FOIA
FOIA, exempts "intelligence sources" from disclosure.
Sun Oct 23, 2005 21:48
64.140.158.81
FOIA, exempts "intelligence sources" from disclosure.
http://www.usdoj.gov/osg/briefs/1983/sg830018.txt
CENTRAL INTELLIGENCE AGENCY AND WILLIAM J. CASEY, DIRECTOR OF
CENTRAL INTELLIGENCE, PETITIONERS V. JOHN CARY SIMS AND SIDNEY M.
WOLFE
No. 83-1075
In the Supreme Court of the United States
October Term, 1983
On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit
Brief for the Petitioners
TABLE OF CONTENTS
Opinions below
Jurisdiction
Statutory provisions involved
Statement
Summary of argument
Argument:
The Freedom of Information Act does not require
the Central Intelligence Agency to disclose the
identities of sources of intelligence-related
information
A. The term "intelligence sources" should be
given its plain meaning
B. The court of appeals' definition of
"intelligence sources" produces results that
Congress could not have intended
Conclusion
Appendix
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-16a) is reported
at 709 F.2d 95. The opinions and order of the district court (Pet.
App. 21a-34a) are unreported. An earlier opinion of the court of
appeals (Pet. App. 35a-64a) is reported at 642 F.2d 562. One of the
earlier opinions of the district court (Pet. App. 73a-93a) is reported
at 479 F. Supp. 84; the other earlier opinions and orders of the
district court (Pet. App. 66a-72a, 94a-97a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on June 10, 1983
(Pet. App. 19a-20a). A petition for rehearing was denied on August
17, 1983 (Pet. App. 17a). On November 9, 1983, the Chief Justice
extended the time in which to file a petition for a writ of certiorari
to December 15, 1983, and on December 5, 1983, the Chief Justice
further extended the time in which to file a petition for a writ of
certiorari to December 29, 1983. The petition was filed on that date
and was granted on March 5, 1984. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Portions of the Freedom of Information Act, 5 U.S.C. 552, the
National Security Act of 1947, 50 U.S.C. 401 et seq., and the Central
Intelligence Agency Act of 1949, 50 U.S.C. 403a et seq., are
reproduced at App., infra, 1a-3a.
QUESTION PRESENTED
Whether the Central Intelligence Agency must disclose the identity
of a source of intelligence information under the Freedom of
Information Act whenever it cannot demonstrate that it had to
guarantee confidentiality in order to obtain the kind of information
that the source supplied, even though Section 102(d)(3) of the
National Security Act of 1947, as incorporated in Exemption 3 of the
FOIA, exempts "intelligence sources" from disclosure.
STATEMENT
1. Respondents, invoking the Freedom of Information Act (FOIA), 5
U.S.C. 552, filed a request with the Central Intelligence Agency
seeking certain information about a CIA project known as MKULTRA.
MKULTRA was initiated in the 1950's in "response to possible use by
the Soviets and the Chinese of chemical and biological agents as
instruments of interrogation and brainwashing" (Pet. App. 37a
(footnote omitted); see id. at 73a). The project involved "research
into 'chemical, biological and radiological materials capable of
employment in clandestine operations to control human behavior'" (id.
at 21a (footnote and citation omitted)). See also Pet. App. 89a
(affidavit of Director of Central Intelligence Turner).
MKULTRA research was conducted by a large number of private
scientists, in the United States and abroad, affiliated with
universities, research foundations, and similar institutions (Pet.
App. 66a, 89a). At least 80 institutions and 185 private researchers
participated (id. at 36a). A total of 149 subprojects were funded by
the CIA (I C.A. App. 14-61). /1/
Most of these subprojects involved legitimate research into a
variety of chemical, biological, psychological, and sociological
subjects. In a few of the subprojects, researchers surreptitiously
administered drugs to unwitting subjects. This wholly improper
conduct is now expressly forbidden by executive order. Exec. Order
No. 12,333, Section 2.10, 46 Fed. Reg. 59941, 59952 (1981). See also
Project MKULTRA, the CIA's Program of Research in Behavioral
Modification: Joint Hearing Before the Select Comm. on Intelligence
and the Subcomm. on Health and Scientific Research of the Senate Comm.
on Human Resources, 95th Cong., 1st Sess. 16, 17, 35 (1977) (Testimony
of Director of Central Intelligence Turner) (hereinafter cited as
Project MKULTRA Hearing). The CIA has attempted to notify the persons
who were unwittingly subjected to tests. See id. at 36.
The MKULTRA project was examined in 1963 in a report from the
Inspector General of the CIA to the Director of Central Intelligence
(II C.A. App. 118-145). Subsequently, congressional committees and a
Presidential commission thoroughly examined the project, taking
extensive testimony from both the Director of Central Intelligence and
the former CIA personnel who had supervised the project. These
inquiries gave "broad publicity" (Pet. App. 37a) to MKULTRA and the
allegations of abuses connected with it. See S. Rep. 94-755, 94th
Cong., 2d Sess., Bk. I, at 389-392 (1976); Report to the President by
the Commission on CIA Activities Within the United States 226 (June
1975); Human Drug Testing by the CIA, 1977: Hearings on S. 1893
Before the Subcomm. on Health and Scientific Research of the Senate
Comm. on Human Resources, 95th Cong., 1st Sess. (1977); Project
MKULTRA Hearing, supra.
2. Respondents sought the grant proposals and contracts awarded
under the MKULTRA program and the names of the institutions and
individuals that performed research. The CIA made available to
respondents all of the grant proposals and contracts. The CIA also
contacted the institutions that had performed research, and
approximately two-thirds of them voluntarily disclosed their
identities to the public. The Agency accordingly disclosed them to
respondents. Pet. App. 39a, 73a-74a.
The CIA cited Exemptions 3 and 6 of the FOIA, 5 U.S.C. 552(b)(3)
and (6), as the bases for not releasing the names of the other
institutions and the individual researchers. /2/ Only the Exemption 3
claim is now at issue. Exemption 3 of the FOIA provides that an
agency need not disclose "matters that are * * * specifically exempted
from disclosure by statute * * * provided that such statute * * *
refers to particular types of matters to be withheld" (5 U.S.C.
552(b)(3)(B)). The statute on which the CIA relied is Section
102(d)(3) of the National Security Act of 1947, 50 U.S.C. 403(d)(3).
Section 403(d)(3) provides in part:
(T)he Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from
unauthorized disclosure * * *.
3. Respondents then brought this action under the FOIA in the
United States District Court for the District of Columbia. See 5
U.S.C. 552(a)(4)(B). They sought to compel disclosure of the names
withheld by the CIA. The district court ordered disclosure of these
names, apparently reasoning that the term "intelligence sources" in 50
U.S.C. 403(d)(3) did not include the MKULTRA researchers, of if it
did, Section 403(d)(3) was not specific enough to qualify as an
Exemption 3 statute (see Pet. App. 77a-79a).
The court of appeals vacated the district court's order and
remanded for reconsideration (Pet. App. 35a-64a). The court observed
that it had consistently held that Section 403(d)(3) "qualifies as a
withholding statute under Exemption 3" (id. at 44a). The court also
noted that in its numerous previous decisions dealing with Exemption 3
and Section 403(d)(3), it had assumed that the phrase "intelligence
sources and methods" has "a plain meaning" (ibid.). But upon further
consideration of the "relevant statutory enactments" (see id. at 47a)
-- which the court identified as the FOIA, the National Security Act
of 1947, and the Central Intelligence Agency Act of 1949, 50 U.S.C.
403a et seq. -- the court concluded that the phrase "intelligence
sources and methods" is in fact "ambiguous" (Pet. App. 49a) and must
be interpreted in a way that reflects "Congress's sensitivity to the
need for discrimination in identifying particular types of matters
exempted from disclosure" (id. at 47a).
The court of appeals acknowledged that the CIA's proposed
definition of "intelligence sources" -- essentially, individuals or
entities that provide intelligence information (see Pet. App. 46a) --
was a supportable interpretation of the phrase. But instead of
accepting this definition, the court decided that "(a)nalysis should *
* * focus on the practical necessity of secrecy * * * (and should)
avoid an overbroad discretionary standard" (id. at 50a). The court
then concluded (ibid.):
(A)n "intelligence source" is a person or institution that
provides, has provided, or has been engaged to provide the CIA
with information of a kind the Agency needs to perform its
intelligence function effectively, yet could not reasonably
expect to obtain without guaranteeing the confidentiality of
those who provide it.
Judge Markey, in an opinion concurring in part and dissenting in
part, urged that the district court's rejection of the Agency's
Exemption 3 claim be affirmed but remarked (Pet. App. 62a): "Whatever
may be said of the wisdom or morality of the MKULTRA program and its
operation, the Agency's need for the research data "to perform its
intelligence function effectively' has not been challenged on this
record."
4. On remand, the district court began by explicitly rejecting
respondents' contention that the MKULTRA research was not "needed to
perform the CIA's intelligence function" (Pet. App. 22a). The court
explained (id. at 22a-23a): "In view of the agency's concern that
potential foreign enemies could be engaged in similar research and the
desire to take effective counter-measures, * * * (the Agency) could
reasonably determine that this research was needed for its
intelligence function." The district court also rejected respondents'
contention that some of the researchers were not intelligence sources
because they provided "materials or supplies," rather than
"information," to the CIA (id. at 22a); the court reasoned that "it
is irrelevant whether a source tells the CIA how to synthesize a
substance or synthesizes the substance itself and sells it to the CIA
(because) in either case, what is essentially being provided is
information" (ibid.).
The district court then turned to the question whether the CIA
could show, as the court of appeals' definition requires, that it
could not reasonably have expected to obtain the information supplied
by the MKULTRA sources without guaranteeing confidentiality to them
(Pet. App. 23a). The district court acknowledged that the Agency
considered the relationships between it and the MKULTRA researchers to
be confidential (ibid.). The district court further noted that "(f)or
understandable reasons, the Agency wished its interest in this subject
matter kept secret, and feared that disclosure would jeopardize its
ability to continue its research" (id. at 24a). But the district
court ruled that this was not sufficient to satisfy the court of
appeals' test because "the chief desire for confidentiality was on the
part of the CIA. * * * (C)onfidentiality was normally guaranteed * *
* solely to protect the CIA" (ibid.). In addition, the court
remarked, many MKULTRA projects involved research that "goes on
constantly at many places" and therefore "could have been done without
a guarantee of confidentiality" (id. at 26a).
After reviewing the Agency's submissions about particular cases,
the district court found that some of the researchers had sought, and
received, express promises of confidentiality from the Agency. The
court ruled that the identities of these researchers and the
institutions with which they had been associated need not be disclosed
(Pet. App. 26a). The district court also exempted other researchers
from disclosure for various reasons (see id. at 26a-27a), 30a-31a).
In total, the court ordered the disclosure of the names of 47 of the
researchers and the institutions with which they had been affiliated
(id. at 21a-34a).
5. Both sides appealed, and a divided panel of the court of appeals
reversed the district court's "determination regarding which of the
individual researchers satisfy the 'need-for-confidentiality' portion
of the definition of 'intelligence source' promulgated in" the court
of appeals' earlier opinion. The court affirmed the district court's
ruling in other respects. Pet. App. 11a.
The court of appeals peremptorily rejected the Agency's suggestion
that it reconsider the portion of the definition requiring the Agency
to show that it had to guarantee confidentiality in order to obtain
the information supplied by a source (Pet. App. 4a). Instead, the
court of appeals criticized the district court for not following this
aspect of the definition closely enough. The court of appeals
remarked that "the (district) court's attention to questions of this
order was deflected by its interest in whether the agency had, in
fact, promised confidentiality to individual researchers" (id. at 5a).
The court of appeals held that the district court's decision
automatically to exempt from disclosure those researchers to whom the
CIA had promised confidentiality was erroneous: "Proof that the CIA
did or did not make promises of secrecy (either express or tacit) to
specific informants * * * (cannot) be dispositive of the question
whether a given informant qualifies as an 'intelligence source'" (id.
at 6a).
Specifically, the court of appeals ruled that even a source of
intelligence information who received an express promise of
confidentiality would have to be revealed if the source requested such
a promise only because he was "unreasonably and atypically leery of
providing the agency with innocuous information" (Pet. App. 6a). The
court reasoned that "if the agency readily and openly could have
obtained, from other sources, data of the sort (such a source)
provided, he would not constitute an 'intelligence source'" (ibid.
(footnote omitted)). The court also remarked that allowing the Agency
to refuse to disclose the identities of all sources of intelligence
that requested confidentiality could permit "widespread evasion of the
letter and spirit of the FOIA" (id. at 7a) because it "would (be) * *
* easy for the agency" to suggest to intelligence sources "that they
sign a form expressing their desire for secrecy" (id. at 6a n.7).
Judge Bork wrote a separate opinion, concurring in part and
dissenting in part (Pet. App. 12a-16a). He criticized several aspects
of the court of appeals' definition of "intelligence sources," urging
in particular that there is "no reason to think that section 403(d)(3)
was meant to protect sources of information only if secrecy was needed
in order to obtain the information." Specifically, Judge Bork
explained, "(t)he mere fact that the CIA pursues certain inquiries
tells our adversaries much that there is no reason to think Congress
intended them to know." He reasoned that "(o)ne need not be an expert
in intelligence work to know that it is often possible to deduce what
a person is doing, thinking, or planning by knowing what question he
is asking or what information he is gathering. That is true even when
the answers and information are publicly available." Id. at 15a.
Judge Bork also strongly criticized the majority
http://www.usdoj.gov/osg/briefs/1983/sg830018.txt
CENTRAL INTELLIGENCE AGENCY AND WILLIAM J. CASEY, DIRECTOR OF
CENTRAL INTELLIGENCE, PETITIONERS V. JOHN CARY SIMS AND SIDNEY M.
WOLFE
No. 83-1075
In the Supreme Court of the United States
October Term, 1983
On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit
Brief for the Petitioners
TABLE OF CONTENTS
Opinions below
Jurisdiction
Statutory provisions involved
Statement
Summary of argument
Argument:
The Freedom of Information Act does not require
the Central Intelligence Agency to disclose the
identities of sources of intelligence-related
information
A. The term "intelligence sources" should be
given its plain meaning
B. The court of appeals' definition of
"intelligence sources" produces results that
Congress could not have intended
Conclusion
Appendix
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-16a) is reported
at 709 F.2d 95. The opinions and order of the district court (Pet.
App. 21a-34a) are unreported. An earlier opinion of the court of
appeals (Pet. App. 35a-64a) is reported at 642 F.2d 562. One of the
earlier opinions of the district court (Pet. App. 73a-93a) is reported
at 479 F. Supp. 84; the other earlier opinions and orders of the
district court (Pet. App. 66a-72a, 94a-97a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on June 10, 1983
(Pet. App. 19a-20a). A petition for rehearing was denied on August
17, 1983 (Pet. App. 17a). On November 9, 1983, the Chief Justice
extended the time in which to file a petition for a writ of certiorari
to December 15, 1983, and on December 5, 1983, the Chief Justice
further extended the time in which to file a petition for a writ of
certiorari to December 29, 1983. The petition was filed on that date
and was granted on March 5, 1984. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Portions of the Freedom of Information Act, 5 U.S.C. 552, the
National Security Act of 1947, 50 U.S.C. 401 et seq., and the Central
Intelligence Agency Act of 1949, 50 U.S.C. 403a et seq., are
reproduced at App., infra, 1a-3a.
QUESTION PRESENTED
Whether the Central Intelligence Agency must disclose the identity
of a source of intelligence information under the Freedom of
Information Act whenever it cannot demonstrate that it had to
guarantee confidentiality in order to obtain the kind of information
that the source supplied, even though Section 102(d)(3) of the
National Security Act of 1947, as incorporated in Exemption 3 of the
FOIA, exempts "intelligence sources" from disclosure.
STATEMENT
1. Respondents, invoking the Freedom of Information Act (FOIA), 5
U.S.C. 552, filed a request with the Central Intelligence Agency
seeking certain information about a CIA project known as MKULTRA.
MKULTRA was initiated in the 1950's in "response to possible use by
the Soviets and the Chinese of chemical and biological agents as
instruments of interrogation and brainwashing" (Pet. App. 37a
(footnote omitted); see id. at 73a). The project involved "research
into 'chemical, biological and radiological materials capable of
employment in clandestine operations to control human behavior'" (id.
at 21a (footnote and citation omitted)). See also Pet. App. 89a
(affidavit of Director of Central Intelligence Turner).
MKULTRA research was conducted by a large number of private
scientists, in the United States and abroad, affiliated with
universities, research foundations, and similar institutions (Pet.
App. 66a, 89a). At least 80 institutions and 185 private researchers
participated (id. at 36a). A total of 149 subprojects were funded by
the CIA (I C.A. App. 14-61). /1/
Most of these subprojects involved legitimate research into a
variety of chemical, biological, psychological, and sociological
subjects. In a few of the subprojects, researchers surreptitiously
administered drugs to unwitting subjects. This wholly improper
conduct is now expressly forbidden by executive order. Exec. Order
No. 12,333, Section 2.10, 46 Fed. Reg. 59941, 59952 (1981). See also
Project MKULTRA, the CIA's Program of Research in Behavioral
Modification: Joint Hearing Before the Select Comm. on Intelligence
and the Subcomm. on Health and Scientific Research of the Senate Comm.
on Human Resources, 95th Cong., 1st Sess. 16, 17, 35 (1977) (Testimony
of Director of Central Intelligence Turner) (hereinafter cited as
Project MKULTRA Hearing). The CIA has attempted to notify the persons
who were unwittingly subjected to tests. See id. at 36.
The MKULTRA project was examined in 1963 in a report from the
Inspector General of the CIA to the Director of Central Intelligence
(II C.A. App. 118-145). Subsequently, congressional committees and a
Presidential commission thoroughly examined the project, taking
extensive testimony from both the Director of Central Intelligence and
the former CIA personnel who had supervised the project. These
inquiries gave "broad publicity" (Pet. App. 37a) to MKULTRA and the
allegations of abuses connected with it. See S. Rep. 94-755, 94th
Cong., 2d Sess., Bk. I, at 389-392 (1976); Report to the President by
the Commission on CIA Activities Within the United States 226 (June
1975); Human Drug Testing by the CIA, 1977: Hearings on S. 1893
Before the Subcomm. on Health and Scientific Research of the Senate
Comm. on Human Resources, 95th Cong., 1st Sess. (1977); Project
MKULTRA Hearing, supra.
2. Respondents sought the grant proposals and contracts awarded
under the MKULTRA program and the names of the institutions and
individuals that performed research. The CIA made available to
respondents all of the grant proposals and contracts. The CIA also
contacted the institutions that had performed research, and
approximately two-thirds of them voluntarily disclosed their
identities to the public. The Agency accordingly disclosed them to
respondents. Pet. App. 39a, 73a-74a.
The CIA cited Exemptions 3 and 6 of the FOIA, 5 U.S.C. 552(b)(3)
and (6), as the bases for not releasing the names of the other
institutions and the individual researchers. /2/ Only the Exemption 3
claim is now at issue. Exemption 3 of the FOIA provides that an
agency need not disclose "matters that are * * * specifically exempted
from disclosure by statute * * * provided that such statute * * *
refers to particular types of matters to be withheld" (5 U.S.C.
552(b)(3)(B)). The statute on which the CIA relied is Section
102(d)(3) of the National Security Act of 1947, 50 U.S.C. 403(d)(3).
Section 403(d)(3) provides in part:
(T)he Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from
unauthorized disclosure * * *.
3. Respondents then brought this action under the FOIA in the
United States District Court for the District of Columbia. See 5
U.S.C. 552(a)(4)(B). They sought to compel disclosure of the names
withheld by the CIA. The district court ordered disclosure of these
names, apparently reasoning that the term "intelligence sources" in 50
U.S.C. 403(d)(3) did not include the MKULTRA researchers, of if it
did, Section 403(d)(3) was not specific enough to qualify as an
Exemption 3 statute (see Pet. App. 77a-79a).
The court of appeals vacated the district court's order and
remanded for reconsideration (Pet. App. 35a-64a). The court observed
that it had consistently held that Section 403(d)(3) "qualifies as a
withholding statute under Exemption 3" (id. at 44a). The court also
noted that in its numerous previous decisions dealing with Exemption 3
and Section 403(d)(3), it had assumed that the phrase "intelligence
sources and methods" has "a plain meaning" (ibid.). But upon further
consideration of the "relevant statutory enactments" (see id. at 47a)
-- which the court identified as the FOIA, the National Security Act
of 1947, and the Central Intelligence Agency Act of 1949, 50 U.S.C.
403a et seq. -- the court concluded that the phrase "intelligence
sources and methods" is in fact "ambiguous" (Pet. App. 49a) and must
be interpreted in a way that reflects "Congress's sensitivity to the
need for discrimination in identifying particular types of matters
exempted from disclosure" (id. at 47a).
The court of appeals acknowledged that the CIA's proposed
definition of "intelligence sources" -- essentially, individuals or
entities that provide intelligence information (see Pet. App. 46a) --
was a supportable interpretation of the phrase. But instead of
accepting this definition, the court decided that "(a)nalysis should *
* * focus on the practical necessity of secrecy * * * (and should)
avoid an overbroad discretionary standard" (id. at 50a). The court
then concluded (ibid.):
(A)n "intelligence source" is a person or institution that
provides, has provided, or has been engaged to provide the CIA
with information of a kind the Agency needs to perform its
intelligence function effectively, yet could not reasonably
expect to obtain without guaranteeing the confidentiality of
those who provide it.
Judge Markey, in an opinion concurring in part and dissenting in
part, urged that the district court's rejection of the Agency's
Exemption 3 claim be affirmed but remarked (Pet. App. 62a): "Whatever
may be said of the wisdom or morality of the MKULTRA program and its
operation, the Agency's need for the research data "to perform its
intelligence function effectively' has not been challenged on this
record."
4. On remand, the district court began by explicitly rejecting
respondents' contention that the MKULTRA research was not "needed to
perform the CIA's intelligence function" (Pet. App. 22a). The court
explained (id. at 22a-23a): "In view of the agency's concern that
potential foreign enemies could be engaged in similar research and the
desire to take effective counter-measures, * * * (the Agency) could
reasonably determine that this research was needed for its
intelligence function." The district court also rejected respondents'
contention that some of the researchers were not intelligence sources
because they provided "materials or supplies," rather than
"information," to the CIA (id. at 22a); the court reasoned that "it
is irrelevant whether a source tells the CIA how to synthesize a
substance or synthesizes the substance itself and sells it to the CIA
(because) in either case, what is essentially being provided is
information" (ibid.).
The district court then turned to the question whether the CIA
could show, as the court of appeals' definition requires, that it
could not reasonably have expected to obtain the information supplied
by the MKULTRA sources without guaranteeing confidentiality to them
(Pet. App. 23a). The district court acknowledged that the Agency
considered the relationships between it and the MKULTRA researchers to
be confidential (ibid.). The district court further noted that "(f)or
understandable reasons, the Agency wished its interest in this subject
matter kept secret, and feared that disclosure would jeopardize its
ability to continue its research" (id. at 24a). But the district
court ruled that this was not sufficient to satisfy the court of
appeals' test because "the chief desire for confidentiality was on the
part of the CIA. * * * (C)onfidentiality was normally guaranteed * *
* solely to protect the CIA" (ibid.). In addition, the court
remarked, many MKULTRA projects involved research that "goes on
constantly at many places" and therefore "could have been done without
a guarantee of confidentiality" (id. at 26a).
After reviewing the Agency's submissions about particular cases,
the district court found that some of the researchers had sought, and
received, express promises of confidentiality from the Agency. The
court ruled that the identities of these researchers and the
institutions with which they had been associated need not be disclosed
(Pet. App. 26a). The district court also exempted other researchers
from disclosure for various reasons (see id. at 26a-27a), 30a-31a).
In total, the court ordered the disclosure of the names of 47 of the
researchers and the institutions with which they had been affiliated
(id. at 21a-34a).
5. Both sides appealed, and a divided panel of the court of appeals
reversed the district court's "determination regarding which of the
individual researchers satisfy the 'need-for-confidentiality' portion
of the definition of 'intelligence source' promulgated in" the court
of appeals' earlier opinion. The court affirmed the district court's
ruling in other respects. Pet. App. 11a.
The court of appeals peremptorily rejected the Agency's suggestion
that it reconsider the portion of the definition requiring the Agency
to show that it had to guarantee confidentiality in order to obtain
the information supplied by a source (Pet. App. 4a). Instead, the
court of appeals criticized the district court for not following this
aspect of the definition closely enough. The court of appeals
remarked that "the (district) court's attention to questions of this
order was deflected by its interest in whether the agency had, in
fact, promised confidentiality to individual researchers" (id. at 5a).
The court of appeals held that the district court's decision
automatically to exempt from disclosure those researchers to whom the
CIA had promised confidentiality was erroneous: "Proof that the CIA
did or did not make promises of secrecy (either express or tacit) to
specific informants * * * (cannot) be dispositive of the question
whether a given informant qualifies as an 'intelligence source'" (id.
at 6a).
Specifically, the court of appeals ruled that even a source of
intelligence information who received an express promise of
confidentiality would have to be revealed if the source requested such
a promise only because he was "unreasonably and atypically leery of
providing the agency with innocuous information" (Pet. App. 6a). The
court reasoned that "if the agency readily and openly could have
obtained, from other sources, data of the sort (such a source)
provided, he would not constitute an 'intelligence source'" (ibid.
(footnote omitted)). The court also remarked that allowing the Agency
to refuse to disclose the identities of all sources of intelligence
that requested confidentiality could permit "widespread evasion of the
letter and spirit of the FOIA" (id. at 7a) because it "would (be) * *
* easy for the agency" to suggest to intelligence sources "that they
sign a form expressing their desire for secrecy" (id. at 6a n.7).
Judge Bork wrote a separate opinion, concurring in part and
dissenting in part (Pet. App. 12a-16a). He criticized several aspects
of the court of appeals' definition of "intelligence sources," urging
in particular that there is "no reason to think that section 403(d)(3)
was meant to protect sources of information only if secrecy was needed
in order to obtain the information." Specifically, Judge Bork
explained, "(t)he mere fact that the CIA pursues certain inquiries
tells our adversaries much that there is no reason to think Congress
intended them to know." He reasoned that "(o)ne need not be an expert
in intelligence work to know that it is often possible to deduce what
a person is doing, thinking, or planning by knowing what question he
is asking or what information he is gathering. That is true even when
the answers and information are publicly available." Id. at 15a.
Judge Bork also strongly criticized the majority
- (Cont'd) FOIA, exempts "intelligence sources" from disclosu —FOIA, Sun Oct 23 21:50
- (Cont'd) FOIA, exempts "intelligence sources" from disclosu —FOIA, Sun Oct 23 21:53
- Iraq Confidential: The Untold Story of the Intelligence —by Scott Ritter, Mon Oct 24 02:15
Message Board by American Patriot Friends Network [APFN]
