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 STATUS REPORTDefendant, the Central Intelligence Agency ("CIA" or "Agency"), respectfully submits this status report.
INTRODUCTIONThis is an action under the Freedom of Information Act ("FOIA") brought pro se by plaintiff Steven Aftergood. Pursuant to FOIA, plaintiff requested disclosure of certain classified intelligence information. His request for that information, the aggregate U.S. intelligence budget total for fiscal year 2002, was denied by defendant. Plaintiff subsequently filed suit. Defendant timely filed its answer on July 15, 2002, without having sought any enlargement. The Court subsequently entered, at defendant's suggestion, an order requiring defendant to submit a status report on October 15, 2002.
CURRENT POSTUREWe are making significant progress in preparing to move for summary judgment. Agency employees have drafted proposed classified and unclassified declarations that will support defendant's summary judgment motion and are submitting them to senior management officials for review and comment. The preparation of these declarations is a time-consuming process, involving review and coordination among a number of affected subject matter and classification experts. These ongoing reviews have been made more difficult because the CIA personnel who are and will be responding to this lawsuit include the most senior personnel in the Agency, including the Director of Central Intelligence ("DCI") himself. Their involvement is necessary because the aggregate intelligence budget number is classified, and there are major policy issues that must be resolved in deciding whether or not to disclose it. It is likely, in fact, that the DCI will provide written testimony in support of defendant's summary judgment motion.
The DCI and his senior staff are currently preoccupied with critical wartime intelligence and national security matters, sometimes requiring overseas travel. In addition to operational requirements, they are responding to a significantly increased level of presidential and congressional demands. These demands require increased testimony before and increased reporting to Congress, as well as greater support to other executive branch agencies such as the Departments of Defense and Justice. It is extremely difficult for the CIA staff personnel who are preparing the declarations for this case to gain access to the very senior-level officials who need to consider the issues raised by this lawsuit.
Moreover, when senior CIA officials are able to focus on this issue, they will give significant consideration to its resolution. In the three past years when plaintiff requested release of similar information, the Agency's decision to withhold or disclose the aggregate intelligence budget number was carefully made on a year-by-year basis. In two of those prior years the DCI decided, in his discretion, to release the aggregate budget figure. This decision has taken into account a number of circumstances, including changes to the intelligence budget and changes in the world situation. It will be no easier this time.
The parties have discussed an appropriate briefing schedule, and have concluded that it is premature to propose a briefing schedule at this time.
Defendant is working diligently to move for summary judgment. Given the uncertainties discussed above, however, it is unclear when that summary judgment motion can be prepared. We hope to be in a position to provide a meaningfu1 report by 15 November 2002. We therefore suggest that we submit another status report on or before 15 November 2002. That proposed status report would: (1) provide an estimate of the additional time, if any, necessary to complete defendant's review of this matter, and (2) propose a realistic schedule, devised after consulting with plaintiff, for briefing defendant's summary judgment motion.
We have consulted with plaintiff, and he has stated that he has no objection to proceeding in this manner.
A proposed order reflecting our suggestion is attached.
Respectfully submitted,Dated: October 15, 2002
ROSCOE C. HOWARD, JR., D.C. Bar #246470
United States Attorney
MARK E.NAGLE, D.C. Bar #416365
Assistant United States Attorney
ROBERT E. LEIDENHEIMER, JR., D.C. BAR #420959
Assistant United States Attorney
Judiciary Center Building
555 4th St., N.W., Room 10-816
Washington, D.C. 20530