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The first witness this morning is Fielding McGehee of the Military Audit Project.

I would like to suggest that, if you have a prepared statement, you insert it in full in the record and just try to highlight verbally. Then there is more time for questions.

Mr. McGEHEE. Yes.

TESTIMONY OF FIELDING M. McGEHEE III, MILITARY AUDIT

PROJECT

Mr. MoGEHEE. Thank you, Mr. Chairman.

I thank you very much for giving me the opportunity to speak with you this morning. My name is Fielding McGehee. I am the staff reporter for the Military Audit Project (MAP).

MAP is a public interest research group that investigates military contracting and other links between corporations and the defense and intelligence community. We have been asked to testify because one of our Freedom of Information Act requests has turned into the case of Military Audit Project v. Turner, the most hotly contested court battle on exemption 1 since Congress amended the act in 1977.

Many of the twists and turns of this case—but by no means all of them—are summarized in my written statement. I would, however, like to make one or two points about it. Our first request to the CIA and Defense Department for contracts on the Hughes Glomar Explorer, entered between the agencies, Summa Corp., and Global Marine, was filed in April 1975, about 1 month after the press broke the story that the ship had been involved in Project Jennifer, which was the attempt to raise a Russian submarine from the Pacific Ocean floor.

All news stories about the project cited CIA involvement and most indicated that the Government owned the Explorer. The purpose of our request was simple. We believe that if the CIA can spend up to $350 million of taxpayers' money on such a project and then refuse to comment upon the expenditure, even after the project has been uncovered and the international damage, if any, already done, the intelligence community will have a carte blanche license with no accountability whatsoever for any expenditure or activity.

The agency response, both by DOD and CIA, was not only to deny the request for documents but to refuse either to confirm or deny the existence of the documents. Citing exemption 1, Defense and CIA claimed that either a confirmation or denial of Government involvement in Project Jennifer would jeopardize national security.

Since our first request was filed, the Government has made three significant retreats on its initial claim. Yet, it was not until about 3 months ago that the Government admitted CIA ownership of the explorer. That was over 2 years after the press first broke the story and after our request was first made.

The first retreat was in a tax case in Los Angeles in mid-1975 when the Government claimed ownership of the Explorer for tax purposes and admitted payments to Summa and Global Marine. After the Government released these documents, all that remained secret, and all

1 418 F. Supp. 876 (D.D.C. 1976).

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that we sought, were records on how much the Government spent, how much Summa and Global Marine profited, and whether there were cost overruns on the contract.

The Government, which controls the documents, found it convenient to release a large portion of them when it suited its purposes, when, pursuant to the contract, it sought to protect Summa from financial liability resulting from Jennifer. We believe that, if the other information could have been useful to the tax case, it would have been released as well.

Incredibly, not only were the other documents not released, but, even after the disclosures described above, Defense and CIA continued to refuse acknowledgment of the documents existence.

The second retreat came in May 1976 after we had filed suit, when the Government said that the records "which are the subject matter of this litigation will be kept intact pending the final determination of the litigation.” This was made even as the defendants continued to refuse acknowledgment of the papers' existence.

The third backpedaling, the actual acknowledgement of CIA ownership, so angered the judge in the case that he removed himself from it. Judge Waddy has since been appointed to replace Judge Gesell, and we are virtually starting all over with our suit.

The problems we faced since making our first request have plagued other exemption 1 requests as well. The track record in getting information that military and intelligence agencies do not want to release is miserable. Because the act has not served to force the disclosure of previously classified information, the exemption has not been litigated very often.

There have only been six decisions since February 1975, when the amendments were into effect, involving cases in which exemption 1 was an issue. In four of those cases, the focus of the decision was on other issues or, as in MAP v. Turner, new facts came to light. Of these four, the parties seeking the information won or at least survived the Government's attempt to dismiss the suit in every case.

In the other two cases, exemption 1 was the main issue around which the decision turned. Secrecy prevailed in both cases. As a result of these decisions, the defense and intelligence community continues to act in secrecy. The Freedom of Information Act is merely an annoying gnat. Serious investigations by reporters and public interest groups have been thwarted with the classification stamp.

When requests are denied on the basis of exemption 1, there is a reluctance to go to court. Faced with the precedents of Richardson v. Spahr- and Bennett v. DOD, and with nothing going the other way, newspapers, public interest organizations, and lawyers have shied away from cases involving classified documents.

The courts have not exerted pressure on the agencies to review classification procedures or decisions. If anything, Congress has exacerbated the problems when it, in effect, codified Executive Order 11652 - in exemption 1.

1 For the government's explanation of switch in position see pp. 429-433 of the appendix. General articles on the Glomar case appear at pp. 651-661 of the appendix.

2 416 F. Supp. 752 (W.D. Pa. 1976).
3 419 F. Supp. 663.
• See exhibits 40, 41, 42, pp. 433, 434, 440 of the appendix.

Defense and intelligence agencies are truly controlling the debate on exemption 1. Because of that, they find no reason to live up to the intent of the Freedom of Information Act.

We believe that Congress should force these agencies to honor the spirit of the law and to put them on notice that the classification stamp itself is not sufficient authority to deny FOIA requests. This can be accomplished only by the repeal of exemption 1.

As the situation currently stands, the authority to classify is the same as the authority to withhold classified information under exemption 1. The result is that the decision to deny FOIA requests for documents is made long before the requests are themselves actually made. I should note that repeal would not affect Executive Order 11652 as a means of determining what information should be classified.

While we believe that the defense and intelligence establishment tends to overclassify, we do not suggest that repeal of exemption 1 would result in a wholesale release of previously secret documents. Instead, we believe that agencies would cite other exemptions as authority to withhold requested records. Absent exemption 1, we anticipate that the agencies would cite exemption 3 in combination with provisions of the National Security Act of 1947, the Central Intelligence Agency Act of 1949, and similar laws. These laws contain language protecting some information from unauthorized disclosure.

Litigation over withheld national defense information under exemption 3 would be much more conducive to debate on the classification issue. Rather than determining whether an agency had placed the security stamp on the requested documents, Federal courts would have to face the issue of whether the use of an Executive order to classify were proper and allowable under the laws that govern the agency.

At the same time, the court would determine whether the statute itself were applicable in each case.

Reliance on exemption 3 would give sufficient leverage to the agencies to justify withholding information which they truly believe would imperil national security. We also believe that reliance on exemption 3 would be preferable because it would give Congress more of a voice in determining what types of information should be withheld.

Without exemption 1, the departments and agencies would not be able to deny requests the way they do unless they could justify it on a statutory basis. If they could justify it, then Congress would have, by definition, considered and approved nondisclosure.

This will only happen through repeal of exemption 1. Until Congress takes that step, exemption 1 will serve to negate the legislative intent and procedural requirements of the Freedom of Information Act, and will remain as another bureaucratic weapon in an arsenal of paperwork, delay, and secrecy.?

Thank you very much.
Senator ABOUREZK. Thank you very much, Mr. McGehee.
Your entire written statement will be inserted into the record.3

With respect to your project, what difficulties did your organization have as a requester under the act when appealing a denial of informa

1 See exhibits 58, 59, p. 533 of the appendix.
? See additional statement p. 453 of the appendix.
See prepared statement at p. 61 of the hearing text.

tion, when the Government refused even to acknowledge the existence of the documents that were being sought?

Mr. McGEHEE. We have had several difficulties. Speaking to the case of Military Audit Project v. Turner, one of the things that happened at one point was that the defendants asked for a secret in camera proceeding. This was ordered by Judge Gesell and upheld by the appeals court. The appeals court, I should also note, issued an order which stated that none of the records of the proceeding should be made public.

Our attorneys were not present at the proceeding. The decision that came out of the hearing was a one-line order by Judge Gesell that said that the case was dismissed for reasons stated in camera. The entire record was sealed.

We appealed. We had absolutely no idea of what we were appealing on. We just said, “We appeal.” The defendants were saying things like, “What do you mean you appeal? What are you appealing on?” We said, “We håve absolutely no idea because we don't know what the record is."

This is probably the epitome of the frustrations that we have had with the act. We have had other, similar experiences back on the requesting and appeal level; but that is really the zenith.

Senator ABOUREZK. Do you feel that it is ever appropriate for a government agency to respond to a FOIA request by refusing to acknowledge the existence of documents ?

Mr. McGEHEE. Yes. Senator ABOUREZK. What would those circumstances be? Mr. McGEHEE. We believe that there are not too many pieces of information which should be kept secret. But some types of information should be withheld, such as recipes for making weapons or information on troop movements, like, for example, the Bay of Pigs invasion, even though that did not work out very well. If the FOIA had been around then, we believe that, if a reporter had made a request, the Defense Department and other agencies would have been justified in withholding any knowledge of it.

The point of our case was that we did not even know of the papers' existence until newspapers broke the story a month earlier. If that story had never come out, we would never have filed the initial request for information. When the story did come out, we had an idea that the papers existed. As it turned out, there are 128,000 documents relating to the Glomar Explorer in agency files.

Senator ABOUREZK. In your experience, how frequently does the Government submit an affidavit in court proceedings rather than the documents themselves?

Mr. McGEHEE. Do you mean in court cases or in-
Senator ABOUREZK. Yes; in FOIA court cases.

Mr. McGEHEE. Of the six cases, I believe they submitted affidavits instead of documents, or along with documents which were placed under seal, in four of them. Either four or five; I am not sure of Holperin v. Department of State,1 Mr. Lynch can address that issue.

Senator ABOUREZK. What kind of a problem does this present for the person requesting information ?

1 No. 76-1528.

F. 2d

(D.C. Cir. Aug. 16, 1977).

Mr. McGEHEE. When an agency submits an affidavit, many of the times the affidavit itself is secret. Again, we have absolutely no way of determining how to respond to the issue because we do not know the contents of the affidavit, much less the documents themselves,

We would not be making the request for the information if we already knew what were in the documents.

I hope that answers your question.
Senator ABOUREZK. Senator Thurmond ?
Senator THURMOND. Thank you, Mr. Chairman.

Mr. McGehee, did the Military Audit Project recently request four Rockwell International overhead audit reports relating to the B-1 bomber, on which that company was the prime contractor?

Mr. McGEHEE. I am not personally familiar with the request, but I would not be surprised if we did so.

Senator THURMOND. What was the substance of the inquiry? Mr. McGEHEE. I am not personally familiar with the request, sir.

Senator THURMOND. What position do you occupy with the Military Audit Project?

Mr. McGEHEE. The Military Audit Project at the current time has a staff of three. There is a director, a person who does the administration and follows a lot of our FOIA requests, and I am a staff reporter. I have used the FOIA to request information on stories that I am writing. I then take the information, write it up into stories, and attempt to place it with publications. We are trying to pursue the purposes of our project through the media.

Senator THURMOND. You are not familiar with that request ?

Mr. McGEHEE. No, sir; I am not. I am familiar with other requests, but that particular one, I am not.

Senator THURMOND. Could you get that answer for us and supply it for the record ?

Mr. McGEHEE. I would be glad to.

Senator THURMOND. Then I wanted to ask you, did the Defense Contract Audit Agency (DCAA) respond? You wouldn't know about that either, would you?

Mr. McGEHEE. If you are speaking of the same request, no, sir, I do not.

Senator THURMOND. And what was the substance of their reply. Would you get answers to those questions for us?

Mr. MCGEHEE. Yes, sir, I will provide our request and all responses including any documents that they have submitted to us.

Senator THURMOND. Did the Military Audit Project also request from DCAA an overhead audit report relating to that company's Washington office operations?

Mr. McGEHEE. I seem to recall that, yes, sir. It was released.
Senator THURMOND. It was released to you?

Mr. McGEHEE. Yes; if we are speaking of the same case, it was released.

We made requests for that type of information from the Washington offices of about four or five corporations: Martin Marietta, Northrup, Rockwell, and I do not recall what the other two were. As I recall, the only issue now which is being discussed by our project and by the

2

i See p. 454 of the appendix. . See p. 4R4 of the appendix.

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