Professor Scalia, one of the major battlegrounds under FOIA has been the court review of classified material. You have discussed that with us today. You were at Justice in 1974 when the FOIA amendments were enacted which essentially repealed the EPA v. Mink decision of the Supreme Court. Mink, as you will remember, said that the courts may not review records to see if they were correctly classified. The 1974 act changed that. What rules should the courts have in reviewing classified information, and how can we resolve this problem?

Mr. SCALIA. The problem with the 1974 amendments is that they go from one extreme to the other. The Mink case was the extreme of the court looking not at all beyond the rubberstamp. If the document was stamped "Classified," the court's job was done. The 1974 amendments go to the other extreme. The court, on its own, de novo, is to determine, with the burden of proof on the Government, what consists of national security information-what is protected under the Executive order. It seems to me there is a middle ground between the two.

I can acknowledge the inadequacy of the Mink rule, but between the two there is a requirement for certification at a high level of the executive branch. I think that would solve it. As I pointed out, it is indeed the course that has been taken in legislation that applies to much more significant matters of legislation involving foreign intelligence electronic surveillance.

Senator HATCH. The act currently sets a time limit of 10 days. I would like you to give us a little bit of the historical perspective on how that limit came into being and what we might do under appropriate circumstances to change the limit to a longer term.

Mr. SCALIA. I cannot give you much historical perspective as to how it came into being, because by the time I arrived at the Department the legislative process-what there was of it within the executive branch-had effectively been concluded; the die was cast.

I can say this about it: Whether or not it is the most destructive portion of the act, I find it the most offensive portion of the act, because it places in violation of the law-it is known to place in violation of the law-perfectly conscientious and law-abiding officials in many agencies.

My experience with these officials is that they do not like to violate the law. They do try to do what they are supposed to do. When Congress enacted that 10-day provision with a 10-day extension, it was clear that it would not be able to be complied with. It is clear today that it is not able to be complied with. I think it is absolutely horrendous to have on the books a law which is intentionally framed in such a way as to invite noncompliance.

Senator HATCH. You have given us an excellent perspective of the 1974 amendments to FOIA, but in this historical context can you tell us why the Government only collects in fees 2 percent of the amount it costs to respond to FOIA requests and what has inhibited the collection of fees, in your opinion? And, if it is possible, how can we make FOIA pay for itself completely?

Mr. SCALIA. I think the big difference between the 2 percent and the 100 percent is the process of the law, most of which consists of

determining whether the very detailed exemptions that are now in the act are applicable and deleting portions that are covered by the exemptions. It is a tedious process; it cannot be done by low-level personnel in all cases. The way to make up the gap could be done in a number of ways.

To the extent that the categories of exemptions are broadened, so that it is not so tedious to determine whether an exemption applies and to delete only particular portions as to which that narrow exemption applies, the processing costs will represent a much smaller proportion of the total.

The other way to solve the problem is simply to charge for processing costs. This is what I proposed in my testimony. But as I said, the two, to some extent, depend upon one another. To the extent that one has more categorical exemptions, the significance of the processing costs reduces.

Senator HATCH. You know, that is what we are trying to do in our bill-provide for the processing costs. We just had our historian in here today saying that such a change would make it very difficult for them.

I say, in the least, this bill has many, many difficulties, and of course almost everybody admits we need to tighten up and refine the language.

We have appreciated your testimony here today, and I am sorry that we had to delay so long, but it is important that we complete this record.

I think it may be important that we listen to our ranking minority member and invite Director Webster and maybe even the CIA and the Justice Department into a closed executive session, and chat with them, so that all members of the Judiciary Committee are aware of the tremendous difficulties they have with law enforcement officials to resolve these problems, some of which you have raised.

We appreciate your time, and with that we will recess the subcommittee until further notice.

[Whereupon, at 6 p.m., the hearing was recessed, subject to the call of the Chair.]

FREEDOM OF INFORMATION ACT

WEDNESDAY, DECEMBER 9, 1981

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,

Washington, D.C.

[On December 9, the Constitution Subcommitee held a final hearing on S. 1730. That hearing was classified. The two witnesses, Director Casey (CIA) and Director Webster (FBI) did, however, consent to provide a sanitized version of the proceedings for publication in the hearing record. To be complete, therefore, we should report that this final hearing was held by preparing one more segment of our record which includes the following materials as the substance of the hearing.]

STATEMENT OF WILLIAM CASEY, DIRECTOR OF CENTRAL

INTELLIGENCE

Mr. CASEY. Mr. Chairman and members of the committee, I am pleased to have this chance to appear this afternoon. My purpose is to bring before you the damage the Freedom of Information Act has caused American intelligence and to urge quick and prompt action on the proposed legislation by the requested exemption.

I am going to confine myself to the specific examples.

You have heard my general views on the damage that this legislation does, the cost and the burden of the loss of information that it occasioned, and I think you want to hear about specific examples. I was reluctant to provide them when I testified previously. Senator HATCH. Mr. Director, we understand it, are you giving us all the examples or are you just giving us a scattering?

Mr. CASEY. I mentioned 15 examples. I have given you 15 concrete examples and I have got some things to show you.

As you can imagine, our relations with liaison services and our attempts to recruit agents and maintain productive relations with them have been hampered in ways we don't know. We do not know what information was withheld without our learning about it. We don't know how many agents have turned their backs on us or have failed to undertake to report things that were particularly sensitive because of the undermining of the confidence in our ability to hold that information.

In the spring of 1979 a senior intelligence official of a [deleted] South American country stated his service is now unwilling to share any information with the CIA for fear that they might soon be reading about it in the newspapers.

The official stated that the U.S. Government is now allowing the press and any individual to obtain sensitive information for its Government offices through some ridiculous law, as they put it.

We have concrete evidence that this country, [deleted] which has previously provided us good intelligence; is witholding information from us now.

So we have clear evidence that this country quit and cut us off. The foreign minister of one of our allies told my predecessor that he had told their intelligence service not to pass information to U.S. intelligence, in part because of FOIA.

In March 1979 because of public disclosure in the United States we learned that security officials in an Asian country were taking precautionary measures in their dealings with the CIA and that there was a withholding of information which previously would have been provided routinely.

Senator SPECTER. Mr. Casey, does that suggest we have to review the whole act in order to have a liaison service supply the information?

Mr. CASEY. It suggests that we have to exempt the intelligence agencies from the act.

Senator SPECTER. Totally?

Mr. CASEY. Totally. Totally.

Senator SPECTER. Are you going to cover how much, to what extent you have to disclose information now under the Freedom of Information Act?

Mr. CASEY. We have to disclose information and we have certain exemptions that were utilized, but the problem is the perception that exists, that occasionally things have slipped through and we make mistakes and information has come out. As long as we are subject to these requests no other service can be confident that what they give us will not be victimized in that way.

Senator SPECTER. So your position here is that nothing short of total exemption of the CIA will be suitable?

Mr. CASEY. Yes. Nothing short of complete exemption at the CIA-the CIA, the NSA, and the Defense Intelligence Agency-will adequately restore the confidence to reestablish our working relationships and the full exchange of information with many foreign intelligence liaison services we work with and fully restore the confidence that our agents must have so we could acquire good agents and maintain their confidence.

Senator DECONCINI. Would the Senator from Pennsylvania yield just to follow that up?

Mr. Casey, as I understand some of the problems that you have just mentioned here, are the fact of human error and sometimes the burden of the request and the period of time that you have to respond to it, couldn't some of that be resolved or alleviated by looking at some relief as to the time to permit your agency to thoroughly review it before you had to release it without totally exemption?

Mr. CASEY. I don't think any amount of reviewing and any amount of time would provide assurance that information would not-and no other intelligence service in the world has to meet this requirement. As long as we have to meet it we are going to be con

sidered the odd man out, and I don't think we can overcome that in any other way.

Senator HATCH. It's more than that too. Director Webster testified that wasn't it in one case a judge ordered you to produce 40,000 pages a month?

Judge WEBSTER. That's correct, Mr. Chairman.

Senator HATCH. And that is impossible to do without error. Now that could happen to, I take it, you agency under present law, although you have power of exemption. Am I correct, Director Casey. Mr. CASEY. Yes.

Senator HATCH. If you are ordered▬▬

Senator DECONCINI. Orrin, that is my point. I had not heard the Director talking, but Judge Webster testified that there is a certain amount of human error and I just want to clarify what the Director is saying here, that the only reference he has made here, I think, is the fact that it is a perception that there can be some errors made.

Mr. CASEY. I want to make it clear that I am not talking about information under U.S. citizens-the Privacy Act. We are not asking for exemption from that. We are talking about foreign intelligence-the kind of information we exchange.

Senator DECONCINI. Anything that would be classified as foreign intelligence. That's all I had. Thank you.

Senator HATCH. Could you also tell us how many personnel the CIA presently has working on freedom of information matters? Director Webster indicated you have 300 or thereabouts full time at headquarters, not counting others in the field.

Judge WEBSTER. That is correct. Over 300.

Senator HATCH. Over 300. And it costs you about $15 million a year-15 or 16?

Judge WEBSTER. I think it's around $12 million last year, but it's going up.

Senator HATCH. You estimated $15 million next year.

Senator LEAHY. I have a question on this question of 40,000 pages the court ordered. Did you appeal that order? Have you been delivering the 40,000 pages?

Judge WEBSTER. This was the case that had to do with the Rosenberg execution and we did deliver them. It is my understanding that we took as many appeals as the Department of Justice would permit us to take and we were confronted with this order which we complied with.

Senator HATCH. As I understand it you were also behind in the schedule on that order on a number of occasions. You just could not comply with it.

Judge WEBSTER. We are behind in all cases now, as much as 120 days behind, based on the budgetary resources available on our line item budget for this purpose.

We cannot maintain the 10-day response time that the statute requires and I reported that to Congressman Pryor's committee, which is looking into Freedom of Information, in the House 2 years ago.

Senator SPECTER. Mr. Webster, do you know if you did appeal, in fact?