FOIA
(Cont'd) FOIA, exempts "intelligence sources" from disclosu
Sun Oct 23, 2005 21:53
64.140.158.81
FOIA, exempts "intelligence sources" from disclosure.
http://www.usdoj.gov/osg/briefs/1983/sg830018.txt
(statement of Fleet Admiral Nimitz) ("(T)he Central
Intelligence Agency (is) charged with responsibility for collection of
information from all available sources * * *. (I)ntelligence is a
composite of authenticated and evaluated information covering not only
the armed forces establishment of a possible enemy, but also his
industrial capacity, racial traits, religious beliefs, and other
related aspects."); id. at 497 (statement of General Vandenberg,
Director of Central Intelligence Group) ("Collection in the field of
foreign intelligence consists of securing all possible data pertaining
to foreign governments or the national defense and security of the
United States.").
Congress was also advised of the extraordinary diversity of
intelligence sources. The classic secret agent, Congress was told, is
only one such source. Allen W. Dulles, an important figure in wartime
military intelligence who subsequently became Director of Central
Intelligence, explained that "American businessmen and American
professors and Americans of all types and descriptions who travel
around the world are one of the greatest repositories of intelligence
that we have." National Security Act of 1947: Hearings on H.R. 2319
Before the House Comm. on Expenditures in the Executive Departments,
80th Cong., 1st Sess. 22 (June 27, 1947) (published 1982) (hereinafter
cited as Secret House Hearings); /3/ see id. at 28. Another
high-ranking intelligence official emphasized "the great open sources
of information * * * such things as books, magazines, technical and
scientific surveys, photographs, commercial analyses, newspapers, and
radio broadcasts, and general information from people with a knowledge
of affairs abroad" (Senate Hearings, supra, at 492 (statement of
General Vandenberg)).
Second, Congress was acutely aware of the importance of secrecy.
See Snepp v. United States, 444 U.S. 507, 512 (1980) ("The continued
availability of * * * (intelligence) sources depends upon the CIA's
ability to guarantee the security of information that might compromise
them and even endanger the(ir) personal safety."). Congress was
advised in graphic terms, by high-ranking intelligence officials, of
the deadly peril that faced intelligence sources whose identities were
revealed. See Secret House Hearings, supra, at 10-11 (statement of
General Vandenberg); id. at 20 (statement of Allen W. Dulles). And
Congress was told that even American citizens who supply intelligence
information "close up like a clam" unless they can hold the government
"responsible to keep the complete security of the information they
turn over" (Secret House Hearings, supra, at 22 (statement of Allen W.
Dulles)). /4/ The committees of both Houses went into executive
session to consider the proposed legislation; the Secret House
Hearings, supra, were declassified only in 1982. See id. at v-viii;
S. Rep. 239, supra, at 1. A member of the House committee stated on
the floor (93 Cong. Rec. 9444 (1947) (statement of Rep. Manasco)):
We were sworn to secrecy and I hesitate to even discuss this
section because I am afraid I might say something, because the
Congressional Record is a public record, and divulge some
information here that would give aid and comfort to any
potential enemy we have * * *. The things we say here today,
the language we change, might endanger the lives of some
American citizens in the future.
We know of no suggestion in the legislative history that Congress
thought the CIA might be too secretive.
Against this background, Congress specified that the Director of
Central Intelligence is responsible for "protecting intelligence
sources and methods from unauthorized disclosure"; that language did
not appear in the Administration draft. Compare H.R. 2319, 80th
Cong., 1st Sess. Sec. 202 (1947), with H.R. 4214, 80th Cong., 1st
Sess. Sec. 105(d)(3) (1947); see H.R. Rep. 961, supra, at 3-4. /5/
Nothing in this legislative history remotely indicates that Congress
intended Section 403(d)(3) or its crucial language -- "intelligence
sources and methods" -- to be construed narrowly or in a way that
would promote the disclosure of intelligence sources to the public.
Nor is there any basis for concluding that Congress was concerned to
restrict the authority of the Director of Central Intelligence to
withhold information. Congress was advised that the CIA would draw
upon a large and diverse group of intelligence sources; Congress was
clearly aware that secrecy was extremely important; and it granted
the Director of Central Intelligence unqualified authority to protect
the secrecy of sources. Congress plainly intended the Director's
authority to have the broadest scope.
3. The court of appeals appeared to proceed from the premise that
the term "intelligence sources" must be given a narrow meaning in
order to avoid "broad agency discretion" (Pet. App. 45a; see id. at
50a) and thereby to serve what the court of appeals considered to be
the pro-disclosure "spirit" of the FOIA (see, e.g., id. at 7a, 42a;
see also id. at 41a-45a, 47a, 50a). This approach is fundamentally
misconceived. The disclosure of intelligence sources is governed by
Section 403(d)(3), not by the substantive standards or "spirit" of the
FOIA.
The purpose of Exemption 3 is to make it clear that the FOIA does
not repeal by implication certain other statutes. See H.R. Rep. 1497,
89th Cong., 2d Sess. 10 (1966). As we noted, it is beyond dispute
that Section 403(d)(3) is one of the statutes identified by Exemption
3. The legislative history is explicit that Exemption 3
"incorporat(es) by reference exemptions contained in (the) * * *
statutes" it identifies. H.R. Conf. Rep. 94-1441, 94th Cong., 2d
Sess. 14 (1976); see id. at 25. /6/ Thus, the only question in this
case is the interpretation of the term "intelligence sources and
methods" in Section 403(d)(3). The supposed pro-disclosure philosophy
of the FOIA is quite irrelevant to that question; as we have shown,
Section 403(d)(3) was enacted in a climate far different from that
which prevailed at the time the FOIA was enacted. The court of
appeals' anachronistic attempt to impute its own skepticism about CIA
secrecy (a skepticism it also attributed to the Congress that enacted
the FOIA) to the post-war Congress that establihsed the Agency appears
to be the fundamental error that led to its wholly unjustifiable
definition of "intelligence sources."
The court of appeals offered other justifications for narrowing the
explicit protection afforded to intelligence sources by Section
403(d)(3), but none of them is any more substantial. For example, the
court relied on a provision of the Central Intelligence Agency Act of
1949, 50 U.S.C. 403g, which provides in part:
In the interests of the security of the foreign intelligence
activities of the United States and in order further to
implement the proviso of section 403(d)(3) of this title that
the Director of Central Intelligence shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure, the Agency shall be exempted from the provisions of
(5 U.S.C. (1958 ed.) 654) /7/ and the provisions of any other
law which require the publication or disclosure of the
organization, functions, names, official titles, salaries, or
numbers of personnel employed by the Agency.
The court of appeals stated that "Section 403g provides specific
protection for most of the CIA activities and contractual
relationships about which the Agency has expressed greatest concern *
* * (and) evinces a congressional awareness that Section 403(d)(3) * *
* would require construction and interpretation limiting executive
discretion to withhold; otherwise it would have felt no need to
'implement' the original proviso by listing the specific matters
exempted from disclosure under Section 403g." Pet. App. 49a-50a.
This reasoning is erroneous in many ways. Section 403g does not in
fact protect "most of the CIA activities * * * about which the Agency
has expressed greatest concern." Section 403g applies only to
"personnel employed by" the CIA, and many important intelligence
sources might not be regarded as personnel employed by the CIA; one
example is Americans travelling abroad, who, Director Dulles advised
Congress, "are one of the greatest repositories of intelligence that
we have" (Secret House Hearings, supra, at 22). Other sources, as
well, furnish information simply because they wish to aid the Agency
or the United States. But the extent to which Section 403g protects
intelligence sources is, in any event, irrelevant. Congress enacted
both Section 403(d)(3) and Section 403g, and it cannot be seriously
disputed that both Section 403g and Section 403(d)(3) are included
within Exemption 3. See page 15, supra; National Commission, 576
F.2d at 1376. Section 403(d)(3) should not be given an artificially
narrow interpretation that finds no support in its language or
legislative history merely because Section 403g also exists to protect
what Congress described as "the confidential nature of the Agency's
functions" (H.R. Rep. 160, 81st Cong., 1st Sess. 6-7 (1949); see S.
Rep. 106, 81st Cong., 1st Sess. 1 (1949)). See also Baker v. CIA, 580
F.2d 664, 667-669 (D.C. Cir. 1978). Cf. SEC v. National Securities,
Inc., 393 U.S. 453, 468 (1969).
The court of appeals' suggestion that the enactment of Section 403g
reveals Congress's awareness that Section 403(d)(3) "require(s)
construction and interpretation limiting executive discretion to
withhold" (Pet. App. 49a-50a) is similarly a non sequitur. The court
of appeals would read Section 403g as if it superseded, narrowed, or
exhausted the content of Section 403(d)(3), but what Section 403g says
is that it "further * * * implement(s)" Section 403(d)(3). The most
likely explanation of Congress's decision to enact Section 403g is
that in 1949, there were other statutes that might have been construed
to require the disclosure of information about CIA employees -- 5
U.S.C. (1958 ed.) 654, which is mentioned in Section 403g but has
since been repealed, was apparently the statute Congress had in mind
(see page 24 note 7, supra) -- and Congress thought it advisable
explicitly to exempt the Agency from such statutes. But before the
FOIA was enacted, there was no statute that could have been thought to
require the disclosure of intelligence sources generally. When
Congress enacted the FOIA, it included Exemption 3 and, as we noted,
specified that Section 403(d)(3) is an Exemption 3 statute. Nothing
in this pattern of congressional activity suggests that the protection
that Exemption 3 and Section 403(d)(3) afford to intelligence sources
should be given less than its full, literal meaning. /8/
Finally, the court of appeals stated that its definition of
"intelligence sources" was justified because when Congress enacted
Section 403(d)(3), "(s)ecrecy seems to have been a concern only
insofar as it was pertinent to protection of the national security.
Analysis should therefore focus on the practical necessity of secrecy.
* * * Section 403(d)(3) must be interpreted in functional terms"
(Pet. App. 50a). As we will explain, the court of appeals' definition
of intelligence sources reveals that the court was ill-informed about
the ways in which secrecy is "functional" in the intelligence area and
the reasons that secrecy can be a "practical necessity." See pages
29-41, infra. But the more fundamental point is that Congress has
already determined the extent to which secrecy is a "practical
necessity" and is "pertinent to protection of the national security";
Congress's judgment is relfected in its unqualified mandate to the
Director to "protect() intelligence sources and methods from
unauthorized disclosure." It was not open to the court of appeals to
second-guess Congress by deciding that it is only sometimes necessary
to protect intelligence sources from disclosure.
4. Contrary to some of the suggestions made by respondents and the
court of appeals (see, e.g., Memo. in Opp. 5, 9, 10-12; Pet. App.
45a, 47a, 50a), interpreting Section 403(d)(3) according to its plain
meaning will not give the CIA unlimited authority to withhold
documents requested under the FOIA. The CIA may engage only in
authorized intelligence activities. See 50 U.S.C. 403(d); Exec.
Order No. 12,333, Section 1.51, 46 Fed. Reg. 59941, 59944 (1981).
Moreover, the Agency's intelligence-gathering operations are subject
to a number of statutory restrictions. See 50 U.S.C. 403(d)(3)
("(T)he Agency shall have no police, subp(o)ena, law-enforcement
powers, or internal-security functions.").
This case, however, does not now involve any dispute over the
meaning of the term "intelligence" or the breadth of the Agency's
intelligence function. /9/ As we have noted, the district court ruled
that the Agency "could reasonably determine that (the MKULTRA)
research was needed for its intelligence function" (Pet. App.
22a-23a), and the court of appeals did not disturb that ruling. The
only question, therefore, is whether Section 403(d)(3) protects from
disclosure a "source" of information that is acknowledged to be
necessary for the Agency's "intelligence" function. That question is
answered by the plain language of the statute.
B. The Court of Appeals' Definition of "Intelligence Sources"
Produces Results That Congress Could Not Have Intended
The severe difficulties that would be created if the court of
appeals' definition of "intelligence sources" were routinely applied
in FOIA cases are a further reason for interpreting that term
according to its plain meaning. The court of appeals' definition
would require disclosures that could be extremely damaging to the
CIA's ability to carry out its mission, and Congress could not have
intended to permit such disclosures. Indeed, there is specific
evidence in the legislative history of Section 403(d)(3) that Congress
intended to preclude many of the kinds of disclosures that would be
required by the court of appeals' decision.
But the fact that the court of appeals' definition of "intelligence
sources" leads to results that are obviously inconsistent with
Congress's intentions is not just an indictment of that court's
particular formulation; it is a further illustration of why Congress
chose to give unqualified protection to "intelligence sources and
methods." The court of appeals, notwithstanding its concern with the
"practical necessity of secrecy" and its effort to devise a
"functional" definition, did not recognize that its definition
produces wholly unacceptable results when applied to many categories
of intelligence sources. Nor did the court of appeals fully
understand the manifold and complex ways in which secrecy is vital to
intelligence gathering. Congress protected "intelligence sources and
methods" without qualification, and the profound shortcomings of the
court of appeals' definition suggest that a narrower protection can
risk interfering with the intelligence-gathering mission of the CIA in
important ways that are not always apparent.
1. The court of appeals grievously underestimated the importance of
providing intelligence sources with an assurance of confidentiality
that is as absolute as possible. Under the court of appeals'
appraoch, the CIA will be forced to disclose an intelligence source
whenever a court determines, after the fact, that the Agency could
have obtained the kind of information supplied by the source without
promising confidentiality. Indeed, the court of appeals carried this
approach to the point of holding that the Agency will be required to
betray an explicit promise of confidentiality if a court determines
that the promise was not necessary
http://www.usdoj.gov/osg/briefs/1983/sg830018.txt
(statement of Fleet Admiral Nimitz) ("(T)he Central
Intelligence Agency (is) charged with responsibility for collection of
information from all available sources * * *. (I)ntelligence is a
composite of authenticated and evaluated information covering not only
the armed forces establishment of a possible enemy, but also his
industrial capacity, racial traits, religious beliefs, and other
related aspects."); id. at 497 (statement of General Vandenberg,
Director of Central Intelligence Group) ("Collection in the field of
foreign intelligence consists of securing all possible data pertaining
to foreign governments or the national defense and security of the
United States.").
Congress was also advised of the extraordinary diversity of
intelligence sources. The classic secret agent, Congress was told, is
only one such source. Allen W. Dulles, an important figure in wartime
military intelligence who subsequently became Director of Central
Intelligence, explained that "American businessmen and American
professors and Americans of all types and descriptions who travel
around the world are one of the greatest repositories of intelligence
that we have." National Security Act of 1947: Hearings on H.R. 2319
Before the House Comm. on Expenditures in the Executive Departments,
80th Cong., 1st Sess. 22 (June 27, 1947) (published 1982) (hereinafter
cited as Secret House Hearings); /3/ see id. at 28. Another
high-ranking intelligence official emphasized "the great open sources
of information * * * such things as books, magazines, technical and
scientific surveys, photographs, commercial analyses, newspapers, and
radio broadcasts, and general information from people with a knowledge
of affairs abroad" (Senate Hearings, supra, at 492 (statement of
General Vandenberg)).
Second, Congress was acutely aware of the importance of secrecy.
See Snepp v. United States, 444 U.S. 507, 512 (1980) ("The continued
availability of * * * (intelligence) sources depends upon the CIA's
ability to guarantee the security of information that might compromise
them and even endanger the(ir) personal safety."). Congress was
advised in graphic terms, by high-ranking intelligence officials, of
the deadly peril that faced intelligence sources whose identities were
revealed. See Secret House Hearings, supra, at 10-11 (statement of
General Vandenberg); id. at 20 (statement of Allen W. Dulles). And
Congress was told that even American citizens who supply intelligence
information "close up like a clam" unless they can hold the government
"responsible to keep the complete security of the information they
turn over" (Secret House Hearings, supra, at 22 (statement of Allen W.
Dulles)). /4/ The committees of both Houses went into executive
session to consider the proposed legislation; the Secret House
Hearings, supra, were declassified only in 1982. See id. at v-viii;
S. Rep. 239, supra, at 1. A member of the House committee stated on
the floor (93 Cong. Rec. 9444 (1947) (statement of Rep. Manasco)):
We were sworn to secrecy and I hesitate to even discuss this
section because I am afraid I might say something, because the
Congressional Record is a public record, and divulge some
information here that would give aid and comfort to any
potential enemy we have * * *. The things we say here today,
the language we change, might endanger the lives of some
American citizens in the future.
We know of no suggestion in the legislative history that Congress
thought the CIA might be too secretive.
Against this background, Congress specified that the Director of
Central Intelligence is responsible for "protecting intelligence
sources and methods from unauthorized disclosure"; that language did
not appear in the Administration draft. Compare H.R. 2319, 80th
Cong., 1st Sess. Sec. 202 (1947), with H.R. 4214, 80th Cong., 1st
Sess. Sec. 105(d)(3) (1947); see H.R. Rep. 961, supra, at 3-4. /5/
Nothing in this legislative history remotely indicates that Congress
intended Section 403(d)(3) or its crucial language -- "intelligence
sources and methods" -- to be construed narrowly or in a way that
would promote the disclosure of intelligence sources to the public.
Nor is there any basis for concluding that Congress was concerned to
restrict the authority of the Director of Central Intelligence to
withhold information. Congress was advised that the CIA would draw
upon a large and diverse group of intelligence sources; Congress was
clearly aware that secrecy was extremely important; and it granted
the Director of Central Intelligence unqualified authority to protect
the secrecy of sources. Congress plainly intended the Director's
authority to have the broadest scope.
3. The court of appeals appeared to proceed from the premise that
the term "intelligence sources" must be given a narrow meaning in
order to avoid "broad agency discretion" (Pet. App. 45a; see id. at
50a) and thereby to serve what the court of appeals considered to be
the pro-disclosure "spirit" of the FOIA (see, e.g., id. at 7a, 42a;
see also id. at 41a-45a, 47a, 50a). This approach is fundamentally
misconceived. The disclosure of intelligence sources is governed by
Section 403(d)(3), not by the substantive standards or "spirit" of the
FOIA.
The purpose of Exemption 3 is to make it clear that the FOIA does
not repeal by implication certain other statutes. See H.R. Rep. 1497,
89th Cong., 2d Sess. 10 (1966). As we noted, it is beyond dispute
that Section 403(d)(3) is one of the statutes identified by Exemption
3. The legislative history is explicit that Exemption 3
"incorporat(es) by reference exemptions contained in (the) * * *
statutes" it identifies. H.R. Conf. Rep. 94-1441, 94th Cong., 2d
Sess. 14 (1976); see id. at 25. /6/ Thus, the only question in this
case is the interpretation of the term "intelligence sources and
methods" in Section 403(d)(3). The supposed pro-disclosure philosophy
of the FOIA is quite irrelevant to that question; as we have shown,
Section 403(d)(3) was enacted in a climate far different from that
which prevailed at the time the FOIA was enacted. The court of
appeals' anachronistic attempt to impute its own skepticism about CIA
secrecy (a skepticism it also attributed to the Congress that enacted
the FOIA) to the post-war Congress that establihsed the Agency appears
to be the fundamental error that led to its wholly unjustifiable
definition of "intelligence sources."
The court of appeals offered other justifications for narrowing the
explicit protection afforded to intelligence sources by Section
403(d)(3), but none of them is any more substantial. For example, the
court relied on a provision of the Central Intelligence Agency Act of
1949, 50 U.S.C. 403g, which provides in part:
In the interests of the security of the foreign intelligence
activities of the United States and in order further to
implement the proviso of section 403(d)(3) of this title that
the Director of Central Intelligence shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure, the Agency shall be exempted from the provisions of
(5 U.S.C. (1958 ed.) 654) /7/ and the provisions of any other
law which require the publication or disclosure of the
organization, functions, names, official titles, salaries, or
numbers of personnel employed by the Agency.
The court of appeals stated that "Section 403g provides specific
protection for most of the CIA activities and contractual
relationships about which the Agency has expressed greatest concern *
* * (and) evinces a congressional awareness that Section 403(d)(3) * *
* would require construction and interpretation limiting executive
discretion to withhold; otherwise it would have felt no need to
'implement' the original proviso by listing the specific matters
exempted from disclosure under Section 403g." Pet. App. 49a-50a.
This reasoning is erroneous in many ways. Section 403g does not in
fact protect "most of the CIA activities * * * about which the Agency
has expressed greatest concern." Section 403g applies only to
"personnel employed by" the CIA, and many important intelligence
sources might not be regarded as personnel employed by the CIA; one
example is Americans travelling abroad, who, Director Dulles advised
Congress, "are one of the greatest repositories of intelligence that
we have" (Secret House Hearings, supra, at 22). Other sources, as
well, furnish information simply because they wish to aid the Agency
or the United States. But the extent to which Section 403g protects
intelligence sources is, in any event, irrelevant. Congress enacted
both Section 403(d)(3) and Section 403g, and it cannot be seriously
disputed that both Section 403g and Section 403(d)(3) are included
within Exemption 3. See page 15, supra; National Commission, 576
F.2d at 1376. Section 403(d)(3) should not be given an artificially
narrow interpretation that finds no support in its language or
legislative history merely because Section 403g also exists to protect
what Congress described as "the confidential nature of the Agency's
functions" (H.R. Rep. 160, 81st Cong., 1st Sess. 6-7 (1949); see S.
Rep. 106, 81st Cong., 1st Sess. 1 (1949)). See also Baker v. CIA, 580
F.2d 664, 667-669 (D.C. Cir. 1978). Cf. SEC v. National Securities,
Inc., 393 U.S. 453, 468 (1969).
The court of appeals' suggestion that the enactment of Section 403g
reveals Congress's awareness that Section 403(d)(3) "require(s)
construction and interpretation limiting executive discretion to
withhold" (Pet. App. 49a-50a) is similarly a non sequitur. The court
of appeals would read Section 403g as if it superseded, narrowed, or
exhausted the content of Section 403(d)(3), but what Section 403g says
is that it "further * * * implement(s)" Section 403(d)(3). The most
likely explanation of Congress's decision to enact Section 403g is
that in 1949, there were other statutes that might have been construed
to require the disclosure of information about CIA employees -- 5
U.S.C. (1958 ed.) 654, which is mentioned in Section 403g but has
since been repealed, was apparently the statute Congress had in mind
(see page 24 note 7, supra) -- and Congress thought it advisable
explicitly to exempt the Agency from such statutes. But before the
FOIA was enacted, there was no statute that could have been thought to
require the disclosure of intelligence sources generally. When
Congress enacted the FOIA, it included Exemption 3 and, as we noted,
specified that Section 403(d)(3) is an Exemption 3 statute. Nothing
in this pattern of congressional activity suggests that the protection
that Exemption 3 and Section 403(d)(3) afford to intelligence sources
should be given less than its full, literal meaning. /8/
Finally, the court of appeals stated that its definition of
"intelligence sources" was justified because when Congress enacted
Section 403(d)(3), "(s)ecrecy seems to have been a concern only
insofar as it was pertinent to protection of the national security.
Analysis should therefore focus on the practical necessity of secrecy.
* * * Section 403(d)(3) must be interpreted in functional terms"
(Pet. App. 50a). As we will explain, the court of appeals' definition
of intelligence sources reveals that the court was ill-informed about
the ways in which secrecy is "functional" in the intelligence area and
the reasons that secrecy can be a "practical necessity." See pages
29-41, infra. But the more fundamental point is that Congress has
already determined the extent to which secrecy is a "practical
necessity" and is "pertinent to protection of the national security";
Congress's judgment is relfected in its unqualified mandate to the
Director to "protect() intelligence sources and methods from
unauthorized disclosure." It was not open to the court of appeals to
second-guess Congress by deciding that it is only sometimes necessary
to protect intelligence sources from disclosure.
4. Contrary to some of the suggestions made by respondents and the
court of appeals (see, e.g., Memo. in Opp. 5, 9, 10-12; Pet. App.
45a, 47a, 50a), interpreting Section 403(d)(3) according to its plain
meaning will not give the CIA unlimited authority to withhold
documents requested under the FOIA. The CIA may engage only in
authorized intelligence activities. See 50 U.S.C. 403(d); Exec.
Order No. 12,333, Section 1.51, 46 Fed. Reg. 59941, 59944 (1981).
Moreover, the Agency's intelligence-gathering operations are subject
to a number of statutory restrictions. See 50 U.S.C. 403(d)(3)
("(T)he Agency shall have no police, subp(o)ena, law-enforcement
powers, or internal-security functions.").
This case, however, does not now involve any dispute over the
meaning of the term "intelligence" or the breadth of the Agency's
intelligence function. /9/ As we have noted, the district court ruled
that the Agency "could reasonably determine that (the MKULTRA)
research was needed for its intelligence function" (Pet. App.
22a-23a), and the court of appeals did not disturb that ruling. The
only question, therefore, is whether Section 403(d)(3) protects from
disclosure a "source" of information that is acknowledged to be
necessary for the Agency's "intelligence" function. That question is
answered by the plain language of the statute.
B. The Court of Appeals' Definition of "Intelligence Sources"
Produces Results That Congress Could Not Have Intended
The severe difficulties that would be created if the court of
appeals' definition of "intelligence sources" were routinely applied
in FOIA cases are a further reason for interpreting that term
according to its plain meaning. The court of appeals' definition
would require disclosures that could be extremely damaging to the
CIA's ability to carry out its mission, and Congress could not have
intended to permit such disclosures. Indeed, there is specific
evidence in the legislative history of Section 403(d)(3) that Congress
intended to preclude many of the kinds of disclosures that would be
required by the court of appeals' decision.
But the fact that the court of appeals' definition of "intelligence
sources" leads to results that are obviously inconsistent with
Congress's intentions is not just an indictment of that court's
particular formulation; it is a further illustration of why Congress
chose to give unqualified protection to "intelligence sources and
methods." The court of appeals, notwithstanding its concern with the
"practical necessity of secrecy" and its effort to devise a
"functional" definition, did not recognize that its definition
produces wholly unacceptable results when applied to many categories
of intelligence sources. Nor did the court of appeals fully
understand the manifold and complex ways in which secrecy is vital to
intelligence gathering. Congress protected "intelligence sources and
methods" without qualification, and the profound shortcomings of the
court of appeals' definition suggest that a narrower protection can
risk interfering with the intelligence-gathering mission of the CIA in
important ways that are not always apparent.
1. The court of appeals grievously underestimated the importance of
providing intelligence sources with an assurance of confidentiality
that is as absolute as possible. Under the court of appeals'
appraoch, the CIA will be forced to disclose an intelligence source
whenever a court determines, after the fact, that the Agency could
have obtained the kind of information supplied by the source without
promising confidentiality. Indeed, the court of appeals carried this
approach to the point of holding that the Agency will be required to
betray an explicit promise of confidentiality if a court determines
that the promise was not necessary
- Iraq Confidential: The Untold Story of the Intelligence —by Scott Ritter, Mon Oct 24 02:15
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