FOIA
(Cont'd) FOIA, exempts "intelligence sources" from disclosu
Sun Oct 23, 2005 21:50
64.140.158.81
FOIA, exempts "intelligence sources" from disclosure.
http://www.usdoj.gov/osg/briefs/1983/sg830018.txt
Judge Bork also strongly criticized the majority's conclusion that
the FOIA sometimes requires the CIA to break a promise of
confidentiality it has given to an intelligence source. He stated
(Pet. App. 13a-14a):
Many persons who expect pledges of confidentiality to be
honored will be shocked to learn, long after they give
information in return for such a promise, that their identities
will be disclosed. * * * (I)n this very case, retrospective
application of (the majority's definition) * * * may be
profoundly unjust. It will certainly be so if it results in the
disclosure of the identities of * * * researchers who fully, and
justifiably, expected the government to keep its commitment and
to protect them from the wide range of dangers that may have
concerned them when they insisted on confidentiality. This is
not an honorable way for the government of the United States to
behave, and the dishonor is in no way lessened because it is
mandated by a court of the United States.
Judge Bork urged that by authorizing courts to force the CIA to
break its promises of confidentiality, the majority's approach
"produces pernicious results. * * * Because of the ever-present
possibility of a future breach of trust ordered by the judiciary under
the vague standard laid down today, the CIA will probably lose many
future sources of valuable intelligence" (Pet. App. 13a-14a). Judge
Bork remarked that under the court of appeals' definition of
"intelligence sources," "individuals who give information to the CIA
on the understanding that their names will be kept secret cannot rely
on the promise of confidentiality if the information turns out to be
the sort the CIA can get elsewhere without promising secrecy,
something the sources of the information will often not be in a
position to know. There is, moreover, no guarantee that a judge,
examining the situation years later and deciding on the basis of a
restricted record, will come to an accurate conclusion" (id. at 13a).
Judge Bork then concluded (ibid.):
The CIA and those who cooperate with it need and are entitled
to firm rules that can be known in advance rather than vague
standards whose application to particular circumstances will
always be subject to judicial second-guessing. Our national
interest, which is expressed in the authority to keep
intelligence sources and methods confidential, requires no less.
The court of appeals denied the CIA's petition for rehearing and
suggestion of rehearing en banc. Judges Wilkey, Bork, and Scalia
voted in favor of rehearing en banc. Pet. App. 18a.
SUMMARY OF ARGUMENT
A. The court of appeals' decision is inconsistent with the plain
meaning of 50 U.S.C. 403(d)(3), which protects "intelligence sources"
from disclosure without limitation or qualification. The district
court specifically ruled that the MKULTRA project was within the scope
of the Central Intelligence Agency's intelligence function, and the
court of appeals did not question that ruling. Thus, the MKULTRA
researchers were, literally, sources of intelligence information.
That should have been the end of the inquiry.
Nothing in the legislative history of Section 403(d)(3) suggests
that the term "intelligence sources" should be given anything other
than its plain meaning. On the contrary, the legislative history
shows that Congress was aware that the CIA would derive intelligence
from a large number of sources, and that these sources would be very
diverse in character. Nonetheless, Congress did not attempt to
differentiate among sources of intelligence information; it simply
protected "intelligence sources" from disclosure. Moreover, Congress
was acutely aware of the importance of secrecy to the
intelligence-gathering process. Indeed, some of the congressional
hearings on Section 403(d)(3) were held in secret and were only
recently declassified.
The court of appeals appears to have arrived at its narrow
construction of the term "intelligence sources" by interpreting
Section 403(d)(3) in a way that would reflect what the court
considered to be the pro-disclosure philosophy of the Freedom of
Information Act. This is a fundamental error. Exemption 3 of the
FOIA incorporates by reference the exemptions from disclosure
contained in the statutes to which it refers, and the legislative
history of Exemption 3 expressly identifies Section 403(d)(3) as one
of the statutes that is incorporated by reference. The disclosure of
intelligence sources is therefore governed not by the "spirit" of the
FOIA but by Section 403(d)(3) -- a statute enacted shortly after World
War II in a climate quite different from that which prevailed at the
time of the FOIA.
B. In addition, the court of appeals' definition of "intelligence
sources" leads to results that Congress could not possibly have
intended. In the intelligence area, because the stakes are so high,
it is crucially important to the CIA that it be able to give its
sensitive intelligence sources as absolute a guarantee of
confidentiality as possible, and that it be perceived by potential
sources as being able to keept its commitments. "The Government has a
compelling interest in protecting both the secrecy of information
important to our national security and the appearance of
confidentiality so essential to the effective operation of our foreign
intelligence service." Snepp v. United States, 444 U.S. 507, 509 n.3
(1980), quoted in Haig v. Agee, 453 U.S. 280, 307 (1981)(emphasis
added). The court of appeals' approach -- by requiring the CIA to
reveal the identity of a source of intelligence information whenever a
court determines, after the fact, that the Agency could have obtained
the same kind of information without guaranteeing confidentiality --
would necessarily undermine the CIA's efforts to assure potential
sources that their identities will not be revealed under circumstances
that could cause them great harm.
Moreover, the court of appeals' definition would require the Agency
to disclose intelligence sources whenever the information they provide
also happens to be in the public domain. This, too, would damage the
Agency in a number of ways: by revealing to hostile foreign powers
the subjects in which the Agency is interested; by making it
difficult for the Agency to obtain information that, while
theoretically available to the public, is far more easily obtained
from a source that insists on confidentiality; and perhaps by
requiring the Agency to disclose the identity of even a very sensitive
source, if that source happened also to provide information that the
CIA could have obtained without promising confidentiality.
The legislative history of Section 403(d)(3) shows that Congress
understood that the Agency would rely heavily on intelligence sources
of the kind that the court of appeals' definition would require the
Agency to disclose. There is no indication that Congress intended to
exclude such sources from the unqualified protection it afforded to
"intelligence sources" in Section 403(d)(3). In sum, Congress was
aware that intelligence information would be provided by numerous and
diverse sources, and it chose to enact an unqualified measure
protecting "intelligence sources" from disclosure. There is no reason
to give that term anything other than its literal meaning.
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
In this case, as in another Freedom of Information Act case
recently decided by the Court, "(t)he plain language of the statute *
* * is sufficient to resolve the question presented" (United States v.
Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 6).
1. The only issue in this case is the meaning of the term
"intelligence sources" in Section 102(d)(3) of the National Security
Act of 1947, 50 U.S.C. 403(d)(3). Exemption 3 of the FOIA provides
that the FOIA does not require an agency to 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)). It is beyond dispute that Section
403(d)(3) is one of the statutes referred to by Exemption 3; the
court of appeals twice acknowledged this "well-established" point
(Pet. App. 2a n.1; see id. at 44a), and respondents have not
contended otherwise.
Indeed, the legislative history of Exemption 3 explicitly
identifies Section 403(d)(3) as a principal example of an Exemption 3
statute. See H.R. Rep. 94-880, 94th Cong., 2d Sess., Pt. 2, at 15 n.2
(1976). See also H.R. Rep. 93-1380, 93d Cong., 2d Sess. 12 (1974);
S. Rep. 93-854, 93d Cong., 2d Sess. 16 (1974); S. Rep. 98-305, 98th
Cong., 1st Sess. 7 n.4 (1983). And the courts of appeals have
consistently held that Section 403(d)(3) is an Exemption 3 statute.
See, e.g., Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982);
Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. denied, 445
U.S. 927 (1980); National Commission on Law En orcement and Social
Justice v. CIA, 576 F.2d 1373, 1376 (9th Cir. 1978). Section
403(d)(3) specifically authorizes the Director of Central Intelligence
to protect "intelligence sources and methods" from disclosure. It
follows that the FOIA does not require the disclosure of the identity
of any entity that is an "intelligence source" within the meaning of
Section 403(d)(3).
2. a. The court of appeals did not appear to deny that the MKULTRA
researchers were, literally, sources of intelligence. The district
court specifically ruled that the CIA "could reasonably determine that
(the MKULTRA) research was needed for its intelligence function" (Pet.
App. 22a-23a), and the court of appeals did not question this ruling.
Indeed, on the first appeal, Judge Markey, who would have ordered the
researchers' identities disclosed without further proceedings,
nonetheless acknowledged that "the Agency's need for the research data
"to perform its intelligence function effectively' has not been
challenged on this record" (id. at 62a).
The MKULTRA researchers were, therefore, "intelligence sources"
within the literal meaning of that term. That should have been the
end of the inquiry. This Court has frequently emphasized that the
plain language of a statute is the surest guide to Congress's
intentions (see, e.g., United States v. Rodgers, No. 83-620 (Apr. 30,
1984), slip op. 4; Steadman v. SEC, 450 U.S. 91, 97 (1981)), and
there is no reason to believe that Congress meant the words of Section
403(d)(3) to have something other than their plain meaning -- that all
sources of intelligence are protected from disclosure. "Absent a
clearly expressed legislative intention to the contrary," the
"language of the statute itself" must "ordinarily be regarded as
conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980). In this case, there is nothing approaching
"the kind of compelling evidence of congressional intent that would be
necessary to (warrant) * * * look(ing) beyond the plain statutory
language" (Weber Aircraft Corp., slip op. 9).
Congress did not say -- as the court of appeals has held -- that
the Director of Central Intelligence is authorized to protect
intelligence sources only if such protection is needed to obtain
information that otherwise could not be obtained. Nor did Congress
say that only confidential or nonpublic intelligence sources are
protected. In other provisions of the FOIA and in the Privacy Act, a
related statute, Congress has protected "confidential source(s),"
sources of "confidential information," and sources that provided
information under an express promise of confidentiality. See 5 U.S.C.
552(b)(7)(D); 5 U.S.C. 552a(k)(2) and (5). But Section 403(d)(3)
contains no such language; Congress simply protected all sources of
intelligence.
Indeed, as the court of appeals acknowledged in its first opinion
in this case, that court's prior decisions dealing with Section
403(d)(3) and Exemption 3 "simply assumed the phrase ('intelligence
sources') to have a plain meaning" (Pet. App. 44a). And in subsequent
cases in which the definition it devised in this case had apparently
not been brought to its attention, the District of Columbia Circuit
has continued to give the term "intelligence sources" its plain
meaning. See, e.g., Afshar v. Department of State, 702 F.2d 1125,
1130 (1983) ("The Freedom of Information Act bars the courts from
prying loose from the government even the smallest bit of information
that * * * would disclose intelligence sources or methods.");
Gardels, 689 F.2d at 1104.
b. While the legislative history of Section 403(d)(3) does not
specifically address the meaning of the term "intelligence sources and
methods" -- presumably because Congress did not see any ambiguity in
the phrase -- it suggests no reason whatever to doubt that Congress
intended to give the Director of Central Intelligence broad power to
protect the secrecy of the intelligence process. The National
Security Act of 1947 was enacted shortly after World War II. Section
403 established the CIA and empowered it, among other things, "to
correlate and evaluate intelligence relating to the national security"
(50 U.S.C. 403(d)(3)). The legislative history of Section 403 shows
that Congress was concerned about reports of shortcomings in American
intelligence before Pearl Harbor and during World War II and was
determined to improve the nation's capacity to gather and analyze
intelligence in peacetime as well as in war. See, e.g., S. Rep. 239,
80th Cong., 1st Sess. 2 (1947); H.R. Rep. 961, 80th Cong., 1st Sess.
3-4 (1947); 93 Cong. Rec. 9444 (1947). See also Commission on
Organization of the Executive Branch of the Government, Intelligence
Activities: A Report to the Congress 29-30 (1955).
At least two aspects of the legislative history shed light on the
scope of the protection Congress afforded to "intelligence sources and
methods." First, Congress was well aware that the CIA would derive
intelligence from a large number of diverse sources. Congress created
the CIA because it envisioned that the government would have to
collect and analyze a "mass of information" in order to survive in the
postwar world. See S. Rep. 239, supra, at 2 ("(T)o meet the future
with confidence, we must make certain * * * that a central
intelligence agency collects and analyzes that mass of information
without which the Government cannot either maintain peace or wage war
successfully"). See also 93 Cong. Rec. 9397 (1947) (remarks of Rep.
Wadsworth) ("The function of that agency is to constitute itself as a
gathering point for information coming from all over the world through
all kinds of channels."); National Defense Establishment: Hearings
on S. 758 Before the Senate Comm. on Armed Services, 80th Cong., 1st
Sess., Pt. 3, at 669 (1947) (statement of Charles S. Cheston, former
military intelligence official) (The agency must have "authority to
analyze and correlate information from all sources.") (hereinafter
cited as Senate Hearings); National Security Act of 1947: Hearings
on H.R. 2319 Before the House Comm. on Expenditures in the Executive
Departments, 80th Cong., 1st Sess. 112 (1947) (remarks of Rep. Boggs)
(the Director of Central Intelligence "is dealing with all the
information and the evaluation of that information, from wherever we
can get it") (hereinafter cited as House Hearings); Senate Hearings,
supra, at 132 (statement of Fleet Admiral Nimitz) ("(T)he Central
Int
http://www.usdoj.gov/osg/briefs/1983/sg830018.txt
Judge Bork also strongly criticized the majority's conclusion that
the FOIA sometimes requires the CIA to break a promise of
confidentiality it has given to an intelligence source. He stated
(Pet. App. 13a-14a):
Many persons who expect pledges of confidentiality to be
honored will be shocked to learn, long after they give
information in return for such a promise, that their identities
will be disclosed. * * * (I)n this very case, retrospective
application of (the majority's definition) * * * may be
profoundly unjust. It will certainly be so if it results in the
disclosure of the identities of * * * researchers who fully, and
justifiably, expected the government to keep its commitment and
to protect them from the wide range of dangers that may have
concerned them when they insisted on confidentiality. This is
not an honorable way for the government of the United States to
behave, and the dishonor is in no way lessened because it is
mandated by a court of the United States.
Judge Bork urged that by authorizing courts to force the CIA to
break its promises of confidentiality, the majority's approach
"produces pernicious results. * * * Because of the ever-present
possibility of a future breach of trust ordered by the judiciary under
the vague standard laid down today, the CIA will probably lose many
future sources of valuable intelligence" (Pet. App. 13a-14a). Judge
Bork remarked that under the court of appeals' definition of
"intelligence sources," "individuals who give information to the CIA
on the understanding that their names will be kept secret cannot rely
on the promise of confidentiality if the information turns out to be
the sort the CIA can get elsewhere without promising secrecy,
something the sources of the information will often not be in a
position to know. There is, moreover, no guarantee that a judge,
examining the situation years later and deciding on the basis of a
restricted record, will come to an accurate conclusion" (id. at 13a).
Judge Bork then concluded (ibid.):
The CIA and those who cooperate with it need and are entitled
to firm rules that can be known in advance rather than vague
standards whose application to particular circumstances will
always be subject to judicial second-guessing. Our national
interest, which is expressed in the authority to keep
intelligence sources and methods confidential, requires no less.
The court of appeals denied the CIA's petition for rehearing and
suggestion of rehearing en banc. Judges Wilkey, Bork, and Scalia
voted in favor of rehearing en banc. Pet. App. 18a.
SUMMARY OF ARGUMENT
A. The court of appeals' decision is inconsistent with the plain
meaning of 50 U.S.C. 403(d)(3), which protects "intelligence sources"
from disclosure without limitation or qualification. The district
court specifically ruled that the MKULTRA project was within the scope
of the Central Intelligence Agency's intelligence function, and the
court of appeals did not question that ruling. Thus, the MKULTRA
researchers were, literally, sources of intelligence information.
That should have been the end of the inquiry.
Nothing in the legislative history of Section 403(d)(3) suggests
that the term "intelligence sources" should be given anything other
than its plain meaning. On the contrary, the legislative history
shows that Congress was aware that the CIA would derive intelligence
from a large number of sources, and that these sources would be very
diverse in character. Nonetheless, Congress did not attempt to
differentiate among sources of intelligence information; it simply
protected "intelligence sources" from disclosure. Moreover, Congress
was acutely aware of the importance of secrecy to the
intelligence-gathering process. Indeed, some of the congressional
hearings on Section 403(d)(3) were held in secret and were only
recently declassified.
The court of appeals appears to have arrived at its narrow
construction of the term "intelligence sources" by interpreting
Section 403(d)(3) in a way that would reflect what the court
considered to be the pro-disclosure philosophy of the Freedom of
Information Act. This is a fundamental error. Exemption 3 of the
FOIA incorporates by reference the exemptions from disclosure
contained in the statutes to which it refers, and the legislative
history of Exemption 3 expressly identifies Section 403(d)(3) as one
of the statutes that is incorporated by reference. The disclosure of
intelligence sources is therefore governed not by the "spirit" of the
FOIA but by Section 403(d)(3) -- a statute enacted shortly after World
War II in a climate quite different from that which prevailed at the
time of the FOIA.
B. In addition, the court of appeals' definition of "intelligence
sources" leads to results that Congress could not possibly have
intended. In the intelligence area, because the stakes are so high,
it is crucially important to the CIA that it be able to give its
sensitive intelligence sources as absolute a guarantee of
confidentiality as possible, and that it be perceived by potential
sources as being able to keept its commitments. "The Government has a
compelling interest in protecting both the secrecy of information
important to our national security and the appearance of
confidentiality so essential to the effective operation of our foreign
intelligence service." Snepp v. United States, 444 U.S. 507, 509 n.3
(1980), quoted in Haig v. Agee, 453 U.S. 280, 307 (1981)(emphasis
added). The court of appeals' approach -- by requiring the CIA to
reveal the identity of a source of intelligence information whenever a
court determines, after the fact, that the Agency could have obtained
the same kind of information without guaranteeing confidentiality --
would necessarily undermine the CIA's efforts to assure potential
sources that their identities will not be revealed under circumstances
that could cause them great harm.
Moreover, the court of appeals' definition would require the Agency
to disclose intelligence sources whenever the information they provide
also happens to be in the public domain. This, too, would damage the
Agency in a number of ways: by revealing to hostile foreign powers
the subjects in which the Agency is interested; by making it
difficult for the Agency to obtain information that, while
theoretically available to the public, is far more easily obtained
from a source that insists on confidentiality; and perhaps by
requiring the Agency to disclose the identity of even a very sensitive
source, if that source happened also to provide information that the
CIA could have obtained without promising confidentiality.
The legislative history of Section 403(d)(3) shows that Congress
understood that the Agency would rely heavily on intelligence sources
of the kind that the court of appeals' definition would require the
Agency to disclose. There is no indication that Congress intended to
exclude such sources from the unqualified protection it afforded to
"intelligence sources" in Section 403(d)(3). In sum, Congress was
aware that intelligence information would be provided by numerous and
diverse sources, and it chose to enact an unqualified measure
protecting "intelligence sources" from disclosure. There is no reason
to give that term anything other than its literal meaning.
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
In this case, as in another Freedom of Information Act case
recently decided by the Court, "(t)he plain language of the statute *
* * is sufficient to resolve the question presented" (United States v.
Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 6).
1. The only issue in this case is the meaning of the term
"intelligence sources" in Section 102(d)(3) of the National Security
Act of 1947, 50 U.S.C. 403(d)(3). Exemption 3 of the FOIA provides
that the FOIA does not require an agency to 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)). It is beyond dispute that Section
403(d)(3) is one of the statutes referred to by Exemption 3; the
court of appeals twice acknowledged this "well-established" point
(Pet. App. 2a n.1; see id. at 44a), and respondents have not
contended otherwise.
Indeed, the legislative history of Exemption 3 explicitly
identifies Section 403(d)(3) as a principal example of an Exemption 3
statute. See H.R. Rep. 94-880, 94th Cong., 2d Sess., Pt. 2, at 15 n.2
(1976). See also H.R. Rep. 93-1380, 93d Cong., 2d Sess. 12 (1974);
S. Rep. 93-854, 93d Cong., 2d Sess. 16 (1974); S. Rep. 98-305, 98th
Cong., 1st Sess. 7 n.4 (1983). And the courts of appeals have
consistently held that Section 403(d)(3) is an Exemption 3 statute.
See, e.g., Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982);
Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. denied, 445
U.S. 927 (1980); National Commission on Law En orcement and Social
Justice v. CIA, 576 F.2d 1373, 1376 (9th Cir. 1978). Section
403(d)(3) specifically authorizes the Director of Central Intelligence
to protect "intelligence sources and methods" from disclosure. It
follows that the FOIA does not require the disclosure of the identity
of any entity that is an "intelligence source" within the meaning of
Section 403(d)(3).
2. a. The court of appeals did not appear to deny that the MKULTRA
researchers were, literally, sources of intelligence. The district
court specifically ruled that the CIA "could reasonably determine that
(the MKULTRA) research was needed for its intelligence function" (Pet.
App. 22a-23a), and the court of appeals did not question this ruling.
Indeed, on the first appeal, Judge Markey, who would have ordered the
researchers' identities disclosed without further proceedings,
nonetheless acknowledged that "the Agency's need for the research data
"to perform its intelligence function effectively' has not been
challenged on this record" (id. at 62a).
The MKULTRA researchers were, therefore, "intelligence sources"
within the literal meaning of that term. That should have been the
end of the inquiry. This Court has frequently emphasized that the
plain language of a statute is the surest guide to Congress's
intentions (see, e.g., United States v. Rodgers, No. 83-620 (Apr. 30,
1984), slip op. 4; Steadman v. SEC, 450 U.S. 91, 97 (1981)), and
there is no reason to believe that Congress meant the words of Section
403(d)(3) to have something other than their plain meaning -- that all
sources of intelligence are protected from disclosure. "Absent a
clearly expressed legislative intention to the contrary," the
"language of the statute itself" must "ordinarily be regarded as
conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980). In this case, there is nothing approaching
"the kind of compelling evidence of congressional intent that would be
necessary to (warrant) * * * look(ing) beyond the plain statutory
language" (Weber Aircraft Corp., slip op. 9).
Congress did not say -- as the court of appeals has held -- that
the Director of Central Intelligence is authorized to protect
intelligence sources only if such protection is needed to obtain
information that otherwise could not be obtained. Nor did Congress
say that only confidential or nonpublic intelligence sources are
protected. In other provisions of the FOIA and in the Privacy Act, a
related statute, Congress has protected "confidential source(s),"
sources of "confidential information," and sources that provided
information under an express promise of confidentiality. See 5 U.S.C.
552(b)(7)(D); 5 U.S.C. 552a(k)(2) and (5). But Section 403(d)(3)
contains no such language; Congress simply protected all sources of
intelligence.
Indeed, as the court of appeals acknowledged in its first opinion
in this case, that court's prior decisions dealing with Section
403(d)(3) and Exemption 3 "simply assumed the phrase ('intelligence
sources') to have a plain meaning" (Pet. App. 44a). And in subsequent
cases in which the definition it devised in this case had apparently
not been brought to its attention, the District of Columbia Circuit
has continued to give the term "intelligence sources" its plain
meaning. See, e.g., Afshar v. Department of State, 702 F.2d 1125,
1130 (1983) ("The Freedom of Information Act bars the courts from
prying loose from the government even the smallest bit of information
that * * * would disclose intelligence sources or methods.");
Gardels, 689 F.2d at 1104.
b. While the legislative history of Section 403(d)(3) does not
specifically address the meaning of the term "intelligence sources and
methods" -- presumably because Congress did not see any ambiguity in
the phrase -- it suggests no reason whatever to doubt that Congress
intended to give the Director of Central Intelligence broad power to
protect the secrecy of the intelligence process. The National
Security Act of 1947 was enacted shortly after World War II. Section
403 established the CIA and empowered it, among other things, "to
correlate and evaluate intelligence relating to the national security"
(50 U.S.C. 403(d)(3)). The legislative history of Section 403 shows
that Congress was concerned about reports of shortcomings in American
intelligence before Pearl Harbor and during World War II and was
determined to improve the nation's capacity to gather and analyze
intelligence in peacetime as well as in war. See, e.g., S. Rep. 239,
80th Cong., 1st Sess. 2 (1947); H.R. Rep. 961, 80th Cong., 1st Sess.
3-4 (1947); 93 Cong. Rec. 9444 (1947). See also Commission on
Organization of the Executive Branch of the Government, Intelligence
Activities: A Report to the Congress 29-30 (1955).
At least two aspects of the legislative history shed light on the
scope of the protection Congress afforded to "intelligence sources and
methods." First, Congress was well aware that the CIA would derive
intelligence from a large number of diverse sources. Congress created
the CIA because it envisioned that the government would have to
collect and analyze a "mass of information" in order to survive in the
postwar world. See S. Rep. 239, supra, at 2 ("(T)o meet the future
with confidence, we must make certain * * * that a central
intelligence agency collects and analyzes that mass of information
without which the Government cannot either maintain peace or wage war
successfully"). See also 93 Cong. Rec. 9397 (1947) (remarks of Rep.
Wadsworth) ("The function of that agency is to constitute itself as a
gathering point for information coming from all over the world through
all kinds of channels."); National Defense Establishment: Hearings
on S. 758 Before the Senate Comm. on Armed Services, 80th Cong., 1st
Sess., Pt. 3, at 669 (1947) (statement of Charles S. Cheston, former
military intelligence official) (The agency must have "authority to
analyze and correlate information from all sources.") (hereinafter
cited as Senate Hearings); National Security Act of 1947: Hearings
on H.R. 2319 Before the House Comm. on Expenditures in the Executive
Departments, 80th Cong., 1st Sess. 112 (1947) (remarks of Rep. Boggs)
(the Director of Central Intelligence "is dealing with all the
information and the evaluation of that information, from wherever we
can get it") (hereinafter cited as House Hearings); Senate Hearings,
supra, at 132 (statement of Fleet Admiral Nimitz) ("(T)he Central
Int
- (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]
