Senator HATCH. You have pinpointed some agents who have quit for that reason? Mr. CASEY. Yes. Senator HATCH. How many do you have, Mr. Director? Mr. CASEY. I don't know. We certainly don't have them all. You quit because of a variety of reasons, but we can establish that many people have signed off because they feel that everything we do Senator DECONCINI. Can you tell us how many? Six? A dozen? Three dozen? Mr. CASEY. I really can't tell you. I would be guessing. I would be guessing. Senator DECONCINI. But you know firsthand having talked to some? Mr. CASEY. No, no. I get this as hearsay in the organization. Mr. CASEY. I made an inquiry to develop these liaison illustrations and I might be able to develop some, but I think it might be more difficult when talking to agents. When agents disappear they disappear. You lose contact with them. I am sure that our case officers will be able to testify to examples. Senator DECONCINI. Is it possible that would be a good excuse to us if you wanted to get out of the service of the CIA for a lot of other reasons, to say, you know, it is just too risky because of the act? Mr. CASEY. You don't have to resort to that excuse. If you want to get out you just quit. Nobody's compelled to do it. We rely on volunteers. Senator DECONCINI. I understand. Senator HATCH. But you are saying that some of your administrative people have said that a number of agents have quit for this reason? You are definitely saying that? Mr. CASEY. Oh sure. Look we have it every day. Senator DECONCINI. You say every day? Senator LEAHY. That is 30 a month. Senator DECONCINI. Thirty a month? Mr. CASEY. It is a recurring situation. In the last couple of months we have had two instances where very productive agents in very important countries have asked to be taken out on the basis that they felt insecure. Senator LEAHY. Because of FOIA? Mr. CASEY. Well, I can't say that. I can't say FOIA. The general atmosphere of insecurity and lack of confidence in the ability to keep secrets. Senator LEAHY. Well, I think, Mr. Chairman, every member of this committee, if I read the committee right-it goes for myself and everybody else-feels that there should be some changes in FOIA involving the CIA and FBI, but our concerns-and I think Senator DeConcini raised a good point-that these people who have left or asked to be reassigned because of FOIA, I think it might do us a lot of good if we could get some firsthand from them, if maybe we could be put in touch with some. We do not need to have dozens of them. 87-749 - 82 - 62 Senator DECONCINI. Pat, these are informers, not agents. Mr. CASEY. I said sources, individual agents I'm talking about. Mr. CASEY. I don't know. Senator LEAHY. I thought I understood you to use the word "agents. Mr. CASEY. I talk in terms of case officers who recruit and operate agents. The agents are the people abroad or anywhere. Senator LEAHY. [Deleted.] Mr. CASEY. I will concede that point, Senator. Senator LEAHY. And they have- Mr. CASEY. That doesn't mean you want to have it publicly paraded. Senator LEAHY. No, and that is why I also say I think that is unfortunate that something like that comes out. And it is unfortunate that it was allowed to leak out. And whoever let that one go past, someone was not being aware of their practice or sensibilities that they do show in maintaining the fiction for whatever reason. Maybe this is not the place to bring it up, but I do understand you correctly in saying the agency determined that the attack on the Liberty was not an intentional attack and that the Israelis did not know the Liberty was an American vessel? Mr. CASEY. I have not read the reports, merely in gathering information one of the examples provided me is the release of an evaluated and the raw report arriving at different conclusions, giving the demander the right to use either one and attribute it to the CIA. Senator LEAHY. [Deleted.] Senator LEAHY. [Deleted.] Mr. CASEY. [Deleted.] we are talking about now, which is a systematic drain and vulnerability that we cannot get away from. We can say look, we will do better in the future. As long as we have a statutory obligation we have a statutory obligation. We are not going to recover that confidence. Senator SPECTER. Mr. Chairman, can I ask one question before we go on? I have to preside at 3. Mr. Casey, would it be sufficient on the problem with intelligence agencies of other nations if there were an expressed provision that excluded giving any information that comes from them? Wouldn't that solve the problem? Would that problem be raised? Mr. CASEY. I think that would certainly alleviate the drain. I don't think that would eliminate the problem. Frequently you don't know where information comes from. It gets incorporated in an analysis, some study, and if that goes out it can reveal where it came from or the people who know that what they gave us would see it there. And I don't think it would be 100-percent accurate. It doesn't answer the problem we have with respect to our individual agents. Senator SPECTER. [Deleted.] Mr. CASEY. [Deleted.] Senator HATCH. I have seen documents where they have been correlated reports that do not tell their sources. I mean, that is done all day long every day. Mr. CASEY. The whole analytical process requires that. Of course, you could perhapts identify sources if you had that exemption. Senator DECONCINI. [Deleted.] Mr. CASEY. [Deleted.] Senator SPECTER. [Deleted.] Mr. CASEY. [Deleted.] Senator SPECTER. That might be an easy answer. Mr. CASEY. It does not deal with the agent problem. How do you assure confidentiality of your agents? Judge WEBSTER. Mr. Chairman, if I may make a comment on this, because I will be commenting on this in my own examples, that narrow type of exemption, Senator, as the law is now postulated, requires you to give that reason. That is to say, we cannot disclose-we will not disclose certain things because it is given to us by another country. We have an example that I am going to talk about in mine in which the people say for that reason we will not give you anything because then they know we are talking to you. Senator LEAHY. Do we have to identify the country? Judge WEBSTER. Uh-huh. Senator HATCH. Have you furnished, Mr. Director? Senator HATCH. We will turn to the FBI and we will probably have some questions for both of you. [In December 1981, Director Webster testified in executive session before the Subcommittee on the Constitution, Senate Judiciary Committee. He described in detail cases in which hostile foreign intelligence services, organized crime figures, members of terrorists groups, and others have used the Freedom of Information Act to identify FBI informants and frustrate FBI investigations. [Members of the subcommittee have seen a demonstration of the manner in which the act can be used for these very purposes. [Chairman Hatch asked the Director to provide for the public record information concerning costs incurred in complying with the act as well as a document which reveals, to extent possible, the specific examples about which he testified. As those who heard the testimony can understand, complying with the request necessitates eliminating some examples altogether and publishing others in a highly diluted form. It simply is not possible to chronicle here, for example, the manner in which the KGB and the Communist Party have used the act, nor do circumstances allow reconstruction of the FOIA blueprint criminals have followed to the detriment of the FBI. [Those who read these materials not only should realize these accommodations had to be reached but also appreciate the severity they evidence.] STATEMENT OF WILLIAM J. WEBSTER, DIRECTOR OF THE FBI Mr. WEBSTER. During November 1981, I received a communication from one of our special agents in charge of a field office con cerning a conference on organized crime jointly conducted with a foreign ally. That communication relayed the following information: During a discussion of membership of the foreign crime families, a U.S. official asked the foreign conferees if they would furnish the U.S. conferees with a complete list of the 100,000 crime family members, including criminal records and investigative status. A foreign official advised that it would not be possible to do so. He did not elaborate on his response at that time. During a discussion of the U.S. Treasury enforcement communications system [TECS], the same official asked whether the TECS was secure, and a customs official advised that it was. He then asked whether it was not a fact that any foreign crime family could make a Freedom of Information Act request in order to learn whether he was a subject of the TECS, or for that matter, any system used by U.S. law enforcement. He also asked whether the foreign crime family member could then learn that information had been furnished to the U.S. authorities by foreign authorities. He and the other attendees were advised that information from foreign governments was able to be excluded from release under at least two exemptions of the Freedom of Information Act and as a matter of practice this was always done. In a later private exchange he asked what sort of response was given to a foreign subject if there was a pending investigation at the time of the request, since he understood that the law had no provisions to deny the existence of records in such a case. He asked then if the requester might not make an inference from a response different from a response that denied the existence of records. A discussion of the difficulties in responding to such a request ensued, and the concern of U.S. law enforcement regarding the absence of a denial provision was expressed. He advised that one difficulty the foreign authorities faced stemmed from the proposition that any foreign crime family member who received anything but a blanket denial from a U.S. agency could conclude that whatever sort of investigation did exist, must exist with the knowledge and cooperation of the foreign authorities also. From his persective, submission of the names of the members-and other information-raised serious problems. In continuing conversation, other ramifications of dissemination of information to U.S. authorities were discussed. One foreign official, who has an excellent grasp of the U.S. Freedom of Information Act, strongly noted that his country had resisted such a law. At the conclusion of the conference, the foreign law enforcement personnel stated that they would study the issue of whether the names of known organized crime figures-and other informationcould be furnished to U.S. authorities. The above information is furnished specifically because it described the concern of a foreign country with a difficult international organized crime problem. The foreign law enforcement personnel clearly indicated how invaluable our information is to them, and recognize that they will need similarly to furnish information to us, since their organized crime members are increasing their activities throughout the world, and particularly in the United States. The foreign authorities had a very good grasp of the difficulties the Freedom of Information Act had caused and the chilling effect the Freedom of Information Act has had was obvious to the U.S. delegation. It is interesting to note that our foreign associates are aware of the damage which can result when a law enforcement agency does no more than admit the existence of a record. The FBI lost a top-level organized crime informant who was our most reliable source of information regarding a branch of an organized crime family. The association between the FBI and his source began over a decade ago. More than 10 years of careful development followed. As his contacts within the organized criminal society increased, he was able to provide the identity of subjects in several FBI bank robbery cases and help resolve a major theft. Most important, he became the confidant of a ranking member of the family through whom we gained valuable organized crime intelligence. Several years ago, our special agent handling this source noticed that the information being disclosed was not so detailed or current as it once had been. The informant would relate that a meeting had taken place, but would not reveal those aspects of the meeting that could be traced to him. He would reveal nothing of a singular nature. This curtailment of information not only impaired our once solid coverage of the organized crime target in this area; it also diminished our agent's ability to control and direct the informant and his services were discontinued. How did we lose this source? The organized crime figure targeted by this informant received a quantity of FBI documents requested under the FOIA. The target displayed the documents, spread them before the source and said: "Let's see if we can find out how they got all this." The source was never the same. Fortunately, our agency had alerted the informant to this possibility. Had the informant not been prepared, his ignorance and apprehension concerning what the records contained could have made him so ill at ease that the target's suspicion could have been aroused with serious consequences. When questioned about the incident by the agent, the informant said he had complete trust and faith in the agent, but doubted the FBI's ability to protect information provided by its informants. He also pointed to the increasing popularity of the FOIA as an amusement whereby organized crime leaders obtained FBI records to taunt and intimidate members of their organizations from making any contact with law enforcement authorities. I have an example of that being done. An organized crime figure demanded and received FBI documents under the act. He confronted the proprietor of a business establishment whose only association with the FBI had been a short, unsolicited interview, several years earlier. In the midst of a casual conversation, he asked the proprietor if he had been contacted by the FBI several years ago. Nervously, the proprietor denied such a contact. The organized crime figure laughed and walked off. A distraught proprietor telephoned the FBI shortly thereafter for an explanation. We received informant information that organized crime members in the Detroit area have been instructed to submit FOIA requests to the FBI in an effort to identity our sources. |