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.                    )
___________________________________)

PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
AND OPPOSITION TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Steven Aftergood respectfully cross-moves for summary judgment in this action, and opposes defendant's motion for summary judgment. In support of this cross-motion and opposition, plaintiff relies upon the accompanying memorandum, sworn declarations of A. Bryan Siebert, John Pike and Steven Aftergood, statement of undisputed material facts, and reply to defendant's proposed statement of undisputed material facts. Plaintiff moves separately to oppose defendant's request for leave to file a classified declaration for the Court's ex parte, in camera review. A proposed order consistent with this motion is attached.

Dated: May 5, 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.                    )
___________________________________)

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
AND OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Introduction

This is a Freedom of Information Act proceeding in which plaintiff pro se Steven Aftergood seeks declassification of the aggregate intelligence budget figure for Fiscal Year 2002. The requested information has been denied by defendant Central Intelligence Agency ("CIA"), which moved for summary judgment on April 4, 2003. Plaintiff opposes defendant's motion and cross-moves for summary judgment based on evidence that the requested information is not properly classified or otherwise exempt from the Freedom of Information Act.

Normally, in national security FOIA cases, an agency's views as to the potential adverse effects resulting from public disclosure of a classified record are to be accorded substantial weight. Summary judgment may be granted on the basis of agency affidavits if they are reasonably specific and detailed, if they demonstrate that the withheld information logically falls within a claimed exemption, and if they "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

In this case, it is argued below, the defendant's affidavit is controverted both by contrary evidence in the record and by evidence of agency bad faith. Defendant has not only omitted material facts, but has materially misrepresented the facts of this case and exhibited a pattern of bad faith. Defendant accordingly cannot meet its burden of proof. However, plaintiff does not merely oppose summary judgment for the defendant, but seeks rather to demonstrate affirmatively that summary judgment for the plaintiff should be granted on the basis of evidence and material facts as to which there is no genuine dispute.

Contrary Record Evidence

A. Publication of DOE Intelligence Appropriation Amount

In his unclassified declaration, Director of Central Intelligence George J. Tenet falsely stated that the amounts and purposes of individual agency appropriations are not disclosed:

See Unclassified Tenet Declaration, 14.

In fact, however, the amount of the annual budget appropriation for DOE intelligence programs is unclassified and is publicly identified each year.[1] Declaration of A. Bryan Siebert, 3. Ordinarily, the DOE intelligence budget appropriation appears in the annual Energy and Water Appropriations Act. Declaration of Steven Aftergood, 15.

The DOE intelligence appropriation includes spending for the National Foreign Intelligence Program (NFIP), the amount of which is classified. Other portions of the DOE intelligence budget are unclassified. Siebert Declaration, 7.

Annual publication of the DOE intelligence appropriation has not impeded the conduct of classified DOE intelligence programs or led to their exposure. Siebert Decl., 7. Nor does annual publication of the DOE intelligence appropriation pose any threat to intelligence sources and methods. Siebert Decl., 8.

Because Director Tenet presented false and misleading information under oath on a subject upon which he is presumptively expert, his categorical statement on this point is not simply wrong but also constitutes an act of bad faith.

B. Aggregate Spending Figures Do Not Compromise Sensitive Information

The underlying premise of defendant's argument is that publication of aggregate spending levels for intelligence programs can somehow place the content of those programs at risk of disclosure or compromise. This premise has been proven false in the case of Department of Energy intelligence programs, as discussed above. It can also be shown to be more broadly untrue with respect to classified programs generally.

The absence of any nexus between disclosure of aggregate spending for classified programs and increased vulnerability of those programs is demonstrated by the fact that the White House recently requested, and Congress appropriated, an unclassified aggregate sum for classified programs as part of a supplemental appropriations request to support Operation Iraqi Freedom and the war on terrorism. Aftergood Decl., 25-6.

The publication of this aggregate amount for classified war-related programs even in time of impending conflict gives the lie to CIA's rhetorical arguments for withholding the aggregate intelligence budget total. Thus, there is no obstacle to publication of such aggregate budget numbers, even if enemies were to "combine this information with other clandestinely obtained information" and "share their analysis of it with other adversaries." Aftergood Decl, 27-28.

It is not possible to "reverse engineer" the budget total in order to derive information about its specific component parts. Declaration of John Pike, 7. It is not even possible to take previous disclosures of the intelligence budget total from 1997 and 1998 and to retrospectively identify in the published budget where this spending must have been located. Pike Decl., 8.

While foreign adversaries may well be engaged in assembling a "mosaic" of many pieces of information about U.S. intelligence, such adversaries would not be aided by disclosure of the total intelligence budget appropriation even if they also had access to clandestinely gathered information. The aggregate budget figure is not the missing piece of any puzzle that would assist in discovering new information about U.S. intelligence programs. Pike Decl., 9.

That is because the size of the aggregate figure is not an indicator of intelligence programs and priorities. The aggregate budget figure is not a coherent, integrated totality. Pike Decl, 9. Rather, it is the sum of three independently generated budget aggregations the National Foreign Intelligence Program (NFIP), the Joint Military Intelligence Program (JMIP), which are themselves composed of numerous sub-programs, and Tactical Intelligence and Related Programs (TIARA), which is a loose and shifting amalgam of miscellaneous intelligence-related programs. Id.

As a result, what we call the "intelligence budget total" is an arbitrary construct that cannot be meaningfully correlated with any particular intelligence program or set of programs. Pike Decl., 6. Its disclosure, while valuable to the public, poses no threat to national security or intelligence sources and methods. Aftergood Decl., 33. Pike Decl., 10.

Bad Faith

C. Continued Classification of 1947-1948 Budget Totals Demonstrates Bad Faith

The continued classification of the intelligence budget totals from 1947 and 1948, eight years after they were requested under the FOIA and notwithstanding declassification of the budget totals from 1997 and 1998, shows that defendant is unable or unwilling to objectively assess the sensitivity of intelligence budget data, such as the information at issue in this case. There is no plausible national security construct which both permits declassification of the 1997 and 1998 budget totals and prohibits declassification of the 1947 and 1948 budget totals. Aftergood Decl., 21.

If the 1997 and 1998 budget totals can be declassified without damage to national security, as they have been, it is self-evident that the same category of information from 50 years earlier can also be safely declassified. Likewise, if the 1997 and 1998 declassifications did not compromise intelligence sources and methods, it is obvious that the figures from half a century earlier could not do so. The inescapable conclusion is that defendant CIA has been acting in bad faith. Defendant has improperly withheld total budget data for reasons other than national security and the protection of intelligence sources and methods. Id.

Director Tenet has been personally advised of the continued classification of this antiquated budget information but has failed to declassify it. This is a violation of executive order and an act of bad faith. Aftergood Decl., 22-23.

D. Tendentious Presentation of Evidence

Director Tenet included a ten-page attachment to his sworn declaration as Attachment 1. This document was truncated in a way that was likely to mislead the Court by obscuring its date, its footnoted sources and the location of the complete document. Aftergood Decl., 30-32.

The unacknowledged truncation of this attachment conceals the date printed at the end of the document indicating that it was written in 1996, i.e. before DCI Tenet declassified the 1997 and 1998 intelligence budget totals. Pike Decl., 3. The availability of this information in the public domain presented no impediment to the sequential declassification of the 1997 and 1998 budget totals. Id.

Defendant not only did not indicate that its attachment was truncated, it failed to provide a source citation that would enable the Court to discover this fact on its own. Aftergood Decl., 32. At a minimum, this is unseemly.

Summary of Argument in Opposition to Summary Judgment

The defendant's motion for summary judgment cannot be granted if its underlying affidavit is controverted by contrary evidence in the record and by acts of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

In this case, there is contrary record evidence as well as bad faith, as detailed above. The fact that DOE intelligence spending is routinely published and described, and defendant's denial of that fact, is an instance of both contrary record evidence and bad faith.

"Where there is evidence of bad faith on the part of the agency, the representations of the agency lose all trustworthiness." Allen v. Central Intelligence Agency, 636 F.2d 1287, 1298 (1980).

If the agency's representations are not trustworthy, defendant has no case.

PLAINTIFF'S AFFIRMATIVE CASE FOR SUMMARY JUDGMENT

Introduction

The requested budget figure must be disclosed under the Freedom of Information Act unless it is properly classified and therefore exempt under FOIA exemption (b)(1) and/or unless it is exempt under exemption (b)(3) as pertaining to intelligence sources and methods.

Ordinarily, it is very difficult for a plaintiff in a FOIA lawsuit to prove in the abstract that the information he requested is not properly classified and does not pertain to intelligence sources and methods. Mere assertion of contrary opinion is not enough.

But in this case there is substantial empirical evidence to justify those conclusions. This evidence includes (1) the annual publication of the aggregate appropriation for Department of Energy intelligence programs; and (2) the previous publication of the intelligence budget total for two consecutive years in 1997 and 1998. This evidence provides an objective framework within which the Court may render its own de novo assessment of the status of the requested information.

Annual Publication of DOE Intelligence Appropriation

The annual publication of the amount of funding appropriated for Department of Energy (DOE) intelligence programs constitutes a thorough and specific refutation of defendant's rationale for withholding of the intelligence budget total.

The intelligence elements of the DOE form part of the United States Intelligence Community. 50 U. S. Code 401(a)(4)(H). Yet DOE routinely does what Director of Central Intelligence Tenet said is not done, could not be done and should not be done: It publishes and describes the purposes of its annual agency-level appropriation for intelligence. By doing so, DOE proves each year that aggregate intelligence spending levels can be routinely disclosed without damage to national security or hazard to intelligence sources and methods. Aftergood, Decl., 14. Siebert Decl., 7-10.

The DOE intelligence appropriation includes spending for the National Foreign Intelligence Program (NFIP), the amount of which is classified. Other portions of the DOE intelligence budget are unclassified. Siebert Declaration, 7. Attachment S-1 to Siebert Declaration, at pp. 1-2.

The overall intelligence budget total likewise contains both classified and unclassified programs. Siebert Decl., 5. Aftergood Decl., 16-18.

Annual publication of the DOE intelligence appropriation has not impeded the conduct of classified DOE intelligence programs or led to their exposure. Siebert Decl., 7. Nor does annual publication of the DOE intelligence appropriation pose any threat to intelligence sources and methods. Siebert Decl., 8.

The DOE intelligence appropriation is much smaller than the total government-wide intelligence budget, but that would make its disclosure more sensitive, not less sensitive, since it would be simpler for an adversary to identify its component parts. Siebert Decl., 9.

Just as the rather small DOE aggregate of classified and unclassified intelligence expenditures can be published each year without damage to national security or compromise of intelligence sources and methods, the same thing must be true a fortiori of the larger, more diffuse and less programmatically coherent government-wide intelligence budget. It is much easier to assemble a jigsaw puzzle of ten pieces than it is to assemble one of ten thousand pieces. Id., 9.

Previous Publication of Intelligence Budget Totals

Arguments pro and con about the consequences of aggregate intelligence budget disclosure no longer need be entirely speculative, since publication of budget totals has already occurred in fact in two consecutive years, 1997 and 1998. Aftergood Decl., 2-3. These disclosures provide an empirical point of reference for evaluating other disclosures.

Defendant does not argue that these two successive disclosures were a mistake, e.g. that they caused unexpected damage to national security or compromised intelligence sources and methods. No evidence has been offered to support such an argument. Nor would any such assertions be credible in the face of routine disclosures of DOE intelligence appropriations.

It is true that the court upheld defendant's denial of the requested 1999 budget figure. But in that case the court was not presented with the contrary record evidence and the evidence of bad faith offered above.

Besides, even if one were to conclude as the court did in 1999 that some aggregate budget figures may be withheld, the requested 2002 budget information is demonstrably less sensitive than the denied budget figure for 1999. Moreover, it is even less sensitive than the 1998 and 1997 budget figures that have been disclosed.

A. 2002 Figure is Less Sensitive than Denied 1999 Figure

Because there have been no disclosures of total budget figures since 1998, the FY 2002 budget total is materially distinct from the denied FY 1999 figure, which would have been the third consecutive disclosure of the annual budget total. In contrast, the FY 2002 figure stands alone; neither the three preceding years' totals nor the following year's total have been released. As a result its disclosure would not reveal trend information. Aftergood Decl., 7-10.

B. 2002 Figure is Less Sensitive than Released 1998 Figure

The requested budget total for FY 2002 is also objectively less likely to damage national security than the FY 1998 budget figure that has previously been declassified, and less likely to compromise intelligence sources and methods, because the 1998 figure was the second consecutive annual declassification of the intelligence budget total. Consequently, its release did in fact constitute disclosure of year-to-year "trend information." Declassification of the FY 2002 figure would be less revealing simply because neither the preceding nor the following year's budget total has been disclosed, which was not the case in 1998. Aftergood Decl., 11.

C. 2002 Figure is Less Sensitive than Released 1997 Figure

The requested 2002 budget total is also objectively less sensitive than was the FY 1997 figure at the it was released because of the fact that it is no longer current information. The 1997 budget total was disclosed in October 1997, shortly after the FY 1997 budget year ended on September 30. (The FY1998 budget total was disclosed in the midst of FY 1998 itself, in March 1998.) Today, in contrast, we are more than halfway through FY 2003 and Congress is marking up the FY 2004 budget. The FY 2002 intelligence budget total is, by comparison, historical information. Other things being equal, classified information becomes less sensitive with the passage of time. Accordingly, the FY 2002 total is less sensitive today than the FY 1997 budget total was when it was first officially declassified in October 1997. Aftergood Decl., 12.

Thus, the empirical facts of previous and ongoing intelligence budget disclosures make it possible to independently assess the sensitivity of the requested information in an objective, non-rhetorical context. Such an assessment leads to the conclusion that the FY 2002 budget figure falls squarely within the boundaries of what may be safely disclosed and what, having been requested under the Freedom of Information Act, must be disclosed.

CONCLUSION

For all of the foregoing reasons, the Court is respectfully asked to enter summary judgment for the plaintiff.

Dated: May 5, 2003.

[NOTES]

1. This fact was not presented to the court in the 1999 proceeding Aftergood v. Central Intelligence Agency, Civ. No. 98-2107 (TFH), where the court declined to compel disclosure of the intelligence budget total for FY 1999. In that case, the court relied on DCI Tenet's erroneous but uncontroverted declaration and even incorporated it into its ruling. Thus: "Appropriations for the CIA and other agencies in the intelligence community are hidden in the various appropriations acts.... The locations are not publicly identified...." Attachment A to Defendant's Memorandum of Points and Authorities, at page 8. As the court now knows, this description is controverted by the publicly identified Department of Energy intelligence appropriation.


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.                    )
___________________________________)

PLAINTIFF'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, plaintiff pro se Steven Aftergood respectfully submits the following statement of material facts as to which there is no genuine dispute:

1. The intelligence elements of the Department of Energy form part of the United States Intelligence Community. 50 U.S. Code 401(a)(4)(H).

2. The annual Department of Energy budget appropriation for intelligence, which includes both classified and unclassified programs, is openly published each year. Siebert Decl., 3-8.

3. There has been no finding of damage to national security or compromise of intelligence sources and methods resulting from annual disclosure of the DOE appropriation for intelligence programs. Siebert Decl., 7-8. Attachment S-1 to Siebert Decl., at page 2.

4. The DOE budget total is comprised of a much smaller number of component programs than is the overall intelligence budget. Id., 9.

5. It is much easier to assemble a jigsaw puzzle of ten pieces than it is to assemble one of ten thousand pieces. Id., 9.

6. The overall budget figure is the sum of three distinct and independently generated budget aggregations. Pike Decl., 5.

7. It is not possible to "reverse engineer" the overall budget total in order to derive information about a particular intelligence program. Pike Decl., 7.

8. None of the three annual overall budget totals immediately prior to FY 2002 has been disclosed. Neither has the budget total immediately following FY 2002 been disclosed. Aftergood Decl., 11.

9. The FY 1998 budget total was officially disclosed even though it immediately followed disclosure of the FY 1997 figure. Id, 6,11.

10. The previously declassified budget totals for FY 1997 and FY 1998 were disclosed in the midst of or very shortly after their respective budget years. Aftergood Decl., 12.

11. Today, well into Fiscal Year 2003, the requested FY 2002 budget figure is no longer current budget information. Id, 12.


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.                    )
___________________________________)

PLAINTIFF'S REPLY TO DEFENDANT'S
PROPOSED STATEMENT OF MATERIAL FACTS

In accordance with Local Civil Rules 7.1(h) and 56.1, Plaintiff hereby replies to Defendant's proposed "statement of material facts as to which there is no genuine dispute." Plaintiff's own proposed statement of material facts as to which there is no genuine dispute, in support of Plaintiff's cross-motion for summary judgment, is presented separately.

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

CIA Proposed Fact 2. That declaration is 28 pages long and is non-conclusory. To the contrary, it is detailed and specific.

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

CIA Proposed Fact 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."

CIA Proposed Fact 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.

CIA Proposed Fact 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.

Proposed CIA Fact 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."

Proposed CIA Fact 8. DCI Tenet has determined that the FY 02 IC aggregate budget figure is currently and properly classified SECRET.

Proposed CIA Fact 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.

Dated: May 5, 2003.