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FAS Note: In this April 6, 1999 Declaration, DCI George J. Tenet argues against disclosure of both the total intelligence budget and the budget request. This Declaration amends and supersedes his December 1998 Declaration which only addressed the budget request. Among other changes (e.g., the DCI now refers to "intelligence methods" instead of "intelligence sources and methods"), paragraphs 16, 19, and 21 below are new.

See also an FAS Rebuttal.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

         
___________________________________
STEVEN AFTERGOOD                   )
on behalf of the                   )
FEDERATION OF AMERICAN SCIENTISTS  )
307 Massachusetts Avenue, NE       )
Washington, DC 20002               )
                                   )
     Plaintiff,     		   )
                                   )
v.                                 )                   Civ. No. 98-2107 (TFH)
                                   )
CENTRAL INTELLIGENCE AGENCY        )
Washington, DC 20505               )
                                   )
     Defendant.                    )
___________________________________)

DECLARATION OF GEORGE J. TENET

INTRODUCTION

I, GEORGE J. TENET, hereby declare:

1. I am the Director of Central Intelligence (DCI). I was appointed DCI on 11 July 1997. As DCI, I serve as head of the United States intelligence community, act as the principal adviser to the President for intelligence matters related to the national security, and serve as head of the Central Intelligence Agency (CIA).

2. Through the exercise of my official duties, I am generally familiar with plaintiff's civil action. I make the following statements based upon my personal knowledge, upon information made available to me in my official capacity, and upon the advice and counsel of the CIA's Office of General Counsel.

3. I understand that plaintiff has submitted Freedom of Information Act (FOIA) requests for "a copy of documents that indicate the amount of the total budget request for intelligence and intelligence-related activities for fiscal year 1999" and "a copy of documents that indicate the total budget appropriation for intelligence and intelligence-related activities for fiscal year 1999, updated to reflect the recent additional appropriation of 'emergency supplemental' funding for intelligence." I also understand that plaintiff alleges that the CIA has improperly withheld such documents. I shall refer to the requested information as the "budget request" and "the total appropriation," respectively.

4. As head of the intelligence community, my responsibilities include developing and presenting to the President an annual budget request for the National Foreign Intelligence Program (NFIP), and participating in the development by the Secretary of Defense of the annual budget requests for the Joint Military Intelligence Program (JMIP) and Tactical Intelligence and Related Activities (TIARA). The budgets for the NFIP, JMIP, and TIARA jointly comprise the budget of the United States for intelligence and intelligence-related activities.

5. The CIA has withheld the budget request and the total appropriation on the basis of FOIA Exemption (b)(1) because they are currently and properly classified under Executive Order 12958, and on the basis of FOIA Exemption (b)(3) because they are exempted from disclosure by the National Security Act of 1947 and the Central Intelligence Agency Act of 1949. The purpose of this declaration, and the accompanying classified declaration, is to describe my bases for determining that disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security and would tend to reveal intelligence methods.

6. I previously executed declarations in this case that were filed with the CIA's motion for summary judgment on 11 December 1998. Those two declarations described my bases for withholding the budget request only. Since the CIA filed its motion for summary judgment, plaintiff has filed an amended complaint seeking release of the total appropriation also. For the Court's convenience, the justifications contained in my earlier declarations are repeated and supplemented in this declaration and the accompanying classified declaration and describe my bases for withholding both the budget request and the total appropriation for fiscal year 1999.

PRIOR RELEASES

7. In October 1997, I publicly disclosed that the aggregate amount appropriated for intelligence and intelligence-related activities for fiscal year 1997 was $26.6 billion. At the time of this disclosure, I issued a public statement that included the following two points:

8. In March 1998, I publicly disclosed that the aggregate amount appropriated for intelligence and intelligence-related activities for fiscal year 1998 was $26.7 billion. I did so only after evaluating whether the 1998 appropriation, when compared with the 1997 appropriation, could cause damage to the national security by showing trends over time, or otherwise tend to reveal intelligence sources and methods. Because the 1998 appropriation represented approximately a $0.1 billion increase-- or less than a 0.4 percent change-- over the 1997 appropriation, and because published reports did not contain information that, if coupled with the appropriation, could allow the correlation of specific spending figures with particular intelligence programs, I concluded that release of the 1998 appropriation could not reasonably be expected to cause damage to the national security, and so I released the 1998 appropriation.

9. Since the enactment of the intelligence appropriation for fiscal year 1998, the budget process has produced: 1) the fiscal year 1998 supplemental appropriation; 2) the Administration's budget request for fiscal year 1999 (a subject of this litigation); 3) the fiscal year 1999 regular appropriation (a subject of this litigation); and 4) the fiscal year 1999 emergency supplemental appropriation (a subject of this litigation). Information about each of these figures-- some of it accurate, some not-- has been reported in the media. In evaluating whether to release the Administration's budget request or total appropriation for fiscal year 1999, I cannot review these possible releases in isolation. Instead, I have to consider whether release of the requested information could add to the mosaic of other public and clandestine information acquired by our adversaries about the intelligence budget in a way that could reasonably be expected to damage the national security. If release of the requested information adds a piece to the intelligence jigsaw puzzle-- even if it does not complete the picture-- such that the picture is more identifiable, then damage to the national security could reasonably be expected. After conducting such a review, I have determined that release of the Administration's intelligence budget request or total appropriation for fiscal year 1999 reasonably could be expected to cause damage to the national security, or otherwise tend to reveal intelligence methods. In the paragraphs that follow, I will describe the information I reviewed and how I reached this conclusion. I am unable to describe all of the information I reviewed without disclosing classified information. Additional information in support of my determination is included in my classified declaration.

10. At the creation of the modern national security establishment in 1947, national policymakers had to address a paradox of intelligence appropriations: the more they publicly disclosed about the amount of appropriations, the less they could publicly debate about the object of such appropriations without causing damage to the national security. They struck the balance in favor of withholding the amount of appropriations. For over fifty years, the Congress has acted in executive session when approving intelligence appropriations to prevent the identification of trends in intelligence spending and any correlation between specific spending figures with particular intelligence programs. Now is an especially critical and turbulent period for the intelligence budget, and the continued secrecy of the fiscal year 1999 budget request and total appropriation is necessary for the protection of vulnerable intelligence capabilities.

CLASSIFIED INFORMATION
FOIA EXEMPTION (b)(1)

11. The authority to classify information is derived from a succession of Executive orders, the most recent of which is Executive Order 12958, "Classified National Security Information." Section 1.1(c) of the Order defines "classified information" as "information that has been determined pursuant to this order or any predecessor order to require protection against unauthorized disclosure." The CIA has withheld the budget request and the total appropriation as classified information under the criteria established in Executive Order 12958.

Classification Authority

12. Information may be originally classified under the Order only if it: 1) is owned by, produced by or for, or is under the control of the United States Government; 2) falls within one or more of the categories of information set forth in section 1.5 of the Order; and 3) is classified by an original classification authority who determines that its unauthorized disclosure reasonably could be expected to result in damage to the national security that the original classification authority can identify or describe.1 The classification of the budget request and the total appropriation meet these requirements.

13. The Administration's budget request and the total appropriation are information clearly owned, produced by, and under the control of the United States Government. Additionally, the budget request and the total appropriation fall within the category of information listed at section 1.5(c) of the Order: "intelligence activities (including special activities), intelligence sources or methods, or cryptology."

14. Finally, I have made the determination required under the Order to classify the budget request and the total appropriation. By Presidential Order of 13 October 1995, "National Security Information," 3 C.F.R. 513 (1996), reprinted in 50 U.S.C. sec. 435 note (Supp. I 1995), and pursuant to section 1.4(a)(2) of Executive Order 12958, the President designated me as an official authorized to exercise original TOP SECRET classification authority. I have determined that the unauthorized disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security. Consequently, I have classified the budget request and the total appropriation at the CONFIDENTIAL level. In the paragraphs below, I will identify and describe the foreseeable damage to national security that reasonably could be expected to result from disclosure of the budget request or the total appropriation.

Damage to National Security

15. Disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security in several ways. First, disclosure of the budget request reasonably could be expected to provide foreign governments with the United States' own assessment of its intelligence capabilities and weaknesses. The difference between the appropriation for one year and the Administration's budget request for the next provides a measure of the Administration's unique, critical assessment of its own intelligence programs. A requested budget decrease reflects a decision that existing intelligence programs are more than adequate to meet the national security needs of the United States. A requested budget increase reflects a decision that existing intelligence programs are insufficient to meet our national security needs. A budget request with no change in spending reflects a decision that existing programs are just adequate to meet our needs.

16. Similar insights can be gained by analyzing the difference between the total appropriation by Congress for one year and the total appropriation for the next year. The difference between the appropriation for one year and the appropriation for the next year provides a measure of the Congress' assessment of the nation's intelligence programs. Not only does an increased, decreased, or unchanged appropriation reflects [sic] a congressional determination that existing intelligence programs are less than adequate, more than adequate, or just adequate, respectively, to meet the national security needs of the United States, but an actual figure indicates the degree of change.

17. Disclosure of the budget request or the total appropriation would provide foreign governments with the United States' own overall assessment of its intelligence weaknesses and priorities and assist them in redirecting their own resources to frustrate the United States' intelligence collection efforts, with the resulting damage to our national security. Because I have determined it to be in our national security interest to deny foreign governments information that would assist them in assessing the strength of the United States intelligence capabilities, I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security. I am unable to elaborate further on the bases for my determination without disclosing classified information. Additional information in support of my determination is included in my classified declaration.

18. Second, disclosure of the budget request or the total appropriation reasonably could be expected to assist foreign governments in correlating specific spending figures with particular intelligence programs. Foreign governments are keenly interested in the United States' intelligence collection priorities. Nowhere are those priorities better reflected than in the level of spending on particular intelligence activities. That is why foreign intelligence services, to varying degrees, devote resources to learning the amount and objects of intelligence spending by other foreign governments. The CIA's own intelligence analysts conduct just such analyses of intelligence spending by foreign governments.

19. However, no intelligence service, U.S. or foreign, ever has complete information. They are always revising their intelligence estimates based on new information. Moreover, the United States does not have complete information about how much foreign intelligence services know about U.S. intelligence programs and funding. Foreign governments collect information about U.S. intelligence activities from their human intelligence sources; that is, "spies." While the United States will never know exactly how much our adversaries know about U.S. intelligence activities, we do know that all foreign intelligence services know at least as much about U.S. intelligence programs and funding as has been disclosed by the Congress or reported by the media. Therefore, congressional statements and media reporting of the fiscal year 1999 budget cycle provide the minimum knowledge that can be attributed to all foreign governments, and serve as a baseline for predictive judgments of the possible damage to national security that could reasonably be expected to result from release of the budget request or the total appropriation.

20. Budget figures provide useful benchmarks that, when combined with other public and clandestinely-acquired information, assist experienced intelligence analysts in reaching accurate estimates of the nature and extent of all sorts of foreign intelligence activities, including covert operations, scientific and technical research and development, and analytic capabilities. I expect foreign intelligence services to do no less if armed with the same information. While other sources may publish information about the amounts and objects of intelligence spending that damages the national security, I cannot add to that damage by officially releasing information, such as the budget request or the total appropriation, that would tend to confirm or deny these public accounts. Such intelligence would permit foreign governments to learn about United States' intelligence collection priorities and redirect their own resources to frustrate the United States' intelligence collection efforts, with the resulting damage to our national security. Therefore, I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security. I am unable to elaborate further on the bases for my determination without disclosing classified information. Additional information in support of my determination is included in my classified declaration.

21. In addition, release of both the budget request and the total appropriation would permit one to calculate the exact difference between the Administration's request and Congress' appropriation. It is during the congressional debate over the Administration's budget request that many disclosures of specific intelligence programs are reported in the media. Release of the budget request and total appropriation together would assist our adversaries in correlating the added or subtracted intelligence programs with the exact amount of spending devoted to them.

22. And third, disclosure of the budget request or the total appropriation reasonably could be expected to free foreign governments' limited collection and analysis resources for other efforts targeted against the United States. No government has unlimited intelligence resources. Resources devoted to targeting the nature and extent of the United States' intelligence spending are resources that cannot be devoted to other efforts targeted against the United States. Disclosure of the budget request or the total appropriation would free those foreign resources for other intelligence collection activities directed against the United States, with the resulting damage to our national security. Therefore, I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security.

23. In summary, I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to provide foreign intelligence services with a valuable benchmark for identifying and frustrating United States' intelligence programs. For all of the above reasons, singularly and collectively, I have determined that disclosure of the budget request or the total appropriation for fiscal year 1999 reasonably could be expected to cause damage to the national security. Therefore, I have determined that the budget request and the total appropriation are currently and properly classified CONFIDENTIAL.

INTELLIGENCE METHODS
FOIA EXEMPTION (b)(3)

24. Section 103(c)(6) of the National Security Act of 1947, as amended, provides that the DCI, as head of the intelligence community, "shall protect intelligence sources and methods from unauthorized disclosure." Disclosure of the budget request or the total appropriatin would jeopardize intelligence methods because disclosure would tend to reveal how and for what purposes intelligence appropriations are secretly transferred to and expended by intelligence agencies.

25. There is no single, separate appropriation for the CIA. The appropriations for the CIA and other agencies in the intelligence community are hidden in the various annual appropriations acts. The specific locations of the intelligence appropriations in those acts are not publicly identified, both to protect the classified nature of the intelligence programs themselves and to protect the classified intelligence methods used to transfer funds to and between intelligence agencies.

26. Because there are a finite number of places where intelligence funds may be hidden in the federal budget, a skilled budget analyst could construct a hypothetical intelligence budget by aggregating suspected intelligence line items from the publicly-disclosed appropriations. Release of the budget request or the total appropriation would provide a benchmark to test and refine such a hypothesis. Repeated disclosures of either the budget request or total appropriation could provide more data with which to test and refine the hypothesis. Exhibit 1 is an example of such a hypothesis. Confirmation of the hypothetical budget could disclose the actual locations in the appropriations acts where the intelligence funds are hidden, which is the intelligence method used to transfer funds to and between intelligence agencies.

27. Sections 5(a) and 8(b) of the CIA Act of 1949 constitute the legal authorization for the secret transfer and spending of intelligence funds. Together, these two sections implement Congress' intent that intelligence appropriations and expenditures, respectively, be shielded from public view. Simply stated, the means of providing money to the CIA is itself an intelligence method. Disclosure of the budget request or the total appropriation could assist in finding the locations of secret intelligence appropriations, and thus defeat these congressionally-approved secret funding mechanisms. Therefore I have determined that disclosure of the budget request or the total appropriation would tend to reveal intelligence methods that are protected from disclosure. I am unable to elaborate further on the bases for my determination without disclosing classified information. Additional information in support of my determination is included in my classified declaration.

CONCLUSION

28. In fulfillment of my statutory responsibility as head of the United States intelligence community, as the principal adviser to the President for intelligence matters related to the national security, and as head of the CIA, to protect classified information and intelligence methods from unauthorized disclosure, I have determined for the reasons set forth above and in my classified declaration that the Administration's intelligence budget request and the total appropriation for fiscal year 1999 must be withheld because their disclosure reasonably could be expected to cause damage to the national security and would tend to reveal intelligence methods.

I hereby certify under penalty of perjury that the foregoing is true and correct.

Executed this 6th day of April, 1999.