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 OPPOSITION TO DEFENDANT'S REQUEST FOR LEAVE
TO FILE CLASSIFIED DECLARATION OF DCI GEORGE J. TENET

Plaintiff Steven Aftergood respectfully opposes defendant's request for leave to provide a classified declaration of Director of Central Intelligence ("DCI") George J. Tenet for the Court's ex parte, in camera review. It is argued that DCI Tenet's classified declaration should be rejected due to material false statements that were made in his unclassified sworn declaration, as well as other acts of bad faith that render his ex parte assertions unreliable.

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. In support of its motion for summary judgment, defendant submitted an unclassified declaration of DCI George J. Tenet (hereinafter "Unclass. Tenet Decl."), that was served on the plaintiff, and requested leave to provide a classified declaration for the Court's ex parte, in camera review.

Plaintiff urges the Court to turn away the classified declaration on grounds that declarant Tenet cannot be relied upon to provide accurate testimony concerning intelligence budget classification issues. As evidence of this admittedly harsh assertion, plaintiff presents the false and misleading statements made by DCI Tenet in his unclassified declaration, along with related acts of bad faith.

Background

Reliance on in camera review of classified affidavits is always problematic. It is a "...distortion of normal judicial process, since it combines the element of secrecy with the element of one-sided, ex parte presentation." Arieff v. U.S. Dept. of Navy, 712 F. 2d 1462, 1469 (1983).

The court can choose not to accept a classified affidavit. "[W]hen an affidavit disclosing information assertedly exempt from production under the FOIA is proffered, we think that the district court -- at least as a general matter -- is limited to the stark choice of receiving it ex parte and in camera, or receiving it not at all." Id., at 1470.

"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).

Argument

DCI Tenet has squandered his credibility on the subject matter of this proceeding by asserting material false statements under oath, by presenting evidence in a tendentious and misleading manner, and by other acts of bad faith. While these defects can be exposed and challenged in an adversarial proceeding, they render DCI Tenet unreliable as an ex parte declarant on questions of intelligence budget classification policy.

1. False and Misleading Statement Regarding Agency Appropriations

Director Tenet stated in his unclassified sworn declaration that the amounts and purposes of individual agency appropriations are not disclosed:

See Unclassified Tenet Declaration, 14.

This is untrue. Appropriation levels and descriptive information concerning Department of Energy intelligence activities are published each year in the Energy and Water Development Appropriations Act in unclassified form. See Declaration of A. Bryan Siebert in this proceeding ("Siebert Decl.") at 3. See Declaration of Steven Aftergood in this proceeding ("Aftergood Decl.") at 15.

This is a material falsehood because the unclassified status of the Energy Department intelligence program constitutes a thorough and complete refutation of the defendant's overall argument. Just as the rather small DOE aggregate of classified and unclassified intelligence expenditures can be published without damage to national security or compromise of intelligence sources and methods, the same thing must be true a fortiori of the overall aggregate budget. That is because it is much easier to assemble a jigsaw puzzle of ten pieces than it is to assemble one of ten thousand pieces. Siebert Decl., 9.

By denying and omitting the fact of the unclassified status of the Energy Department intelligence program, DCI Tenet misled the Court.

2. False and Misleading Statement Regarding Classification of "Subsidiary" Information

Director Tenet stated in his unclassified declaration, quoting his own earlier statement, that "[W]e 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." Unclass. Tenet Decl., 16.

This is false. Defendant does not protect "any and all subsidiary information concerning the intelligence budget." Rather, there are numerous cases in which intelligence agencies themselves have published subsidiary spending figures together with descriptions of the particular programs they fund. Aftergood Decl., 16-18. The aggregate intelligence budget includes both classified and unclassified program elements. Siebert Decl., 5.

3. Misleading Truncation of Evidence

Director Tenet included a ten-page attachment to his sworn declaration as Attachment 1. But he truncated it in such a way as to obscure its date, which appears at the bottom of the original web-based source document, its footnoted sources and the location of the untruncated source document. Aftergood Decl., 32-24.

This is misleading because the concealed information is directly relevant to this proceeding. The document was published in 1996, a year before defendant declassified the 1997 budget total and two years before defendant declassified the 1998 budget total. Pike Decl., 3.

Although the Rules of Evidence permit the use of summaries, DCI Tenet failed to indicate that his attachment was in any material way incomplete. Nor did he provide a citation to the complete source document. This is an act of bad faith.

4. Failure to Declassify Antiquated Budget Data

DCI Tenet has failed to declassify historical intelligence budget information that no longer warrants classification. Specifically, he has consistently failed to declassify the 1947 and 1948 intelligence budget totals that have been sought under the FOIA since 1995. Aftergood Decl., 19-23. This is a violation of the FOIA and of Executive Order 12958, as amended. It calls into question DCI Tenet's professional judgment on intelligence budget classification policy and is an indication of bad faith. Id., 23.

Conclusion

In any contested proceeding, it is natural for a party to present evidence in the light that is most favorable to its case and to deemphasize conflicting evidence. But as argued above, DCI Tenet (or whoever drafted his declaration) has done more than that. He has made assertions under oath that are counterfactual; he has omitted material facts that conflict with his arguments; and he has presented evidence in a tendentious manner. [1]

To put it another way, I believe that the adversarial process in this proceeding has significantly enriched the record and provided the court with material information that an ex parte proceeding alone would not have generated.

Unless the Court determines that Mr. Tenet's representations in his unclassified declaration are faithful, accurate and reliable, and that plaintiff's arguments to the contrary are without foundation, then plaintiff respectfully urges that Mr. Tenet's classified declaration be excluded from ex parte consideration in this proceeding.

Dated: May 5, 2003

[NOTES]

1. I regret the harsh tenor of these remarks, particularly since in other contexts I am an admirer of Mr. Tenet.