The problem with unauthorized disclosure of information identifying U.S. intelligence officers is the subject of a bill now before the full Judiciary Committee, S. 391. The House version of this bill passed yesterday. I find it ironic that our Federal Criminal Code now punishes disclosures of Department of Agriculture crop estimates. In other words, our law protects statistics about possible corn production far better than the lives of vital intelligence personnel like Richard Welch. In the sense that we are not protecting our intelligence personnel, we may be closing our eyes when we most need them. I think we need to consider the Freedom of Information Act in this context. We must learn if FOIA is endangering the mission of the Central Intelligence Agency, the National Security Agency, and other Government bodies charged with a function so vital to our national defense. We must uncover if foreign sources of information, even allies, hesitate to share information with U.S. intelligence officers due to the widespread belief that we cannot protect secrets. We must discover if informants, one of the most vital sources of foreign intelligence, are reluctant to cooperate with the United States because they doubt that we can insure their confidentiality. We must determine if court review of denied FOIA requests, such as the recent District of Columbia circuit case that ordered some classified CIA documents released, is presenting the prospect that sensitive files may be open to hostile eyes. We pride ourselves on our Nation's openness, on our freedom of information policies dating back to the first amendment in 1789. We do not want to indiscriminately reduce that openness but we must at the same time be sure that our openness does not become a weapon for those who would undermine our freedoms. As I have mentioned, our Nation may be depending more on its intelligence sources today than at any time since Gen. George Washington depended upon Benjamin Franklin's communications from France to alert him to British tactics and naval resupplying missions. Accordingly, I am pleased that we have gathered some of the Nation's top experts to help us learn the effect of the Freedom of Information Act upon our intelligence agencies. Senator HATCH. I notice that Senator D'Amato is here. Bill, would you mind if we have Senator D'Amato go first since his bill is one of the proposals under consideration today? Mr. CASEY. Not at all. Senator D'AMATO. Mr. Chairman, if it please the committee it might even prove more interesting to hear the Director of our CIA give his testimony in support of the bill. Whatever the Chair wishes, I am certainly willing to- Senator HATCH. Why don't we have you first summarize your statement, Senator D'Amato, and then have Director Casey testify after you? I will introduce you both now and then we will go in that order. Our first witness will be the distinguished junior Senator from the State of New York, Alfonse D'Amato. Senator D'Amato is the author of one of the primary bills, S. 1235, to protect the intelligence function from undue disclosures under the Freedom of Information Act. We are pleased to have one of our colleagues, who has devoted a considerable amount of time to studying this problem, share his thoughts with us. We are also very happy to welcome to the subcommittee the next witness to address this topic, William Casey, Director of the Central Intelligence Agency. We could have no better witness on this particular subject that the Director of the Agency itself. As the individual most responsible in the United States for our first line of defense, we are pleased today to welcome you, Mr. Director, to give us your assessment of the impact of the Freedom of Information Act on our Nation's vital intelligence-gathering functions. We appreciate your taking the time to be with us this morning, and look forward to your testimony. At the close of your remarks, the full text of which will be made part of the record, the subcommittee would of course like to ask you some questions. We will turn to Senator D'Amato first and then Director Casey. STATEMENT OF HON. ALFONSE M. D'AMATO, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator D'AMATO. Mr. Chairman, I thank you for giving me the opportunity of testifying before you and the committee today in support of Senate bill 1235, the Intelligence Information Protection Act, which I introduced on May 20. Since that time 22 of my colleagues from both sides of the aisle have joined me by cosponsoring this important legislation. I might add that an identical bill, H.R. 4518, has been introduced in the House. In order to understand why the Freedom of Information Act must be amended, one need only look at some of the abuses under this act. Those openly hostile to the national interest, such as Philip Agee, the Covert Action Information Bulletin, Counterspy Magazine, and others have disclosed classified materials including development of antiterrorist methods and nuclear capability of our allies. Incidents such as these are merely the tip of the iceberg. The day-to-day effects are even more detrimental. Allies have in many cases been reluctant or refused to share information with us because they fear disclosure of their agents' identities. One official of a European intelligence agency stated; I dare say none of my colleagues today would pass on to the Americans sensitive data about our work on the Continent or even hint at anything we have which would identify agents in the field. It would be suicide for our people. Foreign nationals who would otherwise have aided the United States have declined to do so because of the possible FOIA requests. Examples were given in testimony last year by former Deputy Director of the CIA, Frank Carlucci: A foreign national who decided not to continue work with the United States after having worked with us for 2 years; another individual who had worked with us for 3 years discontinued his relationship because of fear of disclosures, because of fear that he would be exposed. In addition, we are failing to attract new agents, again because of fear that their identity will be revealed. In addition, an inordinate amount of time—and I am sure that Director Casey will address himself to this-is being spent, great demands are being placed on the senior intelligence officers who are required to process the freedom of information requests. This unfortunately comes about as a result of the sensitivity and the nature of the requests and the information which is available only on a need-to-know basis, consequently requiring those senior CIA officials to process these daily requests for freedom of information. I think it is important to clarify at the outset what this bill does not do. It in no way affects the ability of individuals to obtain their own files under the Privacy Act. It does not infringe upon oversight by either the House or Senate Committees on Intelligence. It does not affect declassification under Executive Order 12065. The intent of this bill is the following: First, it tightens loopholes existing in present exemptions. The bill adds internal rules, practices, personnel training, and reorientation as exemptions. It also amends exemption number six regarding personnel files, exempting all personnel records of the CIA except for use by an individual for employment outside of the CIA. It also clarifies distinctions between law enforcement records and national intelligence investigatory records, clearly defining that investigatory activities of the CIA will be exempt. Second, it adds new exemptions protecting materials related to special activities, clandestine collection, or covert operations, and protecting the internal operation, office management, and organization of the CIA. Third, S. 1235 amends the provisions regarding severability, so that if any part of a document is exempt the entire document is exempt. I might add that that was basically what the Freedom of Information Act did in 1966, Mr. Chairman, when it was first adopted. Then, as amended in 1974 it did away with the severability clause, so that now we have a situation where sensitive documents are literally made public. We have a CIA officer, a senior officer, who has to try to delete as much as he possibly can but that document itself cannot be protected. That is not what was intended in 1966. The 1974 amendment to the Freedom of Information Act jeopardized the security activity of this Nation, impaired the effectiveness of the CIA, and makes it impossible for us to have the kind of effective intelligence community and operation that we need for our national security. I would ask that the committee take the balance of my remarks as if read in their entirety, and let me just conclude with-Senator HATCH. Without objection, it is so ordered. Senator D'AMATO. Thank you, Mr. Chairman. One remark, I think, that goes back to our Nation's Founding Fathers, is a quotation from George Washington when he was speaking to Col. Elias Dayton about the necessity for good intelligence. He said: The necessity of procuring good intelligence is apparent and need not be argued any further. All that remains for me to add is that you keep the whole matter as secret as possible, for upon secrecy success depends in most enterprises of this kind, and for want of it, they are generally defeated however well planned. I hope that this subcommittee will carefully review this bill and report it favorably to the full Judiciary Committee. Our intelligence community, indeed our Nation, deserves no less. TESTIMONY OF SENATOR ALFONSE D'AMATO S.1235 MR. CHAIRMAN, MEMBERS OF THE JUDICIARY COMMITEE I THANK YOU FOR GIVING ME THE OPPORTUNITY TO TESTIFY REGARDING S. 1235, THE INTELLIGENCE INFORMATION PROTECTION ACT, WHICH I IN ORDER TO UNDERSTAND WHY THE FREEDOM OF INFORMATION ACT MUST OTHERS HAVE DISCLOSED CLASSIFIED MATERIALS INCLUDING DEVELOPMENT BECAUSE THEY FEAR DISCLOSURE OF THEIR AGENTS' IDENTITIES. ONE OFFICIAL OF A EUROPEAN INTELLIGENCE AGENCY STATED, "I DARESAY NONE OF MY COLLEAGUES TODAY WOULD PASS ONTO THE AMERICANS SENSITIVE DATA |