new facts came to light. Of those four, the party seeking the information won-or at least survived the government's attempts to dismiss the suit-in every case.

In Florence v. Defense Department, 415 F. Supp. 156 (D. D.C. 1976), for example, the plaintiff sought a bibliographical reference document which indexed technical reports prepared for the Pentagon. Most of the reports listed in the index were unclassified; the titles of the remaining reports were rewritten so that they too were unclassified.

However, the Defense Department claimed that the document was properly classified on the grounds that release of all titles in a single index might give a potential enemy useful information on the general thrust of defense research projects.

The U.S. District Court in Washington, D.C. did not determine whether the documents had been properly classified or whether it could be withheld under exemption 1.

Instead, the court cited another provision of the FOIA that directs an agency to separate "any reasonably segregable portion of a record" which may be released from that which is exempt.1 Saying that this was an "overriding provision in the act," District Judge June Green ordered Defense to release each entry of the index which was unclassified-in other words, the entire document.

In another case, Morton Halperin, former national security aide and current director of the Project on National Security and Civil Liberties, made an FOIA request for a transcript of a background press briefing. The briefing, held in December 1974 by then-Secretary of State Henry Kissinger, gave details on SALT talk negotiations with the Soviet Union.

Under the ground rules of the press conference, the 33 newsmen in attendance-none of whom had a security clearance-could not name Kissinger as the source of what they reported.

State released 57 of 59 pages of the transcript. The other two, State said, were being withheld under exemption 1, because release of the remarks, if attributed to Kissinger, would damage national security.

15 U.S.C. 552(b).

Halperin filed suit challenging the security tag placed on information that had already been publicly released.

On August 16, 1977, the U.S. Court of Appeals ruled in Halperin v. Dept. of State' that the use of a background briefing to shield the identity of the source of sensitive information had been improper.

The ruling also faulted State's handling of Halperin's request and said the Department had cited exemption 1 for a purpose that Congress did not contemplate. "Congress has provided no special FOIA exception for the transcripts of such conferences," the unanimous three-judge panel said.

The court did not, however, release the two pages of the transcript or even rule on the national security claims made by State. Instead, the panel ordered the lower court to hold a secret hearing at which the government could attempt to justify the "confidential" label and to withhold the pages under exemption 1.

The National Security Council re-evaluation and confirmation of CIA ownership of the Glomar Explorer will affect another case besides MAP v. Turner. In Phillippi v. CIA, a journalist for Rolling Stone magazine sought copies of records relating to the agency's efforts to convince the press not to publish stories on the Glomar Explorer and Project Jennifer.

As in our case, the CIA claimed exemption 1 in its refusal to confirm or deny the existence of the requested documents.

The merits of the case have not been decided, but the Court of Appeals ruled in November 1976-before the NSC re-evaluation—that the CIA should be required to provide a public affidavit explaining in as much detail as possible the basis for its claims.

In the two other cases involving exemption 1 decided by the courts, it was the main issue around which the decision turned. Secrecy prevailed in both

cases.

In Richardson v. Spahr, 416 F. Supp. 752, (W.D. Pa., 1976) the plaintiff requested copies of the budget and other financial information on the CIA. Both the Treasury Department and the agency itself refused to disclose the records, citing exemptions 1 and 3 ("information . . . specifically exempted from disclosure by statute").

The U.S. District Court for Western Pennsylvania found that the financial information could be withheld under several provisions of law, including the act which chartered the CIA. That finding alone, said Judge Wallace Gourley, was sufficient to deny the request.

But the court went on to address, and to endorse the exemption 1 claim. After reviewing the record, the judge found that the agencies involved complied with procedural requirements in classifying the documents as secret.

In Bennett v. Department of Defense, 419 F. Supp. 663, the plaintiff requested copies of all documents relating to military missions "having the objective of introducing men or materiel into the Republic of Cuba" after Castro took power in 1959.

The Defense Department, acting in concurrence with the CIA and the National Security Council, denied the request citing exemptions 1, 3, and 5 (“interagency or intra-agency memorandums or letters which would not be available by law to a party... in litigation with the agency").

As in Richardson, the U.S. District Court in New York said the other cited exemptions were applicable, but gave special attention to exemption 1.

The court did not review the documents in camera, as permitted under the 1974 amendments to the FOIA. Instead, Judge Lloyd MacMahon relied upon affidavits submitted by the Defense Department and found that the records had been classified properly, both procedurally and substantively.

As a result of these decisions, the defense and intelligence community continues to act in secrecy. The Freedom of Information Act is merely an annoying gnat.

Serious investigations by reporters and public interest groups have been thwarted with the classification stamp. Embarrassing and illegal acts have been hidden under the cloak of exemption 1.

The use of the exemption is common. Examples of the requests which have been made by our organization alone in recent months and which were denied on the basis of the exemption include: