Alert Oct. 19, 2004

We have an open government disaster in the making.

Both the House and Senate versions of the pending intelligence reform bill appear to provide a blanket exemption from FOIA for any and all information that falls within the control of the new National Intelligence Director.

Neither bill says that outright, of course. What each does is transfer the responsibility for “protecting intelligence sources and methods from unauthorized disclosure” from the Central Intelligence Director to the new National Intelligence Director.

But that is the language that the Supreme Court cited in a 1985 ruling, CIA v. Sims, that said the CIA had a (b)(3), or statutory, exemption from FOIA for any information contained in "operational files." By claiming the exemption, the CIA is able to avoid judicial review of its decisions.

Now, Congress appears ready to give that exemption to the new National Intelligence Director, whose authority would reach into many departments and agencies beyond the CIA, including the FBI.

As far as we know, there has been no debate or discussion on these provisions. It’s not at all clear that members of either House know the impact of the legislation in this regard.

We are trying to get more information but will almost certainly be drafting a letter to the conferees in the next 48 hours. We’ll need a very quick turnaround on signatures. There is a report today that the White House is pressing Congress for fast action – a bill on the President’s desk before the election.

Attached is a more detailed report on the legislation drafted by Kate Martin at the Center for National Security Studies.

Pete Weitzel.