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 IN SUPPORT OF HIS
MOTION FOR SUMMARY JUDGMENT
Plaintiff's motion for summary judgment presented evidence to show that disclosure of the aggregate U.S. intelligence budget for fiscal year 2002 would neither damage national security nor jeopardize intelligence methods. In opposition to the motion, defendant Central Intelligence Agency disputed only one of the proposed material facts with a specific citation. Instead of disputing the other proposed facts with citations to the record, as required by Local Civil Rules 7.1(h) and 56.1, defendant purported to find that they are "immaterial."
As a result, it is undisputed that defendant has previously declassified the aggregate intelligence budget in two consecutive years, whereas only one isolated year is at issue in this case. It is undisputed that defendant has previously declassified then-current year aggregate intelligence budget data, whereas the 2002 aggregate figure is no longer current.
It is likewise undisputed that the aggregate budget for Department of Energy intelligence programs is routinely published each year. It is undisputed that annual publication of this figure has led to no compromise of classified Department of Energy intelligence programs and has in no way damaged national security or jeopardized intelligence methods. It is undisputed that the smaller number of components in the Department of Energy aggregate intelligence budget renders its classified programs hypothetically more vulnerable to hostile analysis than the overall aggregate, not less. Yet it is undisputed that no such vulnerability has materialized.
To evade these facts, defendant advances an expansive version of the doctrine of judicial deference that would oblige the court to accept its assertions. Defendant's argument exceeds the parameters of law and precedent and would tend to eviscerate the judicial function. With due respect for the national security expertise of the Director of Central Intelligence, he is not immune to error. The deference to which he is properly entitled is not absolute. Nor is the court compelled to ratify defendant's factual errors and omissions or logical missteps.
The factual issues presented by this case are well within the court's competence and authority to rule. For reasons elaborated below, the court should grant plaintiff's motion for summary judgment.
The Boundaries of Judicial Review and Judicial Deference
The Freedom of Information Act directs that in the case of contested withholding of agency records, "the court shall determine the matter de novo." 5 U.S.C. §552(a)(4)(B).
Congress anticipated that agencies would, on occasion, improperly refuse to disclose requested information. If that were not so, there would be no need for de novo review. If agency determinations were always correct, or if they were correct by definition, there would be no need for any review at all.
At the same time, however, agency affidavits justifying withholding are to be accorded "substantial weight." E.g., McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983). Further, "It is... well-established that the judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive purview." Center for National Security Studies, et al, v. U.S. Department of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003).
But "some measure of deference" does not mean absolute deference or uncritical acceptance. "[D]eference is not equivalent to acquiescence." Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998).
Even in cases involving national security claims, the deference that is due to agency affidavits may be constrained or negated by contrary evidence in the record or by evidence of agency bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (1981). Furthermore, agency statements must be "plausible." Halperin v. Central Intelligence Agency, 629 F.2d 144, 149 (1980). In no case is there is any reason to suppose that the Court must defer to agency affidavits that are factually or logically defective.
It is clear that in a clash of opinions between a responsible agency head, such as the Director of Central Intelligence, and a private individual, such as myself, it would be appropriate in the absence of other information to defer to the opinion of the agency head. That is presumably why defendant characterizes this proceeding as an attempt by the plaintiff "to substitute [his] judgment and opinions ... for the judgment of DCI Tenet about the proper classification status of the FY 02 budget." Def.'s Consolidated Reply, July 11, 2003, at p. 2.
But that is a mischaracterization. Rather than seeking to substitute or impose my views, what I seek is the de novo judicial review mandated by the Freedom of Information Act, in light of the facts presented in my motion for summary judgment. Those facts are, with one exception, uncontroverted by defendant.
I. Prior Budget Disclosures Provide a Factual Framework for De Novo Review
If the aggregate intelligence budget total had never before been disclosed, the court would then be faced with purely speculative assertions on both sides as to the consequences of disclosure. But the budget total has previously been disclosed. As a result, any suggestion that the aggregate budget is exempt from disclosure because it necessarily implies damage to national security or compromise of intelligence sources and methods has now been permanently dispelled.
Defendant contends that "plaintiff is essentially arguing waiver." Defendant's Consolidated Reply, at p. 8. That is not correct. What I am arguing is that where there had previously been only speculation, authoritative or otherwise, there is now a pertinent factual record. Where the Court would have been faced by a mere clash of opinions, and would have had little option but to defer to the agency position, as it has in previous cases, there is now a factual framework of past disclosures within which to exercise judgment.
Those past budget intelligence budget disclosures, in 1997 and 1998, are not identical with the requested 2002 information (though they are equally specific), but I have shown that they materially encompass the circumstances of the present request.
In particular, as noted in my motion, past disclosures have occurred in two consecutive years, and during or shortly after the then-current fiscal year. By contrast, the present request pertains to a single, isolated aggregate figure that is no longer current. These facts, which defendant does not dispute, support the conclusion that the requested figure falls outside the scope of FOIA exemptions (1) or (3), as defined by prior practice, and must be disclosed.
II. Can the Intelligence Budget be "Reverse Engineered"?
The only proposed material fact that defendant disputes in accordance with L.C.R. 7.1(h) and 56.1 is plaintiff's assertion, relying upon the declaration of John Pike, that it is not possible to "reverse engineer" the aggregate budget total so as to derive information about a particular intelligence program. Defendant's Statement of Genuine Issues, July 11, 2002, at page 2, fn. 1.
Defendant responds with a citation to the unclassified Tenet Declaration, ¶43. But the cited Tenet passage does not state that it is possible to derive information about component intelligence programs from the total figure. It says only that repeated disclosures of the total could eventually make it possible to identify where in the appropriations acts intelligence funds are hidden. This is a different point that is controverted by the Pike Declaration, ¶8.
The proposed material fact regarding "reverse engineering" stands undisputed.
Defendant further argues that DCI Tenet is "entitled to great deference" on this point, and that "Mr. Pike's declaration is entitled to no deference." I suggest to the contrary that on this particular matter, the reverse would be more sensible, for the following reasons.
Mr. Pike was introduced into this proceeding by the defendant, not the plaintiff. The Director of Central Intelligence reproduced his work at considerable length in his sworn declaration (albeit without attribution or proper citation) and said that it demonstrated the kind of conclusions that a "sophisticated analyst" could derive with available information. Tenet Decl., ¶ 23, n. 2. Further, Mr. Pike's work "serves... as an example of the kind of detailed budget analysis that foreign government intelligence services are also able to perform (...)." Defendant's Mem. of Points and Authorities in Support of Def.'s Mot. For Sum. Jud., at page 15, n.6.
If one really wanted to know whether it would be possible for a hostile analyst to "reverse engineer" the intelligence budget, then I submit that one would turn precisely to someone like Mr. Pike -- that is, someone who is certified by the DCI as capable of "sophisticated analysis" and who has thorough knowledge of all relevant public domain information, but no unauthorized access to classified information. I suggest that it is Mr. Pike's lack of access to classified information that makes his testimony compelling on the specific question of whether a hostile analyst could "reverse engineer" the aggregate budget figure so as to deduce sensitive information about its component parts. If a determined "sophisticated analyst" cannot accomplish the task under these circumstances, it is doubtful that any hostile analyst could.
III. Defendant's Position is Logically Refuted by DOE Intelligence Budget Publication
Defendant does not dispute the fact that Department of Energy (DOE) intelligence programs form part of the U.S. intelligence community; nor that the DOE intelligence budget includes classified intelligence programs; nor that the DOE aggregate intelligence budget figure is openly published each year; nor that there has been no finding of damage to national security or compromise of intelligence sources and methods as a result.
I argued that this constellation of facts, which corresponds in microcosm to the matter at issue in this case, and contrasts with it, is a standing refutation of the defendant's position.
Defendant responds that the DOE practice is "incomparable" to the overall intelligence budget because the DOE budget total is less than one percent of the overall budget total. This is a non sequitur. Absolute budget size is not a relevant factor in determining the potential vulnerability of the component budget information to hostile analysis.
What is relevant, according to defendant's "jigsaw puzzle" metaphor, is the difficulty of deducing sensitive information about component programs from the aggregate figure. And because the DOE intelligence budget includes a comparatively small number of programs, it is hypothetically more vulnerable to hostile analysis than the vastly larger and more complex overall budget, not less. Siebert Decl., ¶9.
The undisputed fact that no damage to national security and no compromise of intelligence sources and methods has resulted from routine annual disclosure of the DOE aggregate intelligence budget figure constitutes a fatal logical flaw in defendant's argument.
IV. In Opposition to Ex Parte, In Camera Review of the 1999 Classified Affidavit
Defendant offers to provide the Court a copy of the DCI's classified affidavit from a previous proceeding concerning declassification of the FY 1999 aggregate intelligence budget for the Court's ex parte, in camera review.
I oppose defendant's latest offer for the same reasons that I oppose the ex parte, in camera review of the proffered classified declaration concerning the FY 2002 aggregate budget figure: It offends the principles of justice, and is likely to mislead the Court in a way that is immune to correction through an adversarial proceeding.
Defendant's unclassified papers are sufficiently full of errors, material omissions and misrepresentations that one must anticipate a skewed presentation of the facts in any classified declaration that is presented. A few examples:
By Congressional and Executive design, the entire intelligence appropriations process is structured to ensure the secrecy of intelligence-related expenditures. [Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment, April 4, 2003, at page 2 (emphasis added, citation and footnote omitted).]As I have shown in connection with the Department of Energy intelligence appropriations process, this statement is not true. Another example:
[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. [Tenet Decl., ¶16, citing his October 1997 statement.]As I have shown, this statement was not true when it was originally made in 1997, and it is not true today.1 One more example:
DCI Tenet has misunderstood, and therefore misrepresented to the Court, a recent Congressional statement which he invoked in support of his position:
The Congressional Joint Inquiry that examined the Intelligence Community's performance in relation to the September 11th attacks included in its Final Report a recommendation that the President should submit counterterrorism budget recommendations with greater emphasis on long term investments. Significantly, this was followed by the recommendation that "in making such budget recommendations, the President should provide for the consideration of a separate classified Intelligence Community budget" (emphasis added). Recommendations of the Final Report of the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence Joint Inquiry into the Terrorist Attacks of September 11, 2001, p. 11 (Dec. 10, 2002). [Tenet Decl., ¶15, fn. 1 (emphasis added by the DCI).]This reflects a remarkable misunderstanding: The key word in the cited congressional recommendation is not "classified"-- it is "separate." If a separate Intelligence Community budget were established, the practical consequence would be that the total amount of spending would be disclosed each and every year (even though the particular contents of the budget would remain "classified"). That is because if most intelligence spending were no longer dispersed and hidden in non-intelligence accounts, it would no longer be possible to conceal its total magnitude. Thus, this passage would not support defendant's argument.
Although the congressional text invites misunderstanding, I think my reading is confirmed by Senator Bob Graham, who served as co-chair of the Joint Inquiry that made the recommendation. In related testimony before the National Commission on Terrorist Attacks Upon the United States along with the other Joint Inquiry co-chairs, Senator Graham said:
I believe that, just as has occurred with the Department of Homeland Security, that the intelligence agencies ought to be lifted from the Defense budget and given their own budget. Then at least the public will know what the bottom line for intelligence was and they can assess: "That seems excessive or inadequate." Right now you can't even have that debate because it's buried inside the big Defense Department budget.2My point here is not the merit of the Joint Inquiry recommendation, but that DCI Tenet's representation of even such a public record is unreliable, disputed and probably wrong.3 These attributes would only be aggravated in an ex parte setting.
Finally, I suggest that defendants' papers from the 1999 proceeding are tainted by the fact that they led the Court to include misleading, incomplete information in its final ruling in that case. Specifically, the Court declared categorically: "Appropriations for the CIA and other agencies in the intelligence community are hidden in the various appropriations acts." Aftergood v. Central Intelligence Agency, Civ. No. 98-2107 (TFH), slip op. (D.D.C. Nov. 15, 1999), Government Exhibit A, at page 8 (emphasis added). We now know that this conclusion, which was derived from defendants' pleadings, is misleading and materially incomplete: Appropriations for Department of Energy intelligence programs, which make up one of the fourteen components of the U.S. intelligence community, 50 U.S. Code §401(a)(4)(H), are not hidden but are openly and routinely published in aggregate form each year.
For this additional reason, the Court should turn away the classified 1999 declaration.
V. The New Norm of Intelligence Budget Disclosure
Since my May 5 motion for summary judgment was filed, two major U.S. allies have published budget information concerning their intelligence services. I believe that these actions are instructive in the present context, particularly because the newly published information is more detailed, extensive and current than what is at issue in this case.4
On June 5, the Canadian Security Intelligence Service issued its 2002 annual report displaying annual agency budget totals over the past decade, and projecting annual budgets several years into the future, further broken down into salaries, operating costs and construction costs. The report notes, inter alia, that "Projected expenditures for the 2002-2003 fiscal year are $256 million, an increase of 30% from just two years ago."5
On or about June 5, the United Kingdom Parliament Intelligence and Security Committee published its Annual Report for 2002-2003, reporting the combined intelligence expenditures ("outturns") for 2001-2 for the three major UK intelligence and security agencies -- Secret Intelligence Service (MI6), Security Service (MI5), and Government Communications Headquarters (GCHQ) -- as well as estimated or projected aggregate expenditures for the following four years.6
To cite one more example, the Dutch national intelligence service known as the Algemene Inlichtingen en Veiligheidsdienst (AIVD, or General Intelligence and Security Service) recently published its 2002 budget figures broken down into personnel expenditures, material expenditures, and secret expenditures.7
I naturally do not mean to suggest the United States Government is obliged to comply with the laws or practices of foreign governments.
But I do suggest that collectively these disclosures represent a new norm of intelligence budget accountability that may warrant the Court's consideration.8 These three governments, which share many of the current security concerns of the United States, are presumptively no less committed to their own national security than is our government. They have demonstrated that security is compatible with disclosure of the aggregate intelligence budget, and more.
I would only add that in my personal opinion, which is admittedly entitled to no special deference, it is a disgrace that the U.S. Government, which is subject to a Constitutional "Statement and Account" clause requiring periodic disclosure of all government expenditures (U.S. Const., Art. 1, Sect. 9, Cl. 7), offers the public less budget accountability regarding intelligence than do these foreign countries.
For the foregoing reasons, as well as those set forth in my initial motion and supporting declarations, I respectfully request that the Court enter summary judgment for the plaintiff.
Dated: July 25, 2003.
Plaintiff pro se
1. Defendant says I have taken such statements out of context, and notes correctly that DCI Tenet himself described the disclosure (by Congress) of one supplemental budget figure and stated that "most," as opposed to "all," specific budget numbers are protected. My point remains that the DCI has repeatedly used language in an imprecise or incorrect manner that is likely to mislead, particularly in an ex parte setting.
2. Testimony of Sen. Bob Graham, Intelligence Oversight and the Joint Inquiry, Hearing of the National Commission on Terrorist Attacks Upon the United States, May 22, 2003, online at http://www.9-11commission.gov/archive/hearing2/9-11Commission_Hearing_2003-05-22.pdf at pp. 53-54.
3. I would like to add that it would be neither surprising nor shameful if the DCI made an error of this sort. Everyone from Presidents of the United States to FOIA plaintiffs makes errors. What is essential is that there be a robust error correction mechanism in place.
4. Because most of this information is new, I was not able to include it in my May 5 motion. Should the defendant wish to respond to it, I would have no objection and would forego further reply. I have personally reviewed the official documents cited herein and I certify under penalty of perjury that I have accurately described, quoted and referenced them.
5. Canadian Security Intelligence Service, A2002 Public Report,@ Part VII, Figure 1, June 5, 2003; published at http://www.csis-scrs.gc.ca/eng/publicrp/pub2002_e.html.
6. Intelligence and Security Committee, UK, Annual Report 2002-2003, presented to the Parliament by the Prime Minister by Command of Her Majesty, June 2003, at page 8, ¶16; published at http://www.cabinet-office.gov.uk/reports/intelligence/pdf/annualir0203.pdf.
7. Algemene Inlichtingen en Veiligheidsdienst, "Jaarverslag 2002" (in Dutch), published April 2003, at page 113: http://www.aivd.nl/contents/pages/00018493/JV2002is.pdf
8. I note that the U.S. Supreme Court has reportedly taken a "newfound interest in invoking the rulings and views of foreign courts and international authorities in its own jurisprudence," according to a recent news story:
"In the two decisions on domestic hot-button issues last month -- Lawrence v. Texas, on gay rights, and Grutter v. Bollinger, on affirmative action -- some of the justices surprised many scholars by looking beyond U.S. borders for precedential support."
"Justice Kennedy, writing for the majority in Lawrence, cited a 1957 report to the British Parliament and a 1981 ruling of the European Court of Human Rights to make the point that opposition to gay rights was neither long-standing nor universal. In the first sentence of her concurring opinion in Grutter, Justice Ginsburg invoked an international pact on combating discrimination as proof of an 'international understanding' that affirmative action should not last forever."
From Tony Mauro, "Supreme Court Opening Up to World Opinion," Legal Times, July 7, 2003, at page 1.