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PAGE THREE

QUESTION

3) Several commentators on this debate about F.O.I.A. and national security have noted that current regulations regarding classified material have been ample protection up to now for intelligence sources and methods. Can you see reasons for putting protections against disclosure of intelligence methods into the law instead of just relying on regulations?

ANSWER:

It is not accurate that regulations provide sufficient protection
against the disclosure of intelligence methods. For example,
specifics regarding antiterrorist devices and methods were
obtained under F.0.I.A. and printed June 16, 1980 in a
national newspaper. Information retrieval methods, training

materials and instructions to overseas offices have also been
published after being obtained through F.O.I.A. releases.
Additionally, if the decision in the Holy Spirit Association
v. CIA case is upheld, a precedent will be set for courts to
overrule such regulations. Therefore, exemptions must be in

law; regulations are not sufficient.

PAGE FOUR

QUESTION:

4)

Senator, I know that you serve on the Appropriations

Subcommittee and specifically on the subcommittees controlling
Foreign Operations and Defense spending. Are there adequate
congressional checks through committee oversight and funding,
to prevent the CIA from "stepping out of line" if F.0.I.A.
were amended to reduce the number of requests CIA would have

to answer?

ANSWER:

Yes. The House and Senate Intelligence Committees, and to

a lesser extent, the Defense Subcommittee of the Appropriations
Committee, are more than adequate safeguards. First, these
Congressional Committees have greater oversight and investigative
power than at any time in our history. Second, the resources
of these committees insure extensive and thorough oversight.
Third, these Committees have safeguards against breaches of
security.

In contrast, self-appointed "regulators" who seek information
under F.O.I.A. cannot conduct any effective type of "oversight"
Piecemeal revelations under F.O.I.A. do not have the same effect
as thoroughly conducted Congressional investigations. Moreover,
there are no safeguards against security breaches and leaks
by individual F.O.I.A. requesters. Such individuals operate
under no restraints, and in many cases, are hostile to our
national interest.

Senator HATCH. Director Casey.

STATEMENT OF WILLIAM J. CASEY, DIRECTOR OF CENTRAL INTELLIGENCE, ACCOMPANIED BY ERNEST MAYERFELD, DEPUTY GENERAL COUNSEL

Mr. CASEY. Mr. Chairman, it is a pleasure to have this chance to tell you about the Freedom of Information Act and its impact on American intelligence.

There is an inherent contradiction in applying a statute designed to assure openness in Government to work which is necessarily secret. In operation this has seriously impaired the functioning of an entire intelligence apparatus with no significant public benefit. Now several bills have been introduced to alleviate this situation. The exemptions provided by your bill, Mr. Chairman, by Senator D'Amato's bill, by Senator Chafee's bill, would all be most helpful in reducing the burden of this requirement but would not remove the perception of our being unable to keep secrets and being subject to an openness standard that does not prevail elsewhere in the world, which has been so damaging to us.

Although these bills, Mr. Chairman, would all be most helpful, I will urge today that CIA, NSA [National Security Agency] and the Defense Intelligence Agency be entirely exempted from the Freedom of Information Act. As we face multiple threats around the world, as you indicated in your opening statement, we cannot, if we are serious about national security, continue to impose this burden on our most sensitive intelligence agencies.

To search and review records in response to these requests poses special problems for the intelligence agencies. The need to protect intelligence sources and methods through a complex system of compartmented and decentralized records is in direct conflict with the concept of openness under FOIA.

The search for information responsive to one of these requests is an especially time-consuming task for us but what is of ultimate concern or major concern is the level of employee, the level of talent and experience which must become involved in this review process. When we locate records in response to one of these requests, the documents must be carefully reviewed in order to determine which information can be released safely and which must be withheld in accordance with applicable exemptions.

In other Government agencies the review of information for possible release is a routine administrative function. In order to protect matters such as the security of operations or the identities of intelligence sources in the intelligence agencies, it can be a matter of life or death for human sources.

In some circumstances, mere acknowledgement of the fact that we have any information on a particular subject or have engaged in a particular type of activity would be enough to place a source of that information in danger, enough to compromise ongoing operations, or to impair relations with foreign governments. This kind of review is not a task which can be entrusted to individuals hired specifically for this purpose.

We need careful, professional judgment in review of information surfaced in response to these requests. This review requires the

time and attention of intelligence officers whose primary responsibilities involve participation in, and management of, crucial programs of intelligence collection and analysis for the President and our foreign policymaking establishment.

I think the situation was summed up, Mr. Chairman, by Judge Gerhard Gesell, of the U.S. District Court for the District of Columbia, when he said in a recent decision:

It is amazing that a rational society tolerates the expense, the waste of resources, the potential injury to its own security, which this process necessarily entails and requires.

This is merely an up-to-date version of the perception which George Washington had, and which Senator D'Amato just brought to our attention.

The United States is the only nation in the world whose intelligence agencies are subject to this kind of a requirement. Handling these requests consumes about 5 percent of our operational officers, men who have been carefully selected and trained, experienced, to acquire the intelligence we need. Five percent of them have to devote themselves to this function, which jeopardizes our capability with no significant public benefit.

Altogether some 200 people work on these requests, amounting to 144 man-years. A simple request might require 21 record systems to be searched, a difficult one, over 100, at a cost of about $3 million a year. A single request recently by Philip Agee-who publishes the Covert Action Bulletin and goes around the world exposing undercover agents for the express and explicit purpose of impairing American intelligence capabilities-cost $325,000; a pile of documents, two piles this high-I do not know how many other documents had to be searched to get it-cost $325,000 in personnel and over $70,000 in computer time for a total of about $400,000.

There is also here an enormous opportunity for error and inadvertent release of information. This has already created severe diplomatic embarrassment and jeopardized lives. I would be glad to detail some of this in closed session at any time.

However, what is most damaging of all is the perception created by the application of this law to intelligence. We get a large proportion of the essential intelligence we acquire from friendly intelligence services, none of them subject to a requirement like this. Some 15 have told us that they feel obligated to restrict the flow of information to us because of this requirement. Nobody knows how many or to what degree other services restrict information without telling us about it.

Our agent network is placed in jeopardy. Good agents decide that they cannot entrust their careers, their lives, their reputation, to working with us because they do not have any confidence in our ability to keep secrets. We again have many examples of this which could be put forward in closed session.

However, perhaps most important of all is the fact that the intelligence relationship, the agent relationship, the matter of getting the critical human intelligence, depends on a case officer being able to recruit somebody who will work with us, develop a contractual relationship with him. To do this requires establishing trust

and confidence, and providing the assurance that the relationship will be kept confidential.

The very existence of the Freedom of Information Act and its application to intelligence agencies makes this a very difficult task, creates a mental hazard which impairs the work of a case officer, and as I said before, causes many people who want to work with us to turn the other way or turn their backs to us. Therefore, the perception which this requirement creates is what has to be eliminated.

Liaison services and agents know that the KGB and other adversaries can demand information under this act. No other intelligence service in the world is subject, or subjects its agents and liaison services, to this kind of a risk.

Other nations adopt and pursue the concept of openness in government. Australia and New Zealand have recently established laws modeled on our Freedom of Information Act but they have exempted their intelligence agencies from the application of this law. Canada is considering such an act now and it seems quite clear that they too will not subject their intelligence agencies to it. The matter of oversight, Mr. Chairman: It has been said that this act is part of the oversight process. Mr. Chairman, the Freedom of Information Act has never been an effective oversight mechanism for the intelligence community. Merely responding in a fragmentary way, much of the time misleading because it has to be fragmentary, does not provide any significant public protection nor any kind of real oversight. This fragmentary information obtainable under the Freedom of Information Act has not, cannot, and will not ever remotely compare in value with congressionally established oversight.

This is a responsibility given to the Select Committees on Intelligence in the Senate and the House. These two committees are specifically responsible for overseeing authorization of appropriations and operation of the various intelligence agencies. It is this system of vigilant and effective congressional oversight along with extensive executive branch review mechanisms which provides the means through which the American people are assured that the operation of their intelligence agencies is in accordance with applicable law.

Mr. Chairman, the President has stated his determination to enhance the Nation's intelligence capabilities and I am dedicated to work toward achieving that goal. The Congress must face the issue squarely and affirmatively and recognize that the current application of the Freedom of Information Act is inappropriate, that it is detrimental to the accomplishment of intelligence missions, and that it is unjustified by its insignificant public benefit.

Only a total exclusion of records created or maintained by the Central Intelligence Agency, the National Security Agency, and the Defense Intelligence Agency from all of the Freedom of Information Act requirements can, by completely eliminating the need to search and review records in response to requests and the wasteful and debilitating diversion of resources and critically needed skills, eliminate the danger of court-ordered release of properly classified information and reestablish the confidence of human sources and

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