DIA Versus the Facts:
What DIA Told the U.S. Congress to Get a Freedom of Information Act Exemption for DIA "Operational Files"

The DIA "background paper" reproduced below was provided by DIA to the Congress.  The paper is the only available explanation of section 1045 of the defense authorization bill which was approved by the Senate on July 13.  There were no public hearings on this section, no debate, no testimony, and no public record other than these five paragraphs to justify or explain section 1045.  The section extends to the DIA the language of the CIA Information Act of 1984, which exempted certain files in the CIA’s directorate of operations (90% of DO files, as well as certain security and science and technology files) from the Freedom of Information Act, on the basis of an extensive public record, multiple hearings, and specificity as to exactly which files would be covered.


DIA Versus the Facts: A Point-by-Point Rebuttal (July 18, 2000)

DIA “With the establishment of the Defense HUMINT Service, DIA began to accumulate operational files that invariably contained sensitive information on sources and methods.” FACT:  DIA is using the establishment of the DHS in 1995 to add some urgency to its request for a FOIA exemption that it has sought ever since the CIA got one in 1984.  However, DIA actually began to accumulate such files from its very beginning in 1961, and the various military HUMINT units accumulated such files even earlier.
DIA“While these files are always exempt from release, the Freedom of Information Act requires that they be searched and reviewed consuming many man-hours in fruitless effort.” FACT:  This sentence is false.  These files are almost never exempt from release.  The DIA and the various military HUMINT units have declassified and released thousands of HUMINT reports over the years under FOIA and other declassification processes.  Usually, the identifier of the source is blacked out, but the substance of the report is released.  This is hardly a “fruitless effort,” since these reports have provided invaluable information on human rights abuses by foreign militaries such as in Chile and Guatemala, and have contributed to U.S. policy encouraging greater military transparency and rule of law abroad. More than two dozen of these declassified HUMINT reports are posted in this briefing book.
DIA“The proposed legislation, modeled on the CIA Information Act of 1984, would give DIA the same exemption from searching its operational files as that held by CIA and NIMA.” FACTSection 1045 is more than modeled, it is an exact duplication of the CIA Act, but the Defense HUMINT Service to which section 1045 applies is not at all analogous to the CIA directorate of operations or to the National Imagery and Mapping Agency.  Defense attachés and the military intelligence unit personnel who make up the bulk of the DHS staff operate openly and officially overseas, not covertly like the CIA.  The largest component of the DHS, the Army’s HUMINT activity, actually produces the vast majority of its reports from open sources, not clandestine ones.  In FY 1992, for example, the declassified Army INSCOM history shows that 87% of HUMINT reports were from open sources, and 13% clandestine.  (INSCOM reporting based on human sources is now part of the Defense HUMINT Service.)
DIA“It also includes provision for a decennial review for releasibility of exempt files.” FACT:  The decennial review process built into the CIA Act of 1984 does not work.  The only such review performed to date by CIA, described to Archive staff and other scholars and public interest groups in a briefing on 29 August 1994, resulted in removing from exemption only a handful of unutilized file categories, the addition of three new file categories to be exempted, and no net declassification despite ten years passage of time and the end of the Cold War.  CIA had argued in 1984 that exempting operational files, for which there was an average two-and-a-half year wait for search and review, would allow them to speed up their other FOIA processing.  In fact, CIA’s average FOIA response time today is greater than two-and-a-half years for any documents that have not been previously released (the FOIA law requires 20 working days).  CIA delays on FOIA appeals recently reached 15 years to answer one filed in 1985!
DIA “Additionally, it would exempt sensitive information that is not classified (e.g., information from foreign government sources).” FACT:  Foreign governments should not have a presumption of secrecy that we do not allow to our own government.  Foreign government information that is not classified is routinely released by the State Department, the Trade Representative, and other agencies.  If release of the information would damage U.S. national security, the information should be classified, not subject to its own exemption that will increase administrative complexity and cost in the security system.
DIA“The exemption would not include finished intelligence products or routine reports from Defense attaches (although most of these would also be classified and therefore exempt from release but not from review).” FACT:  Of course finished intelligence could not be exempt, since it is disseminated to consumers throughout the government.  But how exactly will DIA define “routine reports”?  If the routine report mentions a HUMINT source, will it be deemed part of "operational files"?  The net effect of the section 1045 language is to create a black hole into which everything from defense attaches except administrivia will fall, thus radically diminishing the public record released under FOIA, and dramatically reducing military transparency here and abroad.
DIA“Copies of the proposals together with section analyses are attached.  Passage of this legislation would result in better protection of intelligence sources and methods, more efficient reporting, as well as time and cost savings in processing FOIA requests.” FACT:  DIA has shown no evidence that current protection is inadequate for sources and methods, and no evidence that the existing national security exemptions to FOIA are not working.  Yes, this provision would save time and money, but not by cutting out “fruitless” searches, rather, by cutting out the actual releases that DIA currently does from exactly these operational files.  At least CIA in 1984 could argue that its operational files exemption would not diminish the public record; here, it is incontrovertible that DIA’s exemption would radically reduce what is released under FOIA.
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