IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

         
___________________________________
STEVEN AFTERGOOD                   )
     Plaintiff,     		   )
                                   )	Case No. 02-1146 (RMU)
v.                                 )
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
     Defendant.                    )
___________________________________)

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant, the United States Central Intelligence Agency, respectfully moves, pursuant to Fed. R. Civ. P. 56, for summary judgment in this action. In support of this motion, defendant relies upon the accompanying memorandum, statement of undisputed material facts, and unclassified declaration of Director of Central Intelligence George J. Tenet. Defendant also relies upon the classified declaration of Director of Central Intelligence (DCI) George J. Tenet. Due its highly classified nature, we respectfully request leave of the Court to provide DCI Tenet's classified declaration upon the Court's request for the Court's ex parte, in camera review. Pursuant to Local Civil Rule 7.1(c), a proposed order consistent with this motion is attached.

Dated: April 4, 2003.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

         
___________________________________
STEVEN AFTERGOOD                   )
     Plaintiff,     		   )
                                   )	Case No. 02-1146 (RMU)
v.                                 )
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
     Defendant.                    )
___________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This is an action under the Freedom of Information Act ("FOIA"). Pursuant to the FOIA, plaintiff pro se Steven Aftergood requested disclosure of the aggregate U.S. intelligence budget for Fiscal Year 2002. Because the FY 02 intelligence budget figure is classified, plaintiff's request was denied. This action followed. It presents one issue: is the classified U.S. intelligence budget exempt from the FOIA's mandatory disclosure provisions?

This plaintiff has litigated -- and lost -- a materially indistinguishable issue in this Court. Aftergood v. Central Intelligence Agency, Civ. No. 98-2107 (TFH), slip op. (D.D.C. Nov. 15, 1999) ("Aftergood I") (holding that the FY 99 intelligence budget request is exempt from disclosure under FOIA) (copy attached as Exhibit A).

Indeed, courts have universally rejected FOIA actions seeking disclosure of aspects of the intelligence budget. E.g., Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (rejecting FOIA suit seeking disclosure of dollar amounts spent by CIA on particular project, as well as methods employed to provide secret funding of project); Halperin v. Central Intelligence Agency, 629 F.2d 144 (D.C. Cir. 1980) (rejecting FOIA suit seeking disclosure of certain expenditures by CIA); Richardson v. Spahr, 416 F. Supp. 752 (W.D. Pa. 1976) (rejecting FOIA suit seeking disclosure of CIA financial transactions from 1947 to 1976), aff'd, 547 F.2d 1153 (3rd Cir. 1976) (Table). See United States v. Richardson, 418 U.S. 166 (1974) (rejecting taxpayer suit seeking to compel disclosure of CIA's expenditures).

There is no material difference between this case and those. The legal principles are well settled. In this motion, we apply those principles to the undisputed facts of this case. Specifically, we demonstrate that the classified FY 02 intelligence budget is exempt from the FOIA's disclosure requirements for two reasons. First, that figure is exempt from disclosure because it is properly classified under Executive Order 13292 in the interest of national defense or foreign policy (FOIA Exemption 1). Second, that figure is exempt because its release would tend to reveal intelligence methods that are specifically exempted from disclosure by statute (FOIA Exemption 3).

For these reasons, the Court should reject plaintiff's attempt to compel disclosure of the classified intelligence budget figure, just as similar attempts have been rejected in other cases.

FACTUAL BACKGROUND

The Intelligence Budget Process. By Congressional and Executive design, the entire intelligence appropriations process is structured to ensure the secrecy of intelligence-related expenditures. Declaration of George J. Tenet ("Tenet Decl."), ¶¶ 10-15.1

For over fifty years, the Executive Branch, when seeking intelligence appropriations, has protected the appropriations figures to prevent the identification of intelligence activities that could be revealed by disclosing trends in intelligence spending, as well as by any correlation between specific spending figures and particular intelligence programs. Id. ¶ 11; see Military Audit Project, 656 F.2d at 733; Halperin, 629 F.2d at 160. The resulting intelligence appropriations for the various intelligence programs are contained in the annual appropriations of various agencies, and only limited general information is contained in open, public appropriations bills. Id. ¶ 12. The funds are then made available to the CIA and other agencies with intelligence programs under the secret transfer-of-appropriations provisions of the CIA Act of 1949. Military Audit Project, 656 F.2d at 733; Halperin, 629 F.2d at 160.

Although there has been substantial Congressional debate about proposals to require public release of the total budget appropriation for intelligence activities each year, no such proposal has been enacted. Indeed, on at least three occasions in recent years, Congress has declined to enact legislative proposals which would require the United States to disclose the aggregate intelligence budget on an annual basis. Tenet Decl. ¶ 14.

Prior Requests for the Intelligence Budget. Prior to 1996, the CIA had never revealed either the intelligence budget appropriation or intelligence budget request. That information had been withheld because of concern that its release would assist those who would harm the United States and kill United States citizens. Those who would harm the United States and kill its citizens gather information about the intelligence budget and attempt to obtain a picture of the United States' intelligence priorities, strengths, and weaknesses by analyzing that information. Tenet Decl. ¶¶ 22, 25, 27, 28.

That analytical process resembles building a puzzle, and like building a puzzle, the more pieces that are identified, the easier it is to correctly assemble the puzzle. See Tenet Decl. ¶ 28. Thus, the need to protect as-yet undisclosed budget information grows stronger after some budget information -- some puzzle pieces -- are disclosed. Id. ¶ 27. In this case, plaintiff seeks the total budget figure, which is equivalent to the single most [sic] part puzzle piece, the border. Id. ¶ 28. DCI Tenet testifies that "[o]nce the border is established it is much easier to place the known jigsaw pieces in place and to experiment with various ways of making suspected pieces fit to attain the clearest and most cogent picture of intelligence activities, priorities, vulnerabilities, and strengths." Id.

Despite the secret nature of the intelligence budget process and concerns about harm to national security, the CIA has not reflexively rejected requests for the aggregate intelligence budget figure. In October 1997, pursuant to another FOIA request by this plaintiff, DCI Tenet voluntarily disclosed that the aggregate amount appropriated for intelligence and intelligence-related activities for fiscal year 1997 was $26.6 billion. Tenet Decl. ¶ 16.

In March 1998, pursuant to another FOIA request by plaintiff, the CIA again voluntarily disclosed that the aggregate amount appropriated for intelligence and intelligence-related activities for fiscal year 1998 was $26.7 billion. Id. ¶ 17. Before releasing the FY 98 figure, the DCI carefully evaluated whether release of the 1998 appropriation, when compared with the 1997 appropriation, could cause harm to the national security by showing trends over time, or otherwise tend to reveal intelligence sources and methods. Id. He concluded that it would not. Id.

In April 1999, plaintiff again submitted a FOIA request, this time seeking the FY 99 aggregate intelligence budget. DCI Tenet declined to release the FY 99 aggregate intelligence budget because, in his judgment, disclosure of that figure reasonably could have been expected to harm the national security in ways he could identify and describe, and to reveal intelligence methods. Id. ¶ 18. Upon the denial of his request, plaintiff filed a FOIA action in this Court. The Court entered summary judgment against plaintiff's claim. Aftergood I at 10 (copy attached as Exhibit A).

Plaintiffs Current FOIA Request. More recently, plaintiff requested, pursuant to the FOIA, the FY 02 aggregate intelligence budget. Once again, this request was given careful consideration by DCI Tenet. Tenet Decl. ¶ 19. In determining whether to release the FY 02 figure, DCI Tenet took into account several significant factors. Id. ¶ 20. DCI Tenet considered the Intelligence Community's increased efforts in the war on terrorism and in responding to the Middle East situation. Id. ¶ 21. He considered the fact that terrorist organizations and hostile nations share intelligence information and analyses, and thus the likelihood that any disclosure (and analysis of any disclosure) will become widely known to those who would harm the United States and kill its citizens. Id. ¶¶ 22-24.

Equally important, if not more so, he considered the consequences of releasing the FY 02 intelligence budget figure in light of the information already possessed by the United States' adversaries. Id. ¶¶ 25-28. DCI Tenet explains that, in addition to the releases of the FY 97 and FY 98 budget figures, he made limited disclosures about aspects of the FY 02 budget in his congressional testimony in October 2002 on the subject of the September 11 attacks. Id.

In his declaration, DCI Tenet specifically testifies that "I also know that some of the information I revealed on that occasion constitutes additional pieces of the puzzle that could assist our adversaries in deriving information about our intelligence activities.... [I]n light of my limited disclosure in October 2002, the need to protect the overall total budget figure is even stronger." Id. ¶ 27 (emphasis added); see id. ¶ 35. Accordingly, DCI Tenet refused to make a discretionary release of the FY 02 budget figure.

ARGUMENT

By means of this action, plaintiff seeks the "aggregate U.S. intelligence budget total for fiscal year 2002." Compl. ¶ 1. Because this action "seeks disclosure of a single budget figure for FY 2002," Compl. ¶ 5, there is no dispute about issues as adequacy of search and segregability. The sole issues for the Court's determination are the propriety of defendant's invocation of Exemption 1 (national security) and Exemption 3 (statutory exemption) in withholding the FY 02 intelligence budget figure. We demonstrate below that both of these invocations were proper under settled law and that therefore summary judgment should be entered for defendant.

I. SUMMARY JUDGMENT IS THE APPROPRIATE MEANS OF RESOLVING THIS FOIA ACTION

Summary judgment is the appropriate means of resolving this action. In general, summary judgment is the procedural vehicle by which most FOIA actions are resolved. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified."). While the defendant has the burden of proof on all material issues related to the merits of any claimed FOIA exemptions, see 5 U.S.C. 552(a)(4)(B), summary judgment is to be freely granted where there are no material facts in dispute and the agency is entitled to judgment as a matter of law. See, e.g., Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988); Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1987) (summary judgment appropriate in FOIA cases on the basis of affidavits).

The summary judgment standards are familiar. Rule 56 provides that summary judgment shall be entered "forthwith" if the moving papers before the Court establish "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The materiality of facts is determined by reference to the governing s substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To create a genuine issue, there must be evidence on which the fact finder "could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. "If the evidence is merely colorable ... or is not significantly probative . . . summary judgment may be granted." Id. at 249-50 (citations omitted). To establish that it is "entitled to judgment as a matter of law," the movant must demonstrate that when the governing substantive law is applied to the undisputed material facts, the movant prevails.

The D.C. Circuit has developed a significant body of law addressing the Court's application of the substantive law in national security FOIA Exemption 1 and 3 cases. Recognizing that FOIA provides for the Court to "determine the [applicability of the exemption] de novo," 5 U.S.C. 552(a)(4)(B), it has long been settled in this jurisdiction that in national security Exemption 1 and Exemption 3 cases, an agency's statement is entitled to ... 'substantial weight'." Halperin, 629 F.2d at 147-48 (quoting S. Rep. No. 1200, 93d Cong., 2d Sess. 12 (1974).

Accordingly, the D.C. Circuit has "held that summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than mere conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Id. at 148. "If the agency's statements meet this standard, the court is not to conduct a detailed inquiry to decide whether it agrees with the agency's opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency. Judges, moreover, lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case." Id.

We now demonstrate below that, when viewed in light of the applicable standard, DCI Tenet's declarations readily establish that Exemption 1 and Exemption 3 properly protect the FY 02 budget figure from disclosure. Accordingly, summary judgment is proper here. See, Frugone v. Central Intelligence Agency, 169 F.3d 772 (D.C. Cir. 1999) (affirming entry of summary judgment for CIA based upon CIA declaration in national security FOIA case); Gardels v. Central Intelligence Agency, 689 F.2d 1100 (D.C. Cir. 1982) (same).

II. FOIA EXEMPTION 1 PROPERLY PROTECTS THE FY 02 INTELLIGENCE BUDGET FROM DISCLOSURE

The FY 02 intelligence budget figure is exempt from FOIA's mandatory disclosure provisions under FOIA Exemption 1. See, e.g., Aftergood I (holding that Exemption 1 shielded intelligence budget request from FOIA disclosure); Military Audit Project, 656 F.2d at 736, 736 n.39, 749-750 (holding that Exemption 1 shielded dollar amounts spent by CIA on particular project, as well as methods employed to provide secret funding of project).

Exemption 1 exempts from mandatory disclosure records that are: (1) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and (2) are in fact properly classified pursuant to such Executive Order. 5.U.S.C. 552(b)(1). To demonstrate applicability of Exemption 1, an agency must establish that it has met the substantive and procedural requirements of an executive order on national security. The applicable executive order on national security is Executive Order 13292 ("E.O. 13292"), which is entitled "Further Amendment to Executive Order 12958, as Amended, Classified National Security Information," and which became effective March 25, 2003. Exec. Order No. 13292, 68 Fed. Reg. 15315, 6.3 (Mar. 25, 2003).2

Procedurally, E.O. 13292 provides that information may be originally classified if an original classification authority classifies the information. E.O. 13292 at 1.1(a)(1). Substantively, E.O. 13292 provides that the classification authority must determine that: (1) the information belongs to the U.S. Government; (2) the information falls within one of the enumerated categories in Section 1.4 of E.O. 13292; and (3) the disclosure of the information could reasonably be expected to harm national security in an identifiable manner.3

Based on the unclassified Declaration of George J. Tenet, the CIA has demonstrated that it has followed the proper procedures in classifying the FY 02 intelligence budget. DCI Tenet is an official authorized to exercise original TOP SECRET classification authority. Tenet Decl. ¶ 5; see Presidential Order, National Security Information, 60 Fed. Reg. 53845 (Oct. 13, 1995) (designating DCI as original classification authority).

DCI Tenet has made each of the substantive determinations mandated by E.O. 13292. First, he determined that the FY 02 intelligence budget figure is owned by the United States Government. Tenet Decl. ¶ 32; see E.O. 13292 1.1(a)(2). Second, he determined that the FY 02 intelligence budget figure falls within the category of information listed at Section 1.4(c) of E.O. 13292; namely, "intelligence activities (including special activities), intelligence sources or methods, or cryptology." Id. ¶ 32; see E.O. 13292 1.1 (a)(3) & 1.4(c). Third, DCI Tenet determined that the disclosure of the FY 02 intelligence budget reasonably could be expected to cause identifiable damage to the national security. Id. ¶ 33; see E.O. 13292 1.1(a)(4).

In his declaration, DCI Tenet explains in detail that disclosure of the FY 02 intelligence budget figure reasonably could be expected to cause damage to the national security in at least three ways. In summary, those ways are: first, disclosure of the budget request "reasonably could be expected to assist [the United States'] adversaries in correlating specific spending figures with particular intelligence programs." Tenet Decl. ¶ 34. Second, public disclosure of the FY 02 budget figure reasonably could be expected to free foreign governments' limited collection and analysis resources for other efforts targeted against the United States. Id. ¶ 38. Third, disclosure of the intelligence budget could be expected to provide foreign intelligence services with our own assessment of our intelligence capabilities and weaknesses. Id. ¶ 39.

For these reasons, which are explained in detail in both of DCI Tenet's declarations, DCI Tenet concluded "that disclosure of the FY 02 [Intelligence Community] aggregate budget figure reasonably could be expected to provide foreign intelligence services with a valuable benchmark for identifying and frustrating U.S. intelligence programs.... I have determined that disclosure of the FY 02 IC aggregate budget figure could be expected to cause serious damage to the national security. Therefore, I have determined that the FY 02 IC aggregate budget figure is currently and properly classified SECRET." Id. ¶ 41.4

DCI Tenet's testimony exceeds what is necessary under the applicable deferential standard of review. It is unnecessary for the CIA to establish with certainty that damage to our national security would result from release of the budget request. Halperin v. Central Intelligence Agency 629 F.2d at 149. "The question that Congress has placed before us is only whether the predicted danger is a reasonable expectation; and it is precisely on this point that a court, lacking expertise in the substantive matters at hand, must give substantial weight to agency statements, so long as they are plausible and not called into question by contrary evidence or evidence of agency bad faith." Halperin, 629 F.2d at 149; accord, e.g., Gardels v. Central Intelligence Agency, 689 F.2d 1100, 1106 (D.C. Cir. 1982) (substantial deference is due CIA's determination regarding threats to national security interests because this is "necessarily a region for forecasts in which the CIA's informed judgment, as to potential future harm should be respected.").

In sum, DCI Tenet's declarations establish that the procedural and substantive requirements of Exemption 1 are met in this case. Because the FY 02 intelligence budget is properly exempt from disclosure pursuant to Exemption 1, the Court should enter summary judgment for defendant.

III. FOIA EXEMPTION 3 ALSO EXEMPTS THE FY 02 INTELLIGENCE BUDGET FROM DISCLOSURE UNDER FOIA

In addition to being exempt from disclosure under Exemption 1, the FY 02 intelligence budget is also properly exempt from disclosure under Exemption 3. See, e.g., Military Audit Project, 656 F.2d at 745 (holding that information tending to reveal the secret transfer and spending of intelligence funds is exempt from disclosure under FOIA Exemption 3 as an "intelligence method.").

FOIA Exemption 3 exempts from mandatory disclosure matters that are: "[s]pecifically exempted from disclosure by statute provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld ...." 5 U.S.C. 552 (b)(3).

Only two issues are presented in an Exemption 3 claim. They are: (1) the existence of a qualifying disclosure-prohibiting statute; and (2) the logical inclusion of the withheld information within the scope and coverage of that statute. Central Intelligence Agency v. Sims, 471 U.S. 159, 167 (1985); Fitzgibbon v. Central Intelligence Agency, 911 F.2d 755, 761 (D.C. Cir. 1990). As demonstrated below, both of those requirements are met in this case.

In this case, defendant's invocation of Exemption 3 rests upon 50 U.S.C. 403-3(c)(7). Section 403-3(c)(7) provides that the DCI shall "protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. 403-3(c)(7) (2003).

The Supreme Court long ago concluded that Section 403-3(c)(7) is a qualifying disclosure prohibiting statute within the meaning of Exemption 3. Sims, 471 U.S. at 1675; accord, e.g., Krikorian v. Department of State, 984 F.2d 461, 465 (D.C. Cir. 1993); Fitzgibbon, 911 F.2d at 761 (citing cases). Further, the D.C. Circuit has instructed that "[i]t is settled, in this court, that section [ 403(c)(7)] ... is a statute falling within Exemption 3." Gardels v. Central Intelligence Agency, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (citation omitted). Accordingly, the Court need only consider whether the FY 02 intelligence budget is logically included within the scope of the National Security Act.

The FY 02 intelligence budget figure is within the scope of the National Security Act Section 103(c)(7), which requires the DCI to "protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. 403-3(c)(7) (2003). The Supreme Court has commented that "[p]lainly the broad sweep of this statutory language comports with the nature of the [CIA's] unique responsibilities." Sims, 471 U.S. at 169. The Court continued, "[t]he legislative history of [now 403-3(c)(7)] also makes clear that Congress intended to give the [DCI] broad authority to protect the secrecy and integrity of the intelligence process." Id. at 170. Accord, e.g., Minier v. Central Intelligence Agency, 88 F.3d 796, 801 (9th Cir. 1996) (noting that the ... "'sources and methods' statutory mandate is a "near-blanket FOIA exemption," which is "only a short step [from] exempting all CIA records from FOIA.").

To demonstrate that the FY 02 intelligence budget is within the broad scope of the National Security Act, we are required only to demonstrate that the FY 02 intelligence budget "relates" to intelligence sources or methods. Fitzgibbon, 911 F.2d at 762. That requirement is easily met here. The FY 02 intelligence budget "relates" to a specific intelligence method: the secret transfer and spending of intelligence funds. That intelligence method is statutorily recognized and authorized to be kept secret. 50 U.S.C. 403f & 403j (2003) (providing legal authorization for the secret transfer and spending of intelligence funds).

By way of background, there is no single, separate appropriation for the Intelligence Community. Appropriations for the CIA and other agencies in the Intelligence Community are hidden in the various appropriations acts. Tenet Decl. ¶¶ 14-15; 43-44. The locations are not publicly identified. Id. That protects the classified nature of the intelligence programs that are funded. Id. It also protects the classified intelligence methods that of necessity -- are used to transfer funds to and between intelligence agencies. Id.

Because there are a finite number of places where intelligence funds may be hidden in the federal budget, a budget analyst could construct a hypothetical intelligence budget by aggregating suspected intelligence line items from the publicly disclosed appropriations. Tenet Decl. ¶ 43. An example of the kind of hypothetical intelligence budgets produced by budget analysts is attached to DCI Tenet's unclassified declaration.6

Accordingly, in this case, DCI Tenet has determined that disclosure of the FY 02 intelligence budget would tend to reveal an intelligence method, namely, "how and for what purposes intelligence appropriations are secretly transferred to and expended by intelligence agencies." Id. ¶ 42. Thus, because DCI Tenet has determined that release of the FY 02 intelligence budget would tend to reveal "intelligence methods," and has properly supported that determination, the FY 02 intelligence budget figure is shielded from disclosure by Exemption 3. See, e.g., Military Audit Project, 656 F.2d at 745 (holding that information tending to reveal the secret transfer and spending of intelligence funds is exempt from disclosure under FOIA Exemption 3 as an "intelligence method.").

CONCLUSION

For the foregoing reasons, the Court should enter summary judgment for defendant.

Dated: April 4, 2003.

[NOTES]

1. All references in this brief to DCI Tenet's Declaration are to his unclassified declaration. In his classified declaration, DCI Tenet provides classified bases and explanations for his conclusions that release of the FY 02 intelligence budget reasonably could be expected to cause serious damage to national security and to reveal intelligence sources and methods. Tenet Decl. ¶¶ 28; 36; 40; 44. Those classified bases and explanations cannot be made on the public record. Id.

2. For purposes of this motion, there is no substantive material difference between E.O. 13292 and its predecessor, E.O. 12958. The same provisions appear in both orders, albeit differently numbered. Section 1.2 of E.O. 12958 now appears as Section 1.1 of E.O. 13292. Section 1.5 of E.O. 12958 now appears as Section 1.4 of E.O. 13292.

3. In relevant part, E.O. 13292 provides:

E.O. 13292 at 1.1(a)(l)-(4).

4. DCI Tenet's determination about the potential impact of public disclosure of a budget "benchmark" in the context of other public and clandestinely-acquired information - the so-called "mosaic" approach to classification - has been specifically recognized in Executive Order 13292 and repeatedly validated by courts assessing FOIA Exemption 1 claims. Under E.O. 13292, compilations of even otherwise unclassified information may be classified solely on the basis that the compiled information reveals an additional association or relationship that meets classification standards and is not otherwise revealed in the individual items of information. E.O. 13292, 1.7(e).

In recognizing this approach in Halperin, the D.C. Circuit observed that "[e]ach individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself." 629 F.2d at 150. See also Salisbury v. United States, 690 F.2d at 971 (D.C. Cir. 1982) (acknowledging "mosaic-like nature of intelligence gathering").

5. 50 U.S.C. 403-3(c)(7) is where Section 103(c)(7) of the National Security Act of 1947, as amended, is currently codified. At the time of Sims, Section 103(c)(7) was codified at 50 U.S.C. 403(d)(3)).

6. That analysis was found on the Internet site of the Federation of American Scientists, which was plaintiff's employer in 1999, Compl. ¶ 13, and may well still be. This document serves merely as an example of the kind of detailed budget analysis that foreign government intelligence services are also able to perform (but needn't, since they are available on the Internet).


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

         
___________________________________
STEVEN AFTERGOOD                   )
     Plaintiff,     		   )
                                   )	Case No. 02-1146 (RMU)
v.                                 )
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
     Defendant.                    )
___________________________________)

DEFENDANT'S STATEMENT OF MATERIAL FACTS
AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to Federal Rule of Civil Procedure 56, and Local Civil Rules 7.1 (h) and 56.1, defendant, the Central Intelligence Agency ("CIA"), respectfully submits the following statement of material facts as to which there is no genuine issue:

1. Defendant has submitted an unclassified Declaration of Director of Central Intelligence ("DCI") George J. Tenet.

2. That declaration is 28 pages long and is non-conclusory. To the contrary, it is detailed and specific. See generally Tenet Decl.1

3. DCI Tenet determined that the fiscal year 2002 ("FY 02") intelligence budget figure is owned by the United States Government. Tenet Deel. ¶ 32.

4. DCI Tenet determined that the FY 02 intelligence budget figure falls within the category of information listed at Section 1.4(c) of E.O. 13292; namely, "intelligence activities (including special activities), intelligence sources or methods, or cryptology." Id. ¶ 32.

5. DCI Tenet determined that the disclosure of the FY 02 intelligence budget reasonably could be expected to cause identifiable damage to the national security. Id. ¶ 33.

6. DCI Tenet's unclassified declaration explains in detail that disclosure of the FY 02 intelligence budget figure reasonably could be expected to cause damage to the national security in at least three ways. Tenet Decl. ¶¶ 34-39.

7. DCI Tenet has determined that disclosure of the FY 02 intelligence budget would tend to reveal an intelligence method, namely, "how and for what purposes intelligence appropriations are secretly transferred to and expended by intelligence agencies." Tenet Decl. ¶ 42.

8. DCI Tenet has determined that the FY 02 IC aggregate budget figure is currently and properly classified SECRET. Id. ¶ 41.

9. DCI Tenet has also prepared a highly classified declaration setting forth additional, classified bases for his determinations for the Court's ex parte, in camera review. See Tenet Decl. ¶¶ 28; 36; 40; 44.

Dated: April 4, 2003.

[NOTES]

1. All references to DCI Tenet's Declaration in this statement of undisputed facts are to his unclassified declaration.