Porter Goss

Mr. GOSS

Mr. GOSS. Mr. Chairman, reserving the right to object, and I will not object, I wish to explain why I will not object. I respect the gentleman from New York. He has worked hard and means well to bring forward a meaningful amendment. It is an amendment in fact which I think I am prepared to accept if I understand it properly. Mr. Chairman, given the technicalities of this particular rule for this particular subject for this particular permanent select committee, I think that there is a little extra work involved for our members, and we try and bend over backwards to accommodate our members, and it is in that spirit that I am not going to object. Equally, I am very mindful that this year the gentleman from California (Mr. Dixon) specifically asked if we could have as much time as possible so every member would be able to be fully lined up, and as a courtesy to my ranking member, I am prepared not to object. Mr. Chairman, I withdraw my reservation of objection.

Mr. GOSS. Mr. Chairman, I offer an amendment to the amendment.

Mr. GOSS. I yield to the gentleman from Vermont.

Mr. GOSS. Mr. Chairman, to answer the gentleman, we are within our budget allocation, within our caps. We are playing by the rules. We are doing this the way we should be doing it. There has been a great debate about reinvesting to rebuild our intelligence capability in the country. I do not think it has been just fired by some of the headline events we have seen. I would say that those are tragedies. Things have happened that we do not want to happen, bad surprises where people have been killed, embassies blowing up, nuclear testing in India, which we did not catch. It turns out probably we could not have done anything about it. Nevertheless, we should have been on top of it, the things we have been reading about lately, the penetration of the laboratories. It seems to me that the way to deal with that is to look at it forthrightly and say, there are problems here and we need to fix them. Now, we do not fix all problems by throwing money at them. But we do need to have some resources. We need to go out and get the personnel. We need to spot, identify, train, build, education, get the right languages. We are expected in the intelligence community to be the eyes and the ears around the world for anything we can read about anytime, anywhere. That is, basically, what the intelligence community does this day and that is a huge order. And doing that, we are not going to get there by cutting money. We have to do a reasonable amount of investing. Mr. Chairman, I insert the following for printing in the Record: 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: ``First, disclosure of future aggregate figures will be considered only after determining whether such disclosure could cause harm to the national security by showing trends over time. ``Second, we will continue to protect from disclosure any and all subsidiary information concerning the intelligence budget: whether the information concerns particular intelligence agencies or particular intelligence programs. In other words, the Administration intends to draw the line at the top-line, aggregate figure. Beyond this figure, there will be not other disclosures of currently classified budget information because such disclosures could harm national security.'' 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 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, would be likely to 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 provide a description of some of the information that 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. --------------------------------------------------------------------------- \1\ The severity of the damage to the national security affects the level of classification assigned to the information: information reasonably expected to cause exceptionally grave damage is classified TOP SECRET; information reasonably expected to cause serious damage is classified SECRET; and information reasonably expected to cause damage is classified CONFIDENTIAL. --------------------------------------------------------------------------- 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 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 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 appropriations 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 appropriation 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.

Mr. GOSS. Mr. Chairman, I move to strike the last word. Mr. Chairman, I would like to commend the gentleman from New York (Mr. Engel) for his efforts in this area. Obviously this is a pathway the oversight committee has already started down, and I believe the amendment is supportive to interests that we all have. The purpose of the intelligence community is to provide the best possible factual information we can get on a timely basis for our decision makers. We have to make some very tough decisions involving this part of the world these days, and I cannot see anything but good coming out of having the right information at the right time. Mr. Chairman, I believe this amendment takes us that way, and I wish I knew more about all of the things that the gentleman is speaking about, I think we all wish that, but I think that trying to get that information is exactly the right thing for us to be doing. Mr. Chairman, I will be supporting the gentleman's amendment.

Mr. GOSS. Mr. Chairman, I yield back the balance of my time.

Mr. GOSS. Mr. Chairman, I yield myself such time as I may consume. Let me assure the gentleman from Indiana (Mr. Roemer) that all five of the points he made are very much on my schedule. Mr. Chairman, I yield 4\1/2\ minutes to the gentleman from Delaware (Mr. Castle), another subcommittee chairman of our subcommittee system on the Permanent Select Committee on Intelligence who has served us very well and recently addressed one of the points about missiles which we may hear more about.

Mr. GOSS. I yield to the gentleman from Vermont.

Mr. GOSS. Mr. Chairman, that is the amendment we have had the discussion on. I have nothing further.

Mr. GOSS. Mr. Chairman, I offer an amendment to the amendment.

Mr. GOSS. Mr. Chairman, I move to strike the last word. As I understand the gentlewoman's amendment, it would prohibit the engagement in any illegal drug activity by employees, agents or other sources of the CIA. Is that essentially correct?

Mr. GOSS. Mr. Chairman, the gentleman from New York (Mr. Hinchey) is correct.

Mr. GOSS. I yield to the gentlewoman from California.

Mr. GOSS. Mr. Chairman, I obviously support wholeheartedly the spirit of that. I think that, in fact, it is already a fact, that it is against the law for employees, agents or sources of the CIA to break the law, as it should be. The only problem I have with the gentlewoman's amendment is one I think we can resolve very easily, and that is the definition of what an employee is, whether or not it perhaps is so broad that in some unanticipated or unintended way it actually could limit the intelligence community's efforts to wage war on those involved in illegal narcotic trafficking and illegal drug activity. I know that the gentlewoman would not want that. With that one simple reservation, I would be simply in a position to accept the amendment, certainly in the spirit it is offered, and join the gentlewoman in saying very obviously we would not tolerate in any way any incidents, and we will seek out, as the gentlewoman has suggested, any reports we have about wrongdoing in the areas of illegal drug activity by not just the CIA but anybody in the intelligence community over which we have oversight authority. Having said that, I would also point out that actually some progress has been made by the committee since last year we had this conversation, and we do have some reporting, and we will soon have some more on some of these matters of interest to the gentlewoman. I will accept the amendment subject to those remarks.

Mr. GOSS. I yield to the gentleman from California.

Mr. GOSS. Mr. Chairman, I move to strike the last word. With regard to the situation we have on the floor, I am very happy to accommodate the ranking member on his secondary to the amendment. I think that is the right way to perfect the intent of what the gentleman from Vermont is trying to get done. We wish to cooperate in that because we think it is an important issue; and I think this is the right way, in a parliamentary way, to go about it. The concern I have about some of the points that the gentleman has raised, in defense of his amendment, is one of puzzlement, a little bit. We have invited Members to come upstairs and take a look, and it is there. The numbers are there, and the staff is there, and the staff will assist Members. I wish to assure the gentleman that the staff will assist him, in whatever his effort is. The staff will assist Members. They may or may not agree with a Member; it does not matter. If a Member has a legitimate thing they wish to accomplish as a Member of Congress to bring to the other Members, that is why our staff is there. We offer that invitation, and I want to again extend that invitation to the gentleman for next year.

Mr. GOSS. Mr. Chairman, I thank the gentleman from California (Mr. Dixon), the distinguished ranking member, for making that point. It actually is a very important one. It may be subtle to some, but it is extremely important, and I appreciate it. Mr. Chairman, I am very much prepared to accept the amendment of the distinguished gentleman from Ohio (Mr. Traficant). I think it is a good amendment. I think it adds substance to an area that we have already signalled an interest in, and it gets specific in some areas that, in fact, we have had some select committees working on as representative of this institution. So I think the gentleman is on target. I am very much supportive of the amendment and happy to accept it.

Mr. GOSS. Mr. Chairman, I yield 2 minutes to the gentlewoman from New Mexico (Mrs. Wilson), a new member of our committee, who has already established her credentials in helping us with the matters in Los Alamos, which happens to be in her district.

Mr. GOSS. Mr. Chairman, I rise in support of the amendment.

Mr. GOSS. I yield to the gentleman from California.

Mr. GOSS. Mr. Chairman, I am happy to yield 4 minutes to the distinguished gentleman from Florida (Mr. McCollum), a more than highly valued member of the committee, chairman of one of our subcommittees, a member who has led the task force on drug efforts that have been ongoing these years, a man whose contributions through the Committee on the Judiciary and his value from that position on the committee is extraordinary.

Porter Goss

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