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Secrecy & Government Bulletin

Issue Number 72
November 1997

FAS Lawsuit Compels Intelligence Budget Disclosure

Finding itself unable to defend the classification of the intelligence budget total against a Freedom of Information Act lawsuit brought by the Federation of American Scientists, the Central Intelligence Agency disclosed the budget total in an October 15 statement: "The aggregate amount appropriated for intelligence and intelligence-related activities for fiscal year 1997 is $26.6 billion."

In One Era, Out the Other

The disclosure is an historic victory, if only because it was resisted so fiercely and for so long by the intelligence bureaucracy. It represents one of the few identifiable post- cold war reforms to intelligence policy, and marks the first time in over fifty years that the U.S. government has officially acknowledged the amount of its intelligence spending. ("During World War II, spending for the Office of Strategic Services, the predecessor of the CIA, was openly included in National War Agencies Appropriation Acts," according to a 1994 Congressional Research Service report by Richard A. Best, Jr.)

The $26.6 billion figure itself reveals little that is new. It is a few billion dollars lower than previously estimated, apparently because the 1997 budget for the National Reconnaissance Office was cut after that agency was found to be accumulating unspent funds from previous years.

On the other hand, the process by which the budget total came to be disclosed offers much food for thought.

One of the enduring perplexities of public interest advocacy is the question, What works? How can members of the public possibly hope to participate in a policy process that often seems designed precisely to nullify their influence?

The question of intelligence budget disclosure provides some lessons first of all in what does not work:

Traditional checks and balances are not sufficient. Classification of the intelligence budget total has not been justified on its merits for many years, if it ever was, yet Congressional overseers failed to correct it. Budget disclosure was first recommended by a Congressional committee in 1973, and for the next two and a half decades was the topic of numerous hearings, sense of the Congress resolutions, and floor amendments-- to no avail.

Official Commissions do not work. The 1996 Aspin-Brown Commission on the Roles and Capabilities of the U.S. Intelligence Community was specifically tasked by Congress to examine the question of budget disclosure, and concluded unanimously that the President should declassify the total figure. But the President did not accept the recommendation, deflecting it to Congress, and Congress-- including two equivocal members of the Commission itself-- rejected it. (However, the Commission report did elicit a presidential statement that the budget could and should be declassified. This statement would later prove essential to the legal argument that compelled CIA to disclose the figure.)

Newspaper editorials and coalition-building could not do the trick either. Countless hours of public interest advocacy have been expended and a vast assortment of indignant editorials have been published over the years in an effort to promote budget disclosure-- all without visible effect.

Given this discouraging history of intransigence, any shift in intelligence disclosure policy has to be cause for wonderment.

Among other things, the budget disclosure is a tremendous vindication of the Freedom of Information Act (FOIA). With all of its limitations, this amazing law makes it possible for an ordinary citizen to alter a longstanding national policy (especially if he is lucky enough to have Kate Martin of the Center for National Security Studies represent him). One owes a debt of thanks to that previous generation of upstanding legislators and activists who created the FOIA. It is doubtful that their achievement could be replicated in today's political environment.

The decision to declassify the budget total casts a particularly embarrassing light on the current Congress. Earlier this year, both the full House and the full Senate voted to oppose disclosure of the budget total, calling into question their understanding of intelligence and national security. ("I wouldn't be surprised to see a bill introduced next year requiring classification of the intelligence budget," said one astute House staffer.) Future histories of intelligence policy will record these votes as a new low in the decline of intelligence oversight. And the interested public must conclude that today's Congressional overseers cannot be depended on to exercise effective checks and balances on the intelligence bureaucracy.

More fundamentally, budget secrecy is just one of a large set of policy issues that demand a principled response-- but which offer no political advantage to anyone. In such cases, decision makers are called upon to do the right thing without any expectation of reward. There was no large constituency mobilized around this issue and, unlike intelligence contractors, advocates of greater openness do not even donate money to help re-elect members of the intelligence committees. So what could they expect?

Because there was no real political or financial gain involved for either advocates or opponents, budget disclosure became stalled in a kind of permanent equilibrium between the executive and legislative branches, where each sought to shift responsibility on to the other. The good news is that this equilibrium eventually became so precarious that a non-governmental entity, a public interest group, could finally perturb it with a simple Freedom of Information Act request.

Next: Solidify the New Status Quo

The initial disclosure of the 1997 budget will create new opportunities for further disclosures, as Congress and the intelligence bureaucracy begin to understand that budget disclosure has no adverse impact whatsoever on national security, and is really not that big a deal.

The first order of business is to firmly establish the new status quo, so that the annual budget total is routinely disclosed, including both the amount requested and the amount appropriated. We are not there yet. "It is important to note that the DCI's [declassification] action was specifically limited to the top line of the FY 1997 budget," wrote Richard J. Wilhelm, executive director for intelligence community affairs, in a 27 October memo to the heads of all the intelligence agencies. "It is inappropriate to release any [further] information... at this time."

So far, CIA has refused to declassify the budget total for FY 1998, which began October 1. "Disclosure of future aggregate figures will be considered only after determining whether such disclosures could cause harm to the national security by showing trends over time," said DCI George Tenet in his October 15 statement. But the legal argument for declassification of the 1998 budget total is identical to the one which proved effective in forcing disclosure of the 1997 budget, and therefore declassification of the new budget total seems entirely achievable, even if it takes another lawsuit. A FOIA request for that number is already pending.

"We will continue to protect from disclosure any and all subsidiary information concerning the intelligence budget: whether the information concerns particular intelligence agencies or particular intelligence programs," added Mr. Tenet.

But "this is simply counterfactual," observed John Pike of FAS, since a good deal of "subsidiary information" about intelligence budgets and programs is already unclassified, not including information that can be inferred from open sources. (See, e.g., "A Guide to Intelligence Programs").

Get Right with the Constitution

An even more important objective is to finally achieve an honest federal budget, which does not exist today because of the cold war practice of concealing some intelligence agency funding in the accounts of other agencies-- which has meant that even the unclassified budget numbers are distorted and false.

The outstanding anomaly is the concealment of spending for the Central Intelligence Agency within the Air Force "other procurement" accounts, so that the Air Force budget is inflated, appearing much larger than it is.

The practice of hiding one agency's budget inside another's would seem to be a clear violation of constitutional principles, and it is poor legislative hygiene to boot. An honest budget that conforms with the Constitution-- at least down to the agency level-- could be achieved by declassifying the $3 billion CIA budget so that it could stand on its own. Even members of Congress who are indifferent to secrecy policy might be inclined to support an end to this cold war corruption of the federal budget.

As a first step towards this goal, FAS has submitted an FOIA request to the Defense Department, asking the Department to disclose the size of the true defense budget-- not including the "hidden" CIA funding.

International Dimensions

The disclosure of the 1997 intelligence budget total received an appropriate, even generous degree of attention and coverage in the U.S. news media. The story was deemed newsworthy, though hardly earthshaking.

Internationally, however, the news that the CIA had been compelled to disclose the intelligence budget after 50 years was received with real enthusiasm, and seemed to capture the imagination of news editors around the world. The International Herald Tribune and Israel's Ha'aretz reported the disclosure on their front pages. The BBC's Latin America Service analyzed the story for its Spanish-speaking listeners. Numerous other news outlets from Warsaw to Sydney believed that it was something their readers should or would want to know.

This unexpected degree of interest serves as a reminder that citizens in other countries still look to the United States to set the standard for how a democracy is supposed to function, and to demonstrate how much "openness" can be achieved. In this way, openness can lead to more openness. Already, we are told, citizens of other countries are invoking the publication of the U.S. intelligence budget in support of efforts to reduce budget secrecy in their own countries.

Secret Spending in Argentina

Decades of controversy concerning the U.S. "black budget" are finding a new resonance around the world, and notably in Argentina.

The critics of secret spending in Argentina are "twisted and irresponsible," wrote Argentine President Carlos Menem on September 24 in the newspaper Clarin.

Menem is full of frijoles, replied former President Raul Alfonsin two days later, if we understood his Spanish correctly. "Just by looking at the national budget," Alfonsin wrote, "you can see the excessive growth, year by year, in allocations of secret funding, the increase the areas of government that receive them, the difficulties in controlling them, and their indiscriminate utilization."

In short, the controversy over secret government spending has matured to a new and exciting degree in Argentina.

The Argentine black budget is explored in a recent paper entitled "Las Dimensiones Secretas del Gasto P£blico: Exceso y Arbitrariedad" (The Secret Dimensions of Public Expenditures: Excess and Arbitrariness) by Eduardo E. Estevez and Miguel Pesce of the Centro de Estudios para el Cambio Estructural in Buenos Aires.

"We focus not only on the secret budget, its figures, its increases, the lack of congressional oversight, its evolution up to 1997, but on other aspects of secrecy as well," Dr. Estevez told S&GB. It is particularly interesting to note that his analysis is informed in part by the debates over secret spending in the United States.

The Public as an Intelligence Customer

"The intelligence agencies [must] treat the American people as their customers," declared Sen. Robert Kerrey on November 6. "In other words, the agencies must put priority and resources on their declassification efforts, they must respond faster to freedom of information requests, and they must use and disseminate open source information the public can use to understand their world better and make better decisions."

"The days when intelligence was exclusively a secret activity for an elite inside the beltway are over, and if intelligence is to retain its claim on the public's resources and rebuild the public's full respect, they ought to be over," Sen. Kerrey said on the Senate floor.

The idea of the public as a customer for intelligence is explored further in S&GB 62 (October 1996).

Nixon Goes Wild

It must have been clear to everyone that President Nixon was losing his grip when he started demanding... declassification! The following exchange took place on May 14, 1973 and was published in the new book Abuse of Power: The New Nixon Tapes, edited by Stanley I. Kutler (The Free Press, 1997 p. 490).

"PRESIDENT NIXON: I'm going to ask you to do something. Haldeman never did it, Ehrlichman never did it, nobody else, because this Goddamn Kissinger is always stopping them. Now, look. I want the Diem and the Bay of Pigs [documents] totally declassified and I want it done in 48 hours. Now, you tell, you tell Haig that, and it'll drive him up the wall, too. But I want it done. Do you understand? This is ten years old. Declassify it. We've got a couple of assholes working on this thing. You see any reason why it shouldn't be declassified, Ron? Huh?

"ZIEGLER: No, I see no reason it shouldn't be declassified.

"NIXON: I want them to start getting off their ass to start declassifying things, and about next week we'll say, anything that's ten years or more old, we're just going to get out. But now you follow up on that. Will you do that?"

Needless to say, Nixon's instructions were ignored.

Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.

The FAS Project on Government Secrecy is supported by grants from the Rockefeller Family Fund, the Greenville Foundation, the Stewart R. Mott Charitable Trust, the HKH Foundation, and the John S. and James L. Knight Foundation.

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