Monday, August 31, 1998
Steven Aftergood (202)675-1012
Kate Martin (202)994-7060
The Federation of American Scientists (FAS) filed suit Monday to compel the Central Intelligence Agency to disclose the amount of the total budget request for intelligence for the coming fiscal year (FY 99).
Last year, an FAS lawsuit led to the disclosure of the total intelligence appropriation for FY 1997 ($26.6 billion) and for FY 1998 ($26.7 billion).
The bipartisan Commission on the Roles and Capabilities of the US Intelligence Community (the "Aspin-Brown Commission") unanimously recommended in 1996 that both the total intelligence budget and the amount requested for the following year should be published annually. Most of the Commission's recommendations were ignored.
"There is no valid reason to keep this information classified," said Steven Aftergood, director of the FAS Project on Government Secrecy and the plaintiff in the lawsuit. "Given the resistance to declassification at the CIA and in Congress, a lawsuit is the only way for the public to gain greater accountability."
The lawsuit, brought under the Freedom of Information Act, was filed in U.S. District Court for the District of Columbia. A copy of the complaint follows below. FAS is represented in the present lawsuit by Kate Martin of the Center for National Security Studies, a non- profit civil liberties advocacy organization (202-994-7060).
The Federation of American Scientists, founded by Manhattan Project scientists after World War II, is a non-profit policy research and advocacy organization concerned with national security policy. The FAS Project on Government Secrecy seeks to reduce unnecessary government secrecy in national security affairs.
___________________________________ STEVEN AFTERGOOD ) on behalf of the ) FEDERATION OF AMERICAN SCIENTISTS ) 307 Massachusetts Avenue, NE ) Washington, DC 20002 ) Plaintiff, ) ) v. ) ) CENTRAL INTELLIGENCE AGENCY ) Washington, DC 20505 ) Defendant. ) ___________________________________)
1. Plaintiff Steven Aftergood, on behalf of the Federation of American Scientists, seeks disclosure of the amount of the total budget request for intelligence for fiscal year 1999 under the Freedom of Information Act. The CIA has refused to release the amount despite its admission that there is an urgent public need for the information and despite the fact that the President has determined that the annual total budget appropriation for intelligence may be released without harming the national security. The CIA's refusal to make a decision is itself a violation of the law. Because this information does not meet the standards for classification, the CIA's refusal to release it is an additional violation of the law.
2. Information is exempt from disclosure under (b)(1) of the Freedom of Information Act only if it is properly classified pursuant to executive order. President Clinton's Executive Order 12958 states that information may be classified only if its disclosure "reasonably could be expected to result in damage to the national security," sec. 1.2(a)(4). The Executive Order also provides that "if there is significant doubt about the need to classify information, it shall not be classified," sec. 1.2(b).
3. As explained by then Director of Central Intelligence, John Deutch, President Clinton "is persuaded that disclosure of the annual amount appropriated for intelligence purposes will inform the public and will not, in itself, harm intelligence activities."
4. Despite this admission by the Director himself that there is no basis to classify this information under the Executive Order and thus no basis to withhold it under the Freedom of Information Act, the CIA in 1997 refused to release the total amount appropriated for fiscal year 1997, until plaintiff Aftergood filed suit.
5. In March, 1998, the CIA disclosed the total amount appropriated for fiscal year 1998 only after plaintiff threatened a second lawsuit.
6. The President's statement itself built "on the recommendations made in the Brown Commission Report on the Roles and Capabilities of the Intelligence Community." That group of experts appointed by the President and the Congress to examine this issue found that the requested information does not meet the standards for classification and unanimously recommended that it should be disclosed.
7. The Commission on the Roles and Capabilities of the United States Intelligence Community ("Commission") was chartered by statute in 1994 to examine "the efficacy and appropriateness" of U.S. intelligence policies (Public Law 103-359). It consisted of nine bipartisan members appointed by the President and eight bipartisan members appointed by Congress. The Commission was tasked by law, inter alia, to address "to what extent, if any, should the budget for United States intelligence activities be publicly disclosed."
8. In its final report, the bipartisan Commission unanimously recommended that "at the beginning of each congressional budget cycle, the President or a designee disclose the total amount of money appropriated for intelligence activities for the current fiscal year (to include NFIP, JMIP, and TIARA) and the total amount being requested for the next fiscal year." (Preparing for the 21st Century: An Appraisal of U.S. Intelligence, recommendation 14-2, page 142, emphasis added.)
9. To date, however, the CIA has failed to disclose "the total amount being requested" for fiscal year 1999. The CIA's refusal to release this information violates the Executive Order on classification and the Freedom of Information Act.
10. This Court has jurisdiction over this action pursuant to the Freedom of Information Act, 5 U.S.C. sec. 552(a)(4)(B), the Administrative Procedure Act, 5 U.S.C. sec 701 et seq., and 28 U.S.C. sec. 1331 and 1361.
11. Venue lies in this district under 5 U.S.C. sec. 552(a)(4)(B).
13. Defendant Central Intelligence Agency is an agency of the United States government which has possession of the information requested by plaintiff under the Freedom of Information Act.
15. By his letter of 26 January 1998, plaintiff Aftergood further requested "expedited processing" of the request, pursuant to 5 U.S.C. 552a(6)(E)(i)(I) citing the "compelling need" to inform the public concerning the amount of the pending budget request.
16. By letter dated February 18, 1998, the CIA granted the request for expedited processing.
17. The Freedom of Information Act requires the agency to determine within 20 working days whether it will comply with requests for information and requires that an "agency shall process as soon as practicable any request for records to which the agency has granted expedited processing." 5 U.S.C. sec. 552a(6)(A) and (E)(iii).
18. Despite the fact that the requested information consists of one number and that the CIA recognized the urgent public need to be informed of this information, and agreed to expedited processing, it did not provide the requested information.
19. By letter dated March 19, 1998, plaintiff appealed the Agency's failure to provide the requested information.
20. By letter dated April 10,1998, the CIA acknowledged receipt of the plaintiff's appeal. Plaintiff has received no further response to his appeal.
22. Defendant CIA's failure to release the requested information violates the Freedom of Information Act, 5 U.S.C. sec. 552.
b. declare that the defendant's refusal to produce the information requested by Mr. Aftergood is unlawful;
c. order defendant to release to plaintiff documents that indicate the total budget request for intelligence for fiscal year 1999;
d. award plaintiff his costs and attorneys fees in this action; and
e. grant such other and further relief as the Court may deem just and proper.
D.C. Bar No. 949115
Center for National Security Studies
2130 H St reet , NW, Suite 701
Washington, DC 20037
(202) 994 7060
Counsel for plaintiff
August 31, 1998