Washington, D.C., July 17, 2000 – On July 13, 2000 the Senate passed a measure
in the FY 2001 Defense Authorization Act that – if approved by the
full Congress – would severely undercut the public's ability to obtain
critical human rights information gathered by U.S. defense attachés
(DATT) and other U.S. military representatives abroad. The provision
would exempt from release under the Freedom
of Information Act (FOIA) the "operational files" of the Defense Intelligence
Agency (DIA). This would include most of the documents produced by
the Defense HUMINT Service – files that have been
declassified routinely in the past and which in many cases contain crucial
information about human rights violations committed by foreign military
and intelligence units and other important information about political
and military developments around the world.
The DIA and the military services maintain a large
number of military attachés and a much smaller network of clandestine
case officers to satisfy foreign intelligence requirements. The Defense
HUMINT Service became operational October 1, 1995, to consolidate the human
intelligence (HUMINT) capabilities of the DIA, Army, Navy, and Air Force.
The proposed 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 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. Unlike the CIA Act, however,
there were no public hearings on the proposed DIA exemption, no debate,
no testimony, and no public record other than a misleading five-paragraph
"background paper" from the DIA. And while the CIA had argued in
1984 that the operational exemption would actually produce a net increase
in released material, it is clear that the application of such an exemption
to the DIA would drastically reduce the number of documents currently being
that would be Withheld under the Proposed Legislation
Excerpt of a February 1976 report from
the U.S. defense (DATT) and Air Force (AIRA) attachés in Santiago,
Reports on Human Rights Abuses in Chile and Guatemala
HUMINT Reports on
other Political and Military Issues
State Department's Electronic Reading Room
| If passed by the full Congress the legislation would
effectively shield the activities of foreign death squads, torturers and
kidnappers from public scrutiny and would greatly undermine the efforts
of official truth commissions – many of which have been aided by the declassification
of such records – to clarify responsibility for human rights violations.
Below are examples of the kinds of military HUMINT reports that would be
exempt from release if the Senate language is included in the final bill.
The first eleven documents – released through FOIA and special declassification
projects – contain important information on human rights abuses committed
by Chilean and Guatemalan security forces. The next set of documents
cover a range of political and military matters and are included to illustrate
the broad range of topics covered by defense intelligence operational reports.
These records are just a small sample of the hundreds of DIA HUMINT reports
that the Archive has obtained. There are also many more of these
kinds of DIA documents available at the
State Department's Electronic Reading Room, including dozens of additional
reports about human rights violations in Chile and Guatemala.
Reports on Human Rights Abuses in Chile and Guatemala
U.S. Defense Attaché, Santiago, "DINA, Its Operations and Power," February 6, 1974.
The reporting officer ("R.O.") relates a conversation he had
with an undisclosed source about a pending legal matter in Chile shortly
after the military coup led by Gen. Augusto Pinochet. Referring to
a matter unrelated to intelligence, the source tells the officer that it
can be accomplished as long as the Chilean National Intelligence Directorate
(DINA) approves. The source explains that there are three souces
of power in Chile: "Pinochet, God, and DINA."
Defense Attaché, Santiago, to DIA, "Activity at Suspected Chilean
Air Force Interrogation Building," February 2, 1976.
The U.S. Defense and Air Force attachés provide an eyewitness
account of the beating of detainees outside a suspected Chilean Air Force
interrogation building in Santiago. The officers report that guards
"armed with police type billy clubs" repeatedly struck prisoners "most
frequently at the rear of knee joints." Another source reports that
one of the prisoners, a small boy, was repeatedly struck by the guards,
who also banged the head of an elderly man against the wall.
Defense Attaché, Santiago, to DIA, "Disappearance of Eduardo and
Julio Budnick," August 5, 1976.
A source confirms to the U.S. Air Force attaché that
two Jewish businessmen, Eduardo and Julio Budnick, have been detained by
the Chilean government. "Based on source's position" and on information
from a separate source, the reporting officer believes that the Budnicks
are being held by Chilean intelligence.
Navy Defense Attaché, Santiago, "Covert Countersubversive Activities
in Chile," November 5, 1977. [Best Copy Available]
The U.S. Defense attaché in Santiago provides information
concerning recent covert intelligence operations carried out by Chilean
security forces. The operations, the source reports, are intended
"to deal with the threat, real or imagined, of extremist subversion."
The report details the involvement of Chilean security forces in kidnappings
and robberies designed to appear to be the work of leftist subversives,
and in bombings directed against safe houses used by the left. A
source explains that the military intelligence chiefs had determined that
"the best way to deal with the safe house problem was blowing them up,
if possible, with the terrorists present."
"Suspected Presence of Clandestine Cemeteries on a Military Installation,"
April 11, 1994. [Guatemala]
Sources tell U.S. military intelligence officials that from
1984-86, the army's intelligence directorate (D-2) coordinated the counterinsurgency
campaign in southwest Guatemala from the southern airbase at Retalhuleu,
using it as both an operations post and an interrogation center.
Small buildings that were once used as interrogation cells have since been
destroyed, and pits "that were once filled with water and used to hold
prisoners" have been filled with concrete. To dispose of the prisoners
after interrogation, D-2 personnel would fly them out over the ocean and
push them – sometimes still alive – out of the aircraft. "In this
way, the D-2 has been able to remove the majority of evidence showing that
the prisoners had been tortured and killed." Officers currently stationed
at Retalhuleu wishing to grow plots of vegetables have been denied permission
to cultivate certain areas "because the locations . . . were burial sites
that had been used by the D-2 during the mid-eighties."
"The Fate of Those Captured," November 3, 1994. [Guatemala]
An informant attests that guerrillas captured by the Guatemalan
military must work with military intelligence (D-2) against their former
units or face summary execution. Only those with significant "propaganda
value" are paraded before the media, while most all others are interrogated
extensively, and then either recruited by the D-2 or killed. The
source adds that this has been a long-standing practice that has not changed
under the army's current leadership.
"The Rising Impact of the Bamaca Case on the Guatemalan Military Establishment,"
November 24, 1994. [Guatemala]
A source within the Guatemalan military describes the army's
response to increasing U.S. pressure to clarify the fate of captured rebel
leader Efraín Bámaca Velásquez – the husband of an
American lawyer. The army high command, the source states, has ordered
military personnel to destroy any "incriminating evidence . . . which could
compromise the security or status of any member of the Guatemalan military."
The destruction of documents, holding pens and interrogation facilities
has already been accomplished at the Retalhuleu air base, and the army
has designed a strategy to block future "United Nations investigating commissions"
from entering bases to examine army files. The author of the cable
asserts that, "All written records concerning this case and probably a
thousand others like it have, by now, been destroyed."
"Problems with Military History," February 24, 1995. [Guatemala]
The Guatemalan army vice chief of staff has reportedly prevented
an army historical commission – charged with writing an official history
of the internal conflict – from gaining access to the Guatemalan army archives.
In doing so, Pineda has defied orders from his immediate superiors, and
is said to be working with officers from the Intelligence Directorate (D-2)
"to keep ‘embarrassing' events from reaching public scrutiny." The
source is concerned "that some records may ‘disappear' as a result of BG
Pineda and friends [sic] efforts."
for Director of Operations, US Army Foreign Intelligence Activity, "Operational
Summary of Intelligence Information [Excised] RE: Efraín Bamaca,
Michael DeVine, and Colonel Julio Alpirez," April 17, 1995. [Guatemala]
An undisclosed source provides information on the involvement
of Guatemalan Col. Julio Alpirez in the murders of U.S. citizen Michael
DeVine and guerrilla commander Efraín Bámaca Velásquez,
the husband of an American lawyer. Bámaca, who was captured
by the army in 1989, was placed in a full body cast to prevent escape,
and later executed. DeVine, an innkeeper, was picked-up by an army
patrol investigating his ties to arms and narcotics trafficking.
He "was tortured and murdered" by one of the soldiers who reportedly "wanted
to rob him of what he carried."
"HUMINT to Suffer with Loss of Military Commissioners," July 20, 1995.
A source tells the reporting officer that a recent decision
by the Guatemalan president to disband a nation-wide network of civilian
intelligence informants will dramatically weaken the army's HUMINT capability.
The military commissioners have historically "formed the backbone of the
G-2's HUMINT networks," but have also been involved in activities "which
could have been labeled as illegal by current human rights standards,"
such as "the elimination of individuals viewed to be a threat to the government
and the army."
"Transition of the Military Commissioners," August 29, 1995. [Guatemala]
Although the network of some 35,000 Guatemalan military commissioners
is to be formally decommissioned [see previous document], more than 25,000
will be secretly retained as "army collaborators" and "will continue to
have an invisible role within the army." This arrangement, according
to the source, "allows the army total deniability if and when they are
asked if the military commissioners have been totally disbanded."
on other Political and Military Issues
Below are examples of defense intelligence operational reports
obtained through the Freedom of Information Act on a range of other subjects.
Such information, routinely declassified in the past, would also be withheld
under the proposed legislation.
"Various Attitudes on MLA" [Military Coup in Pakistan], Ca. July 1977.
Defense Attaché, Moscow, "Sov[iet] Communist Party Member's Views
on Polish Crisis," October 22, 1980.
Defense Attaché, Bucharest, "Soviet Estimates on Polish Intervention
Forces," November 4, 1980.
Defense Attaché, Moscow, "Chinese View on Polish Crisis," November
Defense Attaché, Bonn, "Weekend of 28-29 March Ominous for Poland,"
March 27, 1981.
Defense Attaché, Belgrade, "Yugoslavia/Military Intelligence Chief
Comments on Poland and Kosovo," April 7, 1981.
"Nicaragua: Refugee Exodus," August 22, 1983.
U.S. Army Operations Group, "Iranian Travel Controls," May 29, 1986.
U.S. Army Operations Group, "Impact of the Stinger Missile on Soviet and
Resistance Tactics in AF [Afghanistan]," Ca. 1987.
"[Pakistan's] Nuclear Industry," Ca. 1987.
[Alleged Transfer of Patriot Missile Technology from Israel to China],
March 26, 1992.
"Cuban Facilities Associated with Biotechnology," March 1993.
"Biological and Chemical Defense [in Cuba]," March 1992.
"Members of the Cuban Biological Front," March 1992.
Further Information on the Defense
For more information on the evolution and consolidation of the Defense
HUMINT Service see, Richelson, Jeffrey T., "From MONARCH EAGLE to MODERN
AGE: The Consolidation of U.S. Defense HUMINT," International Journal
of Intelligence and Counterintelligence, Vol.10, No.2, pp. 131-164.
Country and Subjects of Army HUMINT Intelligence Information Reports, FY
Sources: Office of the Deputy Chief of Staff for Intelligence,
Historical Review, 1 October 1991 to 30 September 1992 (Washington,
D.C.: ODCSI, 1995), pp. 4-3 and 4-18; Office of the Deputy Chief of Staff
for Intelligence, Annual Historical Review, 1 October 1992 to 30 September
1993 (Washington, D.C.: ODCSI 1995), pp. 4-32 to 4-43. Table
compiled by Jeffrey T. Richelson.
HUMINT Service Organizational Chart
Source: DIA Unclassified release.
National Defense Authorization Act for Fiscal Year 2001
(passed by the Senate July 14, 2000)
SEC. 1045. PROTECTION OF OPERATIONAL FILES OF THE DEFENSE INTELLIGENCE
(a) Authority.--Subchapter I of chapter 21 of title 10, United States
Code, is amended by adding at the end the following:
"Sec. 426. Protection of sensitive information: operational files of
the Defense Intelligence Agency
"(a) Authority To Withhold Operational Files.--The Secretary of Defense
may withhold from public disclosure operational files described in subsection
(b) to the same extent that operational files may be withheld under section
701 of the National Security Act of 1947 (50 U.S.C. 431), subject to
judicial review under the same circumstances and to the same extent as
is provided in subsection (f) of such section.
"(b) Decennial Review of Exempted Operational Files.--Section
702 of the National Security Act of 1947 (50 U.S.C. 432), setting forth
requirements for decennial review of exemptions from public disclosure
and related provisions for judicial review shall apply with respect to
the exemptions from public disclosure that are in force under subsection
(a), subject to the following requirements:
"(1) The Secretary of Defense shall conduct the decennial review
under this subsection.
"(c) Operational Files Defined.--In this section, the term 'operational
files' has the meaning given that term in section 701(b) of the National
Security Act of 1947 (50 U.S.C. 431(b)), except that the references to
elements of the Central Intelligence Agency do not apply.''.
"(2) In the application of the judicial review provisions under subsection
(c) of such section 702--
"(A) the references to the Central Intelligence Agency shall be deemed
to refer to the Secretary of Defense; and
"(B) the reference in paragraph (1) of that subsection to the period
for the first review shall be deemed to refer to the 10-year period beginning
on the day after the date of the enactment of the National Defense Authorization
Act for Fiscal Year 2001.
(d) Clerical Amendment.--The table of sections at the beginning of such
subchapter is amended by adding at the end the following:
"426. Protection of sensitive information: operational files
of the Defense Intelligence Agency.''.
The CIA Information Act of 1984
Full text as amended to the National Security Act of 1947 [50 U.S.C.,
Sec. 701. Exemption of certain operational
files from search, review, publication, or disclosure
(a) Exemption by Director of Central Intelligence
Operational files of the Central Intelligence Agency may be exempted
by the Director of Central Intelligence from the provisions of section
552 of title 5 (Freedom of Information Act) which require publication or
disclosure, or search or review in connection therewith.
(b) ''Operational files'' defined
For the purposes of this title the term ''operational files'' means
(1) files of the Directorate of Operations which document the
conduct of foreign intelligence or counterintelligence operations or intelligence
or security liaison arrangements or information exchanges with foreign
governments or their intelligence or security services;
(c) Search and review for information
(2) files of the Directorate for Science and Technology which document
the means by which foreign intelligence or counterintelligence is collected
through scientific and technical systems; and
(3) files of the Office of Personnel Security which document investigations
conducted to determine the suitability of potential foreign intelligence
or counterintelligence sources; except that files which are the sole repository
of disseminated intelligence are not operational files.
Notwithstanding subsection (a) of this section, exempted operational
files shall continue to be subject to search and review for information
(1) United States citizens or aliens lawfully admitted for
permanent residence who have requested information on themselves pursuant
to the provisions of section 552 of title 5 (Freedom of
(d) Information derived or disseminated from exempted operational files
Information Act) or section 552a of title 5 (Privacy Act of 1974);
(2) any special activity the existence of which is not exempt from
disclosure under the provisions of section 552 of title 5 (Freedom of Information
(3) the specific subject matter of an investigation by the intelligence
committees of the Congress, the Intelligence Oversight Board, the Department
of Justice, the Office of General Counsel of the Central Intelligence Agency,
the Office of Inspector General of the Central Intelligence Agency, or
the Office of the Director of Central Intelligence for any impropriety,
or violation of law, Executive order, or Presidential directive, in the
conduct of an intelligence activity.
(1) Files that are not exempted under subsection (a) of this
section which contain information derived or disseminated from exempted
operational files shall be subject to search and review.
(e) Supersedure of prior law
(2) The inclusion of information from exempted operational files in
files that are not exempted under subsection (a) of this section shall
not affect the exemption under subsection (a) of this section of the originating
operational files from search, review, publication, or disclosure.
(3) Records from exempted operational files which have been disseminated
to and referenced in files that are not exempted under subsection (a) of
this section and which have been returned to exempted operational files
for sole retention shall be subject to search and review.
The provisions of subsection (a) of this section shall not be superseded
except by a provision of law which is enacted after October 15, 1984, and
which specifically cites and repeals or modifies its provisions.
(f) Allegation; improper withholding of records; judicial review
Whenever any person who has requested agency records under section
552 of title 5 (Freedom of Information Act), alleges that the Central Intelligence
Agency has improperly withheld records because of failure to comply with
any provision of this section, judicial review shall be available under
the terms set forth in section 552(a)(4)(B) of title 5, except that -
(1) in any case in which information specifically authorized
under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign relations which is filed with,
or produced for, the court by the Central Intelligence Agency, such information
shall be examined ex parte, in camera by the court;
(2) the court shall, to the fullest extent practicable, determine issues
of fact based on sworn written submissions of the parties;
(3) when a complaint alleges that requested records were improperly
withheld because of improper placement solely in exempted operational files,
the complainant shall support such allegation with a sworn written submission,
based upon personal knowledge or otherwise admissible evidence;
(4) (A) when a complainant alleges that requested records were improperly
withheld because of improper exemption of operational files, the Central
Intelligence Agency shall meet its burden
under section 552(a)(4)(B) of title 5 by demonstrating to the court
by sworn written submission that exempted operational files likely to contain
responsive records currently perform the functions set forth in subsection
(b) of this section; and
(B) the court may not order the Central Intelligence Agency to review
the content of any exempted operational file or files in order to make
the demonstration required under subparagraph (A) of this paragraph, unless
the complainant disputes the Central Intelligence Agency's showing with
a sworn written submission based on personal knowledge or otherwise admissible
(5) in proceedings under paragraphs (3) and (4) of this subsection,
the parties shall not obtain discovery pursuant to rules 26 through 36
of the Federal Rules of Civil Procedure, except that requests for admission
may be made pursuant to rules 26 and 36;
(6) if the court finds under this subsection that the Central Intelligence
Agency has improperly withheld requested records because of failure to
comply with any provision of this section, the court shall order the Central
Intelligence Agency to search and review the appropriate exempted operational
file or files for the requested records and make such records, or portions
available in accordance with the provisions of section 552 of title
5 (Freedom of Information Act), and such order shall be the exclusive remedy
for failure to comply with this section; and
(7) if at any time following the filing of a complaint pursuant to
this subsection the Central Intelligence Agency agrees to search the appropriate
exempted operational file or files for the requested records, the court
shall dismiss the claim based upon such complaint.
Sec. 702. Decennial review of exempted operational
(a) Review by Director of Central Intelligence
Not less than once every ten years, the Director of Central Intelligence
shall review the exemptions in force under subsection (a) of section 431
of this title to determine whether such exemptions may be removed from
any category of exempted files or any portion thereof.
(b) Consideration; historical value; public interest
The review required by subsection (a) of this section shall include
consideration of the historical value or other public interest in the subject
matter of the particular category of files or portions thereof and the
potential for declassifying a significant part of the information contained
(c) Judicial review
A complainant who alleges that the Central Intelligence Agency has
improperly withheld records because of failure to comply with this section
may seek judicial review in the district court of the United States of
the district in which any of the parties reside, or in the District of
Columbia. In such a proceeding, the court's review shall be limited to
determining (1) whether the Central Intelligence Agency has conducted the
review required by subsection (a) of this section within ten years of enactment
of this title or within ten years after the last review, and (2) whether
the Central Intelligence Agency, in fact, considered the criteria set forth
in subsection (b) of this section in conducting the required review.