|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
|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.”
||FACT: Section 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
|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
|DIA: “Additionally, it would exempt sensitive
information that is not classified (e.g., information from foreign government
||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.