Intell Bills Expand Secrecy

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October 22, 2004

Congress is expanding a particularly powerful exemption to the landmark Freedom of Information Act (FOIA) through intelligence reorganization bills in the House and Senate--and as far as anyone can tell, doesn't even know it. Read this memo by the Center for National Security Studies for the legalese, but the gist of what's happening is as follows: Currently, the CIA can deny FOIA requests based on an exemption that allows them to do so without meaningful judicial review. The Director of Central Intelligence (DCI) can utilize this exemption because of the legislated duty to �protect intelligence sources and methods from unauthorized disclosure.� The Supreme Court has interpreted this phrase to mean that the CIA is exempt from FOIA because the CIA is "specifically exempted from disclosure by statute"--which is the (b)(3) FOIA exemption. The CIA has applied the exemption to entire categories of documents, including the total intelligence budget amount. Other intelligence agencies can currently use the (b)(3) exemption as long as specific legislation allowing them to do so is passed. For example, the controversial Critical Infrastructure Information exemption in the Homeland Security Act of 2002 falls under the rubric of (b)(3). The new intelligence legislation creates a National Intelligence Director (NID), who will have some authority over the entire intelligence community. Additionally--and this is key--the legislated duty of the DCI to protect "intelligence sources and methods from unauthorized disclosure� is transferred to the new NID. Since the DCI can utilize (b)(3) over the entity underneath him or her--the CIA--it is reasonable to conclude that the NID can use (b)(3) over the entities they oversee--the entire intelligence community. As Kate Martin says in the memo above:

"The result would be a substantial infringement on the FOIA�s protection for the public�s right to know. This is particularly troubling in light of the bill�s expansion of the NID�s authority beyond traditional CIA concerns to domestic intelligence matters going to the core of Americans� civil liberties. The FBI and Justice Department for example, withheld the list of names of those secretly arrested in the wake of 9/11 under exemption (b)(7), claiming that providing the names would reveal its terrorism investigation methods. If the pending language is enacted, such a list could be claimed as intelligence methods under (b)(3) and no court will even have the opportunity to require a justification for such secrecy."

There are certain legitimate application of (b)(3) (for instance, prohibiting the public disclosure of tax returns), but if, under the new legislation, (b)(3) may conceal government information that should be accessible. As is currently the case, specific legislation should be required allow the use of (b)(3). However, the intelligence bill, as it stands now, allows the use of (b)(3) throughout the intelligence community in one fell swoop. Moreover, it will be done without public debate. The 9/11 Commission report says,

"Secrecy, while necessary, can also harm oversight. The overall budget of the intelligence community is classified, as are most of its activities. Thus, the [Congressional] Intelligence committees cannot take advantage of democracy�s best oversight mechanism: public oversight. This makes them significantly different from other congressional oversight committees, which are often spurred into action by the work of investigative journalists and watchdog organizations.�

Ironically, intelligence reform legislation sparked by the 9/11 Commission report could actually increase secrecy. This is a change prone to abuse with serious implications for civil rights, freedom of information, congressional oversight, and the ability of the public to hold government accountable.

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