b(1) EXEMPTION-CLASSIFICATION ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD [Exhibit 39] CIA EXPLANATION OF GLOMAR LITIGATION Request.-Provide an explanation of the Government's shift in position regarding disclosure of the Agency's relationship to the Glomar Explorer in Military Audit Project v. Turner. Response.-The Military Audit Project (MAP) made a Freedom of Information Act (FOIA) request of the Central Intelligence Agency (CIA) on 3 April 1975, for all documents pertaining to the financial arrangements between the CIA and Hughes Tool Company, Summa Corporation and Global Marine, Inc., concerning the Hughes Glomar Explorer (HGE) Project. The CIA denied the FOI request in the context of a decision by the National Security Council that CIA's involvement in the HGE Project could not be acknowledged for reasons of national security. Thus, the CIA asserted that the very fact of its possession of records relating to the HGE Project was classified. On 17 December 1975, Military Audit Project instituted a lawsuit to force the disclosure of HGE-related documents and, after extensive litigation involving in camera proceedings, the United States District Court for the District of Columbia on 20 October 1976, granted judgment to CIA, in effect affirming the position that the fact of the possession of HGE-related documents by CIA is classified. To support this position, CIA submitted classified affidavits by the former Assistant to the President for National Security Affairs, Lt. Gen. Brent Scowcroft; former Deputy Under Secretary of State, Lawrence Eagleburger; and the former Director of Central Intelligence, George Bush; which set forth the reasons why an official acknowledgment of CIA's involvement in the HGE Project was classified. The Military Audit Project appealed the District Court's decision to the United States Circuit Court of Appeals for the District of Columbia. While that appeal was pending, CIA, at the request of the Department of Justice, sought to determine the views of the current Administration regarding the need to continue to classify the fact of CIA's involvement in the HGE Project. It would clearly have been inappropriate to pursue this litigation on appeal unless it had been established that the responsible senior officials in the National Security Council, who are currently in office, would reaffirm the determination by the previous Administration's officials that CIA's involvement in the HGE could not be acknowledged. After examining all relevant factors, Stansfield Turner, the current Director of Central Intelligence, on 18 April 1977, recommended to the incumbent Assistant to the President for National Security Affairs, Dr. Brzezinski, that CIA involvement in the HGE Project should now be acknowledged, and Dr. Brzezinski agreed. In the context of this decision, CIA moved to have Military Audit Project v. CIA remanded to enable the District Court to consider the impact of CIA's acknowledgment of its involvement in the HGE Project on this litigation. (429) 21-656-78- -29 [Exhibit 39a] ABOUREZK LETTER REQUESTING JUSTICE DEPARTMENT EXPLANATION OF GLOMAR LITIGATION Ms. BARBARA ALLEN BABCOCK, NOVEMBER 16, 1977. Assistant Attorney General, Civil Division, Department of Justice, DEAR MS. BABCOCK: As part of its recent oversight hearings on the Freedom of Information Act, the Administrative Practice and Procedure Subcommittee requested an explanation from the CIA of its June 1977 shift in position in the Military Audit Project v. Turner case concerning the CIA's involvement in the Glomar Explorer Project. The CIA submitted a response November 1. It refers to a 1977 request by the Justice Department for a review of the CIA's position in the suit; taking into consideration the new Administration's views on the need to continue classification of CIA participation in the Glomar project. In an effort to obtain a clearer understanding of the government's unusual actions in this FOIA suit, the Subcommittee would like detailed information on the Justice Department's role in supporting the CIA's original stance in the case, and in shifting that position last summer. In that regard, please forward to the Subcommittee an annotated chronology of Justice Department involvement in the matter since the request was filed in April 1975. In addition, please provide copies of all documents relating to the case, including any pertaining to the Justice Department's request (referenced in the CIA's November 1st response to this subcommittee) for a review of the CIA's position. On behalf of the Subcommittee I would appreciate receiving the material by JAMES ABOUrezk, [Exhibit 39b] JUSTICE DEPARTMENT EXPLANATION OF GLOMAR LITIGATION November 29, 1977. Hon. JAMES ABOUREZK, Chairman, Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR ABOUREZK: This letter is in response to your November 16, 1977, inquiry concerning the Department of Justice involvement in the Military Audit Project v. Turner litigation. I have previously conducted my own inquiry into this matter and I am satisfied that at all times the Department of Justice and the defendant agencies have acted in an appropriate and professional manner. Please see my July 15, 1977, letter to Judge Gesell, a copy of which is attached. From the outset this was an unusual case. The appropriate national security officers of the Ford Administration had determined that the fact that CIA was involved in the Glomar Explorer Project required classification for national security reasons. The then Chief of the Information and Privacy Section who handled the case himself vigorously probed the bases for this determination. He met with appropriate officials at the CIA and at the White House. He personally reviewed each document considered reasonably likely to be responsive to plaintiff's request. He attempted to negotiate a compromise of the litigation. When Judge Gesell ordered an in camera proceeding he met with the then Deputy Assistant to the President for National Security Affairs, William G. Hyland; then Deputy Undersecretary of State Lawrence Eagleburger; and then Director of Central Intelligence George Bush, each of whom determined that disclosing the fact of CIA involvement would harm national security. Following the in camera proceeding Judge Gesell dismissed the suit on October 20, 1976. Plaintiffs then filed their appeal. With the election of President Carter and the appointment of new national -security officials the then Chief of the Information and Privacy Section and attorneys in the CIA agreed on the need for a re-evaluation of the position which had been taken by the persons responsible for national security determinations within the Carter Administration. In January or February of 1977 the Chief of the Information and Privacy Section orally requested the CIA to initiate such a review. The result of that review was the determination that the fact that CIA was involved in the Glomar Explorer Project could be publicly released consistent with national security requirements. I hope that the foregoing statement answers the Subcommittee's concerns. Inasmuch as this case is still in litigation, documents other than the extensive briefs and pleadings on the public record cannot be provided at this time. Mr. Paul Figley of our Information and Privacy Section, or I would be happy to discuss this matter further if you feel it necessary. Very truly yours, BARBARA ALLEN BABCOCK, Assistant Attorney General. Hon. GERHARD A. GESELL, DEPARTMENT OF JUSTICE, Washington, D.C., July 15, 1977. Judge, U.S. District Court for the District of Columbia, U.S. Courthouse, Washington, D.C. DEAR JUDGE GESELL: The Attorney General has asked me to look into the circumstances surrounding the Civil Division's handling of the case of Military Audit Project v. Turner. The Attorney General is concerned in view of Your Honor's comments regarding improper conduct of government counsel, particularly in connection with representations made to the Court regarding the government's position. It appears that government counsel, at the time this action was originally brought, urged that the fact of the involvement of the Central Intelligence Agency and/or the Department of Defense in the Glomar Explorer project could not be made known. The position urged upon the Court at that time was taken by the Department of Justice because the then Assistant to the President for National Security Affairs had determined that this course was warranted by national security considerations. I understand that the government's position at that time had been cleared by the National Security Council and was consistent with actions taken by President Ford in refusing to disclose the involvement of the CIA in what was then a story widely reported in the press. After the October 20, 1976, Order was entered dismissing the action, the plaintiff appealed. During the pendency of the appeal and in light of the passage of time, changing circumstances and the fact that a new Administration had taken office in the interim, the Chief of the Civil Division's Information and Privacy Section, early in 1977, requested the CIA to ascertain the views of the new Assistant to the President for National Security Affairs concerning the issue as to whether the fact of CIA's past involvement in the Glomar Explorer program still required protection from disclosure on national security_grounds. After considering the matter, appropriate Executive Branch officials charged with responsibility for advising the President on national security matters determined that the disclosure at this time that the CIA had been involved in the Glomar program would not, in their judgment, damage the national security. That determination, of course, undercut the position previously asserted by the government that the fact of CIA involvement in the Glomar program could not be publicly disclosed. The altered position of those charged with national security matters prompted the Department of Justice to file the Motion to Remand in the Court of Appeals. I can appreciate the Court's concern any time counsel, and particularly counsel representing the government, make conflicting representations on the same issue before the courts. As I am sure you know, many of our efforts in the Department are directed toward preventing that problem from occurring. In this instance, however, it appears that the change in administrations and differing perceptions of our national security interests and needs are at the bottom of this unfortunate conflict in representations of government counsel. I am satisfied, after considering these circumstances, that there was no intention or effort on the part of government counsel to mislead the Court or to be anything less than candid about the government's position. I trust the foregoing will serve to satisfy the concerns Your Honor has expressed regarding this matter. I shall be happy to attempt any further clarification of this matter in any way that Your Honor might desire. Yours very truly, BARBARA ALLEN BABCOCK, [Exhibit 39c] ABOUREZK LETTER REQUESTING NATIONAL SECURITY COUNCIL EXPLANATION OF GLOMAR LITIGATION Mr. ZBIGNIEW BRZEZINSKI, November 16, 1977. Assistant to the President for National Security Affairs, National Security Council, Old Executive Office Building, Washington, D.C. DEAR MR. BRZEZINSKI: As part of its recent oversight hearings on the Freedom of Information Act, the Administrative Practice and Procedure Subcommittee requested an explanation from the CIA of its June 1977 shift in position in the Military Audit Project v. Turner FOIA case concerning CIA involvement in the Glomar Explorer project. The CIA submitted a response November 1st. It indicated that, while National Security Council officials originally concurred with the CIA's refusal in 1975 and 1976 to acknowledge CIA participation in the project, that no longer was the case under the new Administration. In an effort to obtain a clearer understanding of the government's unusual actions in this FOIA suit, the Subcommittee would like detailed information on the NSC's role in supporting the CIA's original stance, and in shifting that position last summer. In that regard, please forward to the Subcommittee an annotated chronology of NSC involvement in the case since the request was filed in April 1975. În addition, please provide copies of all documents relating to the suit, including any pertaining to the CIA's reversal of its position last June. On behalf of the Subcommittee, I would appreciate receiving the material by November 28th. If you have any questions about this request please contact me or have your staff contact Irene Margolis at the Subcommittee at 224-5617. Thank you for your cooperation in this matter. Sincerely, JAMES ABOUREZK, Chairman, Subcommittee on Administrative (Exhibit 39d) NSC EXPLANATION OF GLOMAR LITIGATION THE WHITE HOUSE, Washington, D.C., February, 3, 1978. Hon. JAMES ABOUREZK, DEAR SENATOR ABOUREZK: I have considered carefully your request for detailed information relating to the NSC's role in CIA's decisions concerning public acknowledgment of its role in the Glomar Explorer Project. |