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Inside the Pentagon's Defense Alert

Judge Dismisses Lawsuit To Force Disclosure Of Intel Budget Figures

Nov. 22, 1999 -- A federal judge has dismissed a lawsuit seeking disclosure of the fiscal year 1999 total intelligence budget.

The lawsuit, filed last year by the Federation of American Scientists against the CIA, alleged there was no compelling national security reason for denying its request for the FY-99 figure because the CIA had released the same number for FY-97 and FY-98. Also, FAS argued that because the president has said publicly that the intel budget figure could safely be released, the issue of disclosure was now moot.

However, CIA Director George Tenet argued in court filings -- one of them classified and unavailable to FAS -- that data from other sources could be combined with the defense budget figures to give adversaries too much information about U.S. intelligence activities. Specifically, he contended that comparing three years' worth of budget numbers could provide adversaries information that would be harmful to the United States.

U.S. District Court Judge Thomas Hogan ruled in Tenet's favor, stating in a Nov. 12 decision that Tenet's declarations to the court about the reasons for withholding the figures -- FAS also asked for the administration's FY-99 intel budget request -- establish that their release could "reasonably be expected to result in harm to the national security and to reveal intelligence 'sources and methods.'"

Steven Aftergood, the director of the FAS project on government secrecy and the named plaintiff in the case, said he was disappointed but undaunted about the ruling. "This door has closed, but I'm confident that another door will open, and one way or another, we will get this information," Aftergood told DefenseAlert.

The ruling, he believes, "eliminates the most basic form of accountability that we had enjoyed in the last two years. It's hard to understand why the openness of the last two years should suddenly be reversed."

Aftergood believes the intel community would be more accountable to the public if the total budget figures are available to everyone.

According to Hogan, the CIA provided enough evidence to back up its claims that the lawsuit, which sought the release of the figures via the Freedom of Information Act, should be dismissed because the agency properly followed FOIA rules.

"Obviously, DCI Tenet cannot be certain that damage to our national security would result from release of the total budget request for 1999, but the law does not require certainty or a showing of harm before allowing an agency to withhold classified information," the decision states. "Courts have recognized that an agency's articulation of the threatened harm must always be speculative to some extent, and that to require an actual showing of harm would be judicial 'overstepping.'"

Hogan also stated that contrary to Aftergood's claims, prior disclosures do not constitute "record evidence" that the budget figures should be released in FY-99 or subsequent years. On the contrary, he states, the decision to deny the FY-99 release request shows the DCI has undertaken "careful, case-by-case analysis" of each request.

Following the CIA's reasoning, as argued in oral arguments early this month, that the president's statements on intel budget figure releases were not specific to the 1999 numbers, Hogan wrote they do not constitute reason to overturn Tenet's determination.

"Plaintiff has offered this court no evidence that the president has ever addressed the impact of disclosure of the administration's budget request or the total amount appropriated for fiscal year 1999," the decision states. "The fact that the president encouraged release of similar information in earlier years is not determinative here."

According to Kate Martin, the lawyer for the Center for National Security Studies who argued the case before Hogan, his decision "puts the matter back in the hands of the president." Noting that President Clinton will soon sign the FY-00 intelligence authorization bill -- the budget number for which is the only one that is kept secret "from the American people" -- Martin said she hopes he will overrule the CIA and make the figures public.

"When the president signs that bill, it's time for him to make good on his determination and release the numbers," Martin said.

Aftergood said he may appeal the decision, and may also go directly to the administration to argue that the CIA's reasoning is "nonsensical," he said. -- Daniel G. Dupont

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