Central Intelligence Agency INTELLIGENCE Washington, DC 20505 7 October 1981 Honorable Orrin G. Hatch, Chairman Committee on the Judiciary Washington, D.C. 20510 Dear Mr. Chairman: During my testimony before the Subcommittee on 24 September, Senator Thurmond submitted several questions for my response. I appreciate the opportunity to respond to Senator Thurmond and I submit these questions and answers to you for inclusion in the record. I wish to take this opportunity to commend you for your leadership in chairing the several days of hearings on the Freedom of Information Act. As I indicated in my testimony, I feel very strongly that the FOIA is causing serious damage to the ability of our intelligence agencies to fulfill their intelligence missions. I trust that together we will achieve the necessary and appropriate solution to this problem. Enclosure Sincerely, Bull William J. Casey Director of Central Intelligence HEARING BEFORE THE SENATE JUDICIARY ANSWERS TO QUESTIONS SUBMITTED BY SENATOR STROM THURMOND 1. A: Mr. Casey, approximately how many work years does the CIA spend in a year responding to FOIA requests and declassifying information? In calendar year 1979, 110 work years were spent processing 2. A: Mr. Casey, we have legislation before the committee that would place a moratorium on the application of the Freedom of Information Act to the CIA. What period of time would be reasonable and what reasons can you give the Committee for a moratorium? At We believe that only a total exclusion from the FOIA of 3. Mr. Casey, one loophole in the current Freedom of A: While the law currently requires requests from foreign nationals to be handled in the same manner as requests from American citizens, I do not believe that limiting the availability of the FOIA to U.S. citizens and permanent resident aliens will solve this problem. Such an amendment would only result in foreign nationals and foreign intelligence services submitting their requests through witting or unwitting Americans. Only a total exclusion of our sensitive intelligence agencies from the Act will prevent such requests. 4. A: Mr. Casey, ore of the criticisms of the current Freedom The hesitancy of friendly foreign government intelligence Senator HATCH. Senator D'Amato, we will submit some questions to you but we appreciate your being here as well. We appreciate your activity on this bill. Senator D'AMATO. Thank you very much. Senator HATCH. Thank you so much. The subcommittee would next like to welcome Mr. Morton H. Halperin, who is testifying today on behalf of the American Civil Liberties Union. Mr. Halperin is currently the director of the Center for National Security Studies, which is jointly sponsored by the American Civil Liberties Union and the Fund for Peace. He is a former staff member for the National Security Council, a former Deputy Assistant Secretary of Defense for the Nixon administration, and the author of several books and articles dealing with foreign policy and intelligence. We are honored to have you with us here today, Mr. Halperin, and we will look forward to your testimony as well. STATEMENT OF MORTON H. HALPERIN, AMERICAN CIVIL LIBERTIES UNION, ACCOMPANIED BY ALLAN ROBERT ADLER Mr. HALPERIN. Thank you, Mr. Chairman. I appreciate the opportunity to testify along with Allan Adler on behalf of the American Civil Liberties Union. I would like to- Senator LEAHY. Excuse me, Mr. Chairman. Before Mr. Halperin starts, I have an amendment on the floor. I am going to have to leave. I wonder if I might ask permission to quite possibly submit one or two questions to Mr. Halperin subsequently for the record, if that would be OK. with Mr. Halperin. Senator HATCH. Without objection, we will keep the record open for questions for all witnesses so any member of the committee can submit questions. Senator LEAHY. I apologize, Mr. Halperin. This is the second time you have testified that I have been called away. I had hoped very much to be able to hear your testimony and I apologize. Mr. HALPERIN. I appreciate your interest, Senator. Thank you. Senator HATCH. Go ahead, Mr. Halperin. Mr. HALPERIN. I would like to ask that our statement be made part of the record. Senator HATCH. Without objection, we will put the full statement in the record. Mr. HALPERIN. What we would like to do is, in effect, summarize it by commenting first briefly on Mr. Casey's statement and his testimony, and then Mr. Adler will comment briefly on Senator D'Amato's bill. There seems to be a new element this year in the CIA's position on this issue. They are giving much more emphasis than they did in the past to the problem of the burden of examining files, which arises from the fact that they operate under a compartmentalized system and that the review of the documents has to be accomplished by very senior officials of the Agency. Senator HATCH. Let me say this: I have been, I guess, involved with this since 1977 when we started some of the hearings on this. Everyone who has come in has complained that it is taking extensive-the FBI was the first to really start establishing that it is just taking extensive professional staff to be able to just meet the surge of freedom of information requests, not so much from the media, which really does not utilize the system, as much as perhaps a whole variety of people throughout society and throughout foreign lands. I was interested in that, too, though. He did make the point that it is becoming an increasingly difficult burden. I think he said 5 percent of their total intelligence personnel are being utilized just to handle freedom of information requests. I kind of got the impression from what he said that the reason they have to use so many professionals on this is because they are just terrified that they might give up some material that really should not be disclosed, that might be crucial to our country's intelligence system. However, that was an interesting comment. Mr. HALPERIN. Yes; I think the CIA has problems distinct from many other agencies-there are two differences. One is that in most other agencies the review process can be done by people who are hired simply to review documents, which I think cannot be done for many CIA documents. Second is that the percentage of material which the CIA ends up releasing is far smaller than many other agencies because they have more legitimate claims to secrecy for many of their documents. I think those are real problems and I think that a solution to them should be found. I think a solution to them can be found either by amendments to the act or by agreed administrative changes in the procedures under which they operate. Senator HATCH. Do you think any of the present bills- Mr. HALPERIN. I do not think any of the present bills solve that problem, nor do I think the total exemption that the CIA recommends is the appropriate solution to that problem. Senator HATCH. You then would dispute Mr. Casey, that there should not be an exemption for intelligence gathering, for CIA activities. Mr. HALPERIN. Yes; I would think that there should not be a total exemption for the Agency. I think that this problem they have identified is real, and I think it can be handled either by amendments to the act, or by administrative changes, or by some combination which, for example, might permit sampling of documents or might permit the exclusion, at least at an initial stage, of the gathering of all of the files in relation to a request. For example, the CIA has adopted a procedure now which they refer to, I think, as the GLOMAR procedure, whereby if you request documents on a subject that they know they will not confirm or deny the existence of documents on, they do not search for the documents, gather them all together, and then tell you that they will not confirm or deny it. They simply write back and say, “We will not confirm or deny the existence. For example, if you write in and ask for all the documents from colonels or higher in the Soviet military provided to the CIA in the last 2 years, the CIA does not gather together any such files and then write back and say, "We will not confirm or deny." They simply write back and say, "We are not going to search because we know that even if we had anything, we would not confirm or deny its existence." |