Lawsuit: CIA Withholds Documents Using Legal Exemption It Does Not Have Authority to Apply

For the past eight years, the CIA has used an exemption under the Freedom of Information Act (FOIA) that “protects intelligence sources and methods” to justify the withholding of certain records from requesters.

But a federal lawsuit filed against the CIA charges that the agency does not have the authority to deny records under what is known as a (b)(3) exemption unless the Director of the CIA consulted with the Office of the Director of National Intelligence (ODNI) and received specific authorization in each instance it had denied records under that rule, which it apparently has not done.

The “sources and methods” exemption has been routinely cited over the years in cases where FOIA requesters have sought records from the CIA involving the treatment of detainees in custody of the CIA and policies revolving around the so-called “war on terror.” Moreover, civil liberties advocates have alleged the CIA has used the (b)(3) exemption to conceal records that, if otherwise released, would show the agency engaged in unlawful activity.

In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act (IRTPA), which was aimed at reforming the intelligence community in the wake of the 9/11 attacks and created the position of Director of National Intelligence (DNI), the Privacy and Civil Liberties Oversight Board and the National Counterterrorism Center (NCTC).

The law, which granted the intelligence community greater powers to wage war against terrorism at the expense of civil liberties, privacy groups argued, shifted responsibility from Director of the CIA (D/CIA) (the IRTPA changed the title of the head of the CIA from Director of Central Intelligence (DCI) to (D/CIA)) to the DNI pertaining to issues revolving around the protection of intelligence sources and methods.

However, according to the lawsuit, since 2004, “CIA has repeatedly invoked the ‘protect intelligence sources and methods’ clause of the National Security Act as an Exemption (b)(3) withholding statute” even though the agency appears to not have received authorization from ODNI to invoke the exemption as a rationale for claiming certain records sought under FOIA cannot be released.

“CIA possesses no independent authority to withhold records from FOIA requests under Exemption (b)(3) to protect intelligence sources and methods,” the lawsuit states. “The Exemption (b)(3) withholding statute cited for these exemptions, the National Security Act, specifically gives that authority solely to DNI. Congress expressly removed this authority from CIA with the passage of IRTPA … Therefore, every time CIA invokes the ‘intelligence sources and methods’ language of the National Security Act … it is doing so without authorization from the agency vested with that authority.”

A spokesperson at the CIA’s FOIA division did not respond to requests for comment.

The lawsuit was filed last month by National Security Counselors, a public interest law firm in Arlington, Virginia, about which Truthout had previously written. The complaint alleged the CIA unlawfully changed its long-standing policy for how it would process certain Mandatory Declassification Review (MDR) records requests by implementing a new fee structure. It was recently amended to reflect the new claims regarding the CIA’s use of the “sources and methods” exemption.

Kel McClanahan, the executive director of National Security Counselors whose firm is also a plaintiff in the lawsuit, said he has long suspected the CIA was improperly citing the (b)(3) exemption. But he said it wasn’t until last October “that my suspicions crystallized with the revelation that the ODNI had no records of the types of authorizations or delegations that would be required by law” in order for the CIA to deny records requested under FOIA by invoking the protection of “intelligence sources and methods.” (Full disclosure: McClanahan is representing this reporter in a FOIA lawsuit filed earlier last month against the CIA, FBI, and other government agencies.)

“In FOIA litigation, the agency claiming any exemption has to provide a declaration in support of it,” McClanahan said. “So I started getting curious when I would see litigation over ‘intelligence sources and methods’ where the ODNI did not provide a declaration; only the CIA did. I was a close follower of the IRTPA’s path through Congress and I knew that this authority had been transferred to the DNI. So I deduced that either a) the DNI had delegated this authority to the CIA a while back, or b) the CIA was claiming exemptions without the proper authority.”

Alex Abdo, a staff attorney with the ACLU’s National Security Project, said the CIA has frequently cited the (b)(3) exemption during the civil liberties group’s FOIA litigation against the agency, especially in matters revolving around the treatment of detainees, which he believes is an attempt to “hide unlawful activity.”

For example, Abdo said the CIA “recently took the position that waterboarding is an ‘intelligence method’ within the meaning of its Exemption 3 statute, notwithstanding President Obama’s declaration that waterboarding is torture and, therefore, illegal.”

Abdo said he does not know “whether the DNI authorized each of the invocations” the CIA cited under the “sources and methods” exemption.

In September 2010, McClanahan’s firm filed a FOIA request with ODNI seeking all of the agency’s records that would document the authority the DNI gave the CIA to invoke the (b)(3) exemption. A year later, four memos were turned over, but ODNI withheld 13 others on national security grounds.

McClanahan said he was “shocked” to learn that the documents he received not only showed “no authority had been delegated [by ODNI] to the CIA to independently ‘protect intelligence sources and methods,’ but no authority had been delegated to any agency to do so. Even the delegations that we did see were solely at the litigation stage, begging the questions of how the agencies were invoking (b)(3) and the National Security Act before the plaintiffs sued.”

McClanhan said he “has it on good authority” the 13 documents the ODNI withheld are related to specific FOIA lawsuits.

The memos McClanahan did receive show ODNI has only authorized the CIA to cite the (b)(3) exemption in one specific case: a lawsuit Amnesty International filed against the CIA in 2006 for records pertaining to the treatment of terrorism suspects in custody of the agency. The CIA had previously denied Amnesty’s FOIA request and withheld records on grounds that it would expose “intelligence sources and methods” if released.

The April 11, 2008, memo addressed to then-CIA Director Michael Hayden said the records Amnesty International was trying to obtain under FOIA would “directly implicate sensitive intelligence sources and methods that must be protected from unauthorized disclosure in the interest of the national security of the United States.”

J.M. McConnell, who was DNI at the time and signed the memo, told Hayden he was “authorized to take all necessary and appropriate measures to ensure that these sources and methods are protected during the course of this litigation.”

McClanahan acknowledged the possibility that the authorizations for the CIA and other agencies exist and that they were simply not found by the ODNI’s FOIA office during a search.

“If that is the case, I will be the first to admit the CIA is obeying the law,” McClanahan said. “All they have to do is prove it. But I have more faith in the ODNI’s ability to conduct a thorough search than I do in the CIA’s ability to conscientiously apply FOIA exemptions.”

Still, until a document is produced that says the CIA has the authority to withhold records under the (b)(3) exemption, McClanahan wants a judge to issue an order finding the CIA in violation of its requirements under FOIA as well as an injunction blocking the agency from further denying records by citing a need to “protect sources and methods” without “specific authorization or delegation” from DNI. He said if the DNI “authors a Memorandum of Understanding tomorrow authorizing the CIA to make these arguments, that would probably meet the requirements of the law.”

“As important as protecting intelligence sources and methods is, you’d think that someone would have wanted to cross all the t’s and dot all the i’s to make sure that they stayed protected after the authority to do so changed hands,” McClanahan added. “Or perhaps the CIA just decided to keep on doing what it had always done, expecting that nobody would notice the difference and call them out on it.”