Page images

The government's first response was to ask the court to dismiss the complaint. It also made a request to file two secret affidavits.

As it had responded to the FOIA request, the government claimed that national security would be damaged if it admitted that Defense or the CIA either had or did not have the documents.

In refusing the secret affidavits, U.S. District Judge Gerhard Gesell said that ex parte proceedings place the court “in an untenable position which ignores fundamental considerations of due process. Should the Court choose to proceed in camera in its discretion, the citizen is denied access to the papers and as a practical matter neither he nor his counsel have any opportunity to question the factual grounds on which exemption is based."

The court also addressed the classification issue:

There is no indication of when or how the material sought was classified or of the timing, degree or extent of declassification or recent review. There is, moreover, no indication of any effort to separate classified and unclassified information within particular documents or files. Some documentation in the area has already been made public but no explanation is given why the papers released differ from other portions of the same or related papers being withheld. The nature of the security problem asserted is not explained even in broadest hypothetical terms .. An adequate, complete affidavit justifying exemption shall be publicly filed reciting all pertinent facts short of those that reveal any fact which the defendants believe is protected by the exemption claimed."

Judge Gesell again criticized the government's blanket, unsubstantiated reliance upon exemption 1 when he denied a second motion to dismiss. "It is apparent that the withholding is based on a generalized policy decision made prior to plaintiffs' request by persons who had not read the documents and did not know their specific contents."

The court ordered the CIA and Defense to produce for in camera inspection the documents sought by MAP, a witness and an index.

But the government continued to refuse acknowledgement of the papers' existence in a third motion to dismiss.

However, in a report to the court filed May 6, 1976, the government retreated from its initial position a second time. Admitting involvement with the documents, the report said the records "which are the subject matter of this litigation will be kept intact pending the final determination of the litigation.”

Following the denial of the third motion to dismiss, the government appealed to the U.S. Court of Appeals. The appellate court denied the petition and permitted the in camera proceeding, ordered by Judge Gesell, to go forward.

The appeals court also directed the lower court “to issue under seal any further orders requiring production or disclosure."

On October 18, Judge Gesell heard secret testimony and received eight secret affidavits. MAP attorneys were barred from the hearing.

On October 20, Judge Gesell dismissed the case "for reasons stated in camera" and filed a sealed opinion to be locked in the court safe along with documents submitted during the closed hearing.

MAP appealed, asking that the sealed evidence and opinion be released.

The U.S. Court of Appeals noted that the secrecy left MAP “in an extremely difficult position.” Plaintiffs are "unaware of the basis for the decision" to dismiss the complaint, the court said, and are thus "unable to argue intelligently."

But instead of releasing the opinion, the appeals court said the documents were exempt from disclosure under the FOIA and that they had been properly classified under Executive Order 11652, the current order governing classification."

MAP moved for reconsideration, arguing that the secret record had been the determinate factor in dismissing the case. The first three motions to dismiss, our attorneys noted, were denied because information submitted by the defendants on the public record had not satisfied their burden of proof.

Before a final decision on that motion was issued, the National Security Council “re-evaluated" the CIA's role in Project Jennifer, and the agency acknowledged ownership. The Justice Department then admitted to the existence of 128,000 documents relating to the vessel in government files.

This marked the third time the government has backpedaled on its original claims since MAP first filed its FOIA request.

1 See p. 433 of the appendix.

The Government now claims that the contents of the documents are classified, even if the fact of their existence no longer is.

At the request of the Justice Department, the appeals court remanded the case to Judge Gesell for further proceedings. At a June 28 hearing, however, Gesell removed himself from the case because, he said, he would not be able to accept the Government's representations.

Accusing the Justice Department of acting irresponsibly, Gesell said the defendants “made fun" of him during "a game that was played over a period of a year in front of me.

“I heard witnesses,” Gesell told the government's lawyer. "I reviewed documents at your insistence. I made findings of fact. Then as soon as you face the realities of an appellate court, you change your position entirely and take a direct opposite position from what you have been constantly taking in front of me.”

Gesell refused to unseal the secret material pending the selection of another judge.

Since that time, Judge Joseph Waddy has been appointed as a replacement, but to date, no further hearings have been scheduled, and the court record remains sealed.

The problems we've faced since making our first FOIA request have plagued other exemption 1 cases as well. The track record of journalists, public interest groups and others in getting information that military and intelligence agencies don't want to release is miserable. And because the act has not served to force the disclosure of previously-classified information, the exemption has not been litigated very often.

The Records Management Division of the Adjutant General Center of the Department of the Army has prepared a report on the FOIA which summarizes all cases decided by Federal courts since the 1974 amendments took effect, through the end of 1976. According to this report and to several attorneys familiar with cases decided in 1977, there have been only six decisions since February 1975, when the amendments went 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 those four, the party seeking the information won-or at least survived the government's attempts to dismiss the suit-in every case.

In Florence v. Defense Department, 415 F. Supp. 156 (D, D.C. 1976), for example, the plaintiff sought a bibliographical reference document which indexed technical reports prepared for the Pentagon. Most of the reports listed in the index were unclassified; the titles of the remaining reports were rewritten so that they too were unclassified.

However, the Defense Department claimed that the document was properly classified on the grounds that release of all titles in a single index might give a potential enemy useful information on the general thrust of defense research projects.

The U.S. District Court in Washington, D.C. did not determine whether the documents had been properly classified or whether it could be withheld under exemption 1.

Instead, the court cited another provision of the FOIA that directs an agency to separate “any reasonably segregable portion of a record" which may be released from that which is exempt. Saying that this was an "overriding provision in the act," District Judge June Green ordered Defense to release each entry of the index which was unclassified-in other words, the entire document.

In another case, Morton Halperin, former national security aide and current director of the Project on National Security and Civil Liberties, made an FOIA request for a transcript of a background press briefing. The briefing, held in December 1974 by then-Secretary of State Henry Kissinger, gave details on SALT talk negotiations with the Soviet Union.

Under the ground rules of the press conference, the 33 newsmen in attendance-none of whom had a security clearance could not name Kissinger as the source of what they reported.

State released 57 of 59 pages of the transcript. The other two, State said, were heing withheld under exemption 1, because release of the remarks, if attributed to Kissinger, would damage national security.

15 U.S.C. 552(b).






Halperin filed suit challenging the security tag placed on information that had already been publicly released.

On August 16, 1977, the U.S. Court of Appeals ruled in Halperin v. Dept. of State that the use of a background briefing to shield the identity of the source of sensitive information had been improper.

The ruling also faulted State's handling of Halperin's request and said the Department had cited exemption 1 for a purpose that Congress did not contemplate. “Congress has provided no special FOIA exception for the transcripts of such conferences,” the unanimous three-judge panel said.

The court did not, however, release the two pages of the transcript or even rule on the national security claims made by State. Instead, the panel ordered the lower court to hold a secret hearing at which the government could attempt to justify the "confidential” label and to withhold the pages under exemption 1.

The National Security Council re-evaluation and confirmation of CIA ownership of the Glomar Explorer will affect another case besides MAP v. Turner. In Phillippi v. CIA, a journalist for Rolling Stone magazine sought copies of records relating to the agency's efforts to convince the press not to publish stories on the Glomar Explorer and Project Jennifer.

As in our case, the CIA claimed exemption in its refusal to confirm or deny the existence of the requested documents.

The merits of the case have not been decided, but the Court of Appeals ruled in November 1976—before the NSC re-evaluation—that the CIA should be required to provide a public affidavit explaining in as much detail as possible the basis for its claims.

* In the two other cases involving exemption 1 decided by the courts, it was the main issue around which the decision turned. Secrecy prevailed in both cases.

In Richardson v. Spahr, 416 F. Supp. 752, (W.D. Pa., 1976) the plaintiff requested copies of the budget and other financial information on the CIA. Both the Treasury Department and the agency itself refused to disclose the records, citing exemptions 1 and 3 ("information ... specifically exempted from disclosure by statute").

The U.S. District Court for Western Pennsylvania found that the financial information could be withheld under several provisions of law, including the act which chartered the CIA. That finding alone, said Judge Wallace Gourley, was sufficient to deny the request.

But the court went on to address, and to endorse the exemption 1 claim. After reviewing the record, the judge found that the agencies involved complied with procedural requirements in classifying the documents as secret.

In Bennett v. Department of Defense, 419 F. Supp. 663, the plaintiff requested copies of all documents relating to military missions “having the objective of introducing men or materiel into the Republic of Cuba" after Castro took power in 1959.

The Defense Department, acting in concurrence with the CIA and the National Security Council, denied the request citing exemptions 1, 3, and 5 (“interagency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency”).

As in Richardson, the U.S. District Court in New York said the other cited exemptions were applicable, but gave special attention to exemption 1.

The court did not review the documents in camera, as permitted under the 1974 amendments to the FOIA, Instead, Judge Lloyd MacMahon relied upon affidavits submitted by the Defense Department and found that the records had been classified properly, both procedurally and substantively.

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. Embarrassing and illegal acts have been hidden under the cloak of exemption 1.

The use of the exemption is common. Examples of the requests which have been made by our organization alone in recent months and which were denied on the basis of the exemption include:

[blocks in formation]

A listing of defense supplies that the Iranian government unsuccessfully tried to purchase from U.S. military stockpiles and production lines since 1972;

The agreements reached by Lockheed Aircraft Corp., the Defense Department and the Canadian government which allow Canadian co-production of the Lockheed P-3 antisubmarine warfare patrol plane; and

A memorandum prepared for the National Security Council of Soviet civil defense. (The findings of the memorandum, which seem to contradict findings by published Pentagon studies, is that the Soviet Union is not engaged in a crash program to bolster its ability to survive a nuclear war.)

Many of the journalists who cover the Pentagon on a daily basis rarely use the FOIA to get any information because of time pressures and deadlines. Several reporters I've talked with about FOIA problems said they'll stick with old journalistic trademarks of wheedling and cajoling, rather than waiting around to see if an FOIA request will be granted.

The reporters also said that the wait isn't worth it. Despite exhortations in the act and in administrative regulations to the contrary, they said, records with a security stamp are not often declassified as a result of FOIA requests. Because of that, the material now released under the FOIA has always been available to the press. The law merely formalizes the way military and intelligence officialdom accepts, processes—and delaysrequests for information.

And when the requests are denied on the basis of exemption 1, there is a re luctance to go to court. Faced with the precedents of Richardson and Bennettand 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. And if anything, Congress has exacerbated the problem when it, in effect, codified Executive Order 116521 in exemption 1.

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 Free dom of Information Act.

[ocr errors]

We believe that Congress should force these agencies to honor the spirit of the law, 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-Executive Order 11652—is the same as the authority to withhold classified information under exemption 1. The result is that the decision to deny FOIA requests for a document is made long before the request for release is made. And even though the FOIA provides for review of classified materials, again, only the repeal of exemption 1 will force the agencies to make that review.

Repeal would not affect Executive Order 11652 as a means of determining what information should be classified. As I said earlier, we believe that the defense and intelligence establishment tends to overclassify, but we do not suggest that repeal of exemption 1 would result in a wholesale release of previously-secret documents. To evoke a Watergate image, we are not planning to back up a U-Haul truck to the front door of the Pentagon.

Instead, we believe that agencies would cite other exemptions as authority to withhold requested records.

Exemption 3, as amended in 1976, allows non-disclosure of information "specifically exempted ... by statute . provided that such statute (A) requires that matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matter to be withheld.”

Absent exemption 1, we anticipate that the agencies would cite exemption 3 in combination with provisions of the National Security Act of 1947. 50 U.S.C. 403(d) (3), the Central Intelligence Agency Act of 1949, 50 U.S.C. 403(g), and similar laws.

These provisions contain language protecting some information from unauthorized disclosure.

Litigation over withheld defense information under exemption 3 would be much more conducive to debate on the classification issue. Rather than determining whether an agency had placed a security stamp on the requested document, Federal courts would have to face the issue of whether the use of an Er.

1 See p. 433 of the appendix.
? See exhibits 58, 59, p. 533 of the appendix.

ecutive order to classify the information were proper and allowable under the laws that govern the agency. At the same time, the courts would determine whether the statute itself were applicable in each case.

In other words, repeal of exemption 1 would finally place the burden on the government to substantiate the reasons for nondisclosure of classified information, a burden that was spelled out by the act but which to date has not been assumed by executive agencies nor enforced by the courts.

Repeal would result in closer scrutiny by the agencies of their records and, if litigated, would promote open, sober dialogue of the classification issue by the courts.

Reliance on exemption 3 would give sufficient leverage to the agencies to justify withholding information which they truly believe would imperial national security. As mentioned before, the U.S. District Court said in Richardson that the Central Intelligence Agency Act prevented disclosure, even absent exemption 1.

The same is true for Bennett, the decision being based in part on exemption 3 and the National Security Act.

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.

Responding to several FOIA requests made by MAP, for example, State and Defense have said that Executive Order 11652 allowed them to classify information if a request for that classification were made by a foreign government.

In taking this action, the executive branch made policy on an issue that should be discussed in a public forum. But because it was promulgated in the vacuum of agency interpretation of an Executive order, Congress had no opportunity to debate it. In addition, there is no indication of whether Congress intended or contemplated such information to be withheld when it passed the act.

Without exemption 1, the departments would not have been able to respond to our requests the way they did, unless they could justify it on a statutory basis. And 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.

Senator ABOUREZK. Next is the agency panel of witnesses: John Blake, Acting Director of the CIA; Anthony Lapham, General Counsel, CIA; Barbara Ennis, Director, FOI Office, Department of State; Thomas J. Ramsey, attorney adviser; and Mark Feldman, Deputy Legal Adviser, Department of State.

Please stand, raise your right hand, and be sworn.

Do each of you swear that you will give the whole truth and nothing but the truth in the testimony you are about to give, so help you God?

Mr. BLAKE. Yes.
Mr. LAPHAM. Yes.
Ms. ENNIS. Yes.
Mr. RAMSEY. Yes.
Senator ABOUREZK. Mr. Blake?



Mr. BLAKE. Thank you, Mr. Chairman.

My name is John Blake. I am currently serving as the Acting Director of Central Intelligence in the absence of Admiral Turner, who is away on a trip.

« PreviousContinue »