CRS Report for Congress
Intelligence Spending: Public Disclosure Issues
Updated February 15, 2007
Richard A. Best Jr.
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
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Intelligence Spending: Public Disclosure Issues
Summary
Although the United States Intelligence Community encompasses large Federal
agencies — the Central Intelligence Agency (CIA), the Defense Intelligence Agency
(DIA), the National Reconnaissance Office, the National Geospatial-Intelligence
Agency (NGA), and the National Security Agency (NSA) — among others — neither
Congress nor the executive branch has regularly made public the total extent of
intelligence spending. Rather, intelligence programs and personnel are largely
contained, but not identified, within the capacious budget of the Department of
Defense (DOD). This practice has long been criticized by proponents of open
government and many argue that the end of the Cold War has long since removed any
justification for secret budgets. In 2004, the 9/11 Commission recommended that
“the overall amounts of money being appropriated for national intelligence and to its
component agencies should no longer be kept secret.”
The Constitution mandates regular statements and accounts of expenditures, but
the courts have regarded the Congress as having the power to define the meaning of
the clause. From the creation of the modern U.S. Intelligence Community in the late
1940s, Congress and the executive branch shared a determination to keep intelligence
spending secret. Proponents of this practice have argued that disclosures of major
changes in intelligence spending from one year to the next would provide hostile
parties with information on new program or cutbacks that could be exploited to U.S.
disadvantage. Secondly, they believe that it would be practically impossible to limit
disclosure to total figures and that explanations of what is included or excluded
would lead to damaging revelations.
On the other hand, some Members dispute these arguments, stressing the positive
effects of open government and the distortions of budget information that occur when
the budgets of large agencies are classified. Legislation has been twice enacted
expressing the “sense of the Congress” that total intelligence spending figures should be
made public, but on several separate occasions both the House and the Senate have voted
against making such information public. The Clinton Administration released total
appropriations figures for intelligence and intelligence-related activities for fiscal years
1997 and 1998, but subsequently such numbers have not been made public. Legal efforts
to force release of intelligence spending figures have been unsuccessful.
Central to consideration of the issue is the composition of the “intelligence
budget.” Intelligence authorization bills have included not just the “National
Intelligence Program” — the budgets for CIA, DIA, NSA et al., but also a wide
variety of other intelligence and intelligence-related efforts conducted by the Defense
Department. Shifts of tactical programs into or out of the total intelligence budgets
have hitherto been important only to budget analysts; disclosing total intelligence
budgets could make such transfers matters of concern to a far larger audience.
Legislation reported by the Senate Intelligence Committee in January 2007 (S. 372)
would require that funding for the National Intelligence Program be made public but
it does not address other intelligence activities. Earlier versions of this Report were
entitled Intelligence Spending: Should Total Amounts Be Made Public? This report
will be updated as circumstances change.
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Contents
In troduction ......................................................1
What Constitutes the Intelligence Budget?..............................2
Past Budgetary Practice.........................................4
Authorization .................................................9
Appropriations ...............................................11
The Question of Disclosure.........................................12
Policy Arguments, Pro and Con..................................14
Constitutional Questions Related to Disclosure of Aggregate Intelligence
Budget Figure................................................18
History of the Constitutional Language............................19
Judicial Interpretation.........................................24
Conclusions Regarding Statement and Account Clause...............31
Post-Cold War Developments.......................................32
Recommendations by the 9/11 Commission and Subsequent Legislation..40
Conclusion ......................................................42
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Intelligence Spending:
Should Total Amounts Be Made Public?
Introduction
Since the creation of the modern U.S. intelligence community after World War
II, neither Congress nor the executive branch has made public the total extent of
intelligence spending except for two fiscal years in the 1990s. Rather, intelligence
programs and personnel have largely been contained, but not identified, within the
capacious expanse of the budget of the Department of Defense (DOD). This practice
has long been criticized by proponents of open government. The intelligence reform
effort of the mid-1970s that led to greater involvement of Congress in the oversight
of the Intelligence Community also generated a number of proposals to make public
the amounts spent on intelligence activities. Many observers subsequently argued
that the end of the Cold War further reduced the need to keep secret the aggregate
amount of intelligence spending. According to this view, with the dissolution of the
Soviet Union, there are few foreign countries that can take advantage of information
about trends in U.S. intelligence spending to develop effective countermeasures.
Terrorist organizations, it is argued, lack the capability of exploiting total intelligence
spending data.
In recent years, proposals for making public overall totals of intelligence
spending have come under renewed consideration. In 1991 and 1992 legislation was
enacted that stated the “sense of the Congress” that “the aggregate amount requested
and authorized for, and spent on, intelligence and intelligence-related activities
should be disclosed to the public in an appropriate manner.” Nevertheless, both the
House and the Senate voted in subsequent years not to require a release of
intelligence spending data. During the Clinton Administration, Director of Central
Intelligence (DCI) George Tenet twice took the initiative to release total figures for
appropriations for intelligence and intelligence-related activities. Despite the release
of data for fiscal years 1997 and 1998, however, no subsequent appropriations levels
have been made public.
The issue has not, however, died. The 9/11 Commission, in its final report,
recommended that “the overall amounts [or the “top line”] of money being
appropriated for national intelligence and to its component agencies should no longer
be kept secret. Congress should pass a separate appropriations act for intelligence,
defending the broad allocation of how these tens of billions of dollars have been
assigned among the varieties of intelligence work.”1 A number of proposals for
Intelligence reform legislation in 2004 included provisions for making the budget
1 U.S., National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report (Washington: Government Printing Office, 2004), p. 416.
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Terrorism Prevention Act of 2004 (P.L. 108-458) [hereafter referred to as the
Intelligence Reform Act] did not include provisions for making budget numbers
public. More recently, the FY2007 Intelligence Authorization legislation (S. 372)
reported in the Senate in January 2007 would require publication of budget totals for
national, but not tactical, intelligence programs.
This report describes the constituent parts of the intelligence budget, past
practice in handling intelligence authorizations and appropriations, the arguments
that have been advanced for and against making intelligence spending totals public,
a legal analysis of these issues, and a review of the implications of post-Cold War
developments on the question. It also describes past congressional interest in keeping
intelligence spending totals secret.
What Constitutes the Intelligence Budget?
The meaning of the term “intelligence budget” is not easily described. Although
some may assume it is equivalent to the budget of the Central Intelligence Agency,
in actuality it encompasses a wide variety of agencies and functions in various parts
of the Federal Government that are involved in intelligence collection, analysis, and
dissemination. At the same time, some important information collection efforts (such
as reporting by U.S. embassies to the State Department) are not considered as
intelligence activities and their funding is not included in the intelligence budget. A
further complication, to be addressed below, is the separate category of intelligence-
related activities undertaken in DOD that are included in overall intelligence
spending categories. For some purposes, it is sufficient to describe intelligence and
intelligence-related activities as those authorized by annual intelligence authorization
acts.
In the context of annual budget reviews, both the executive branch and Congress
have sought a comprehensive overview of all intelligence collection systems and
activities. Thus, there emerged the concept of an intelligence community, not a
monolithic organization but a grouping of governmental entities ranging in size from
the CIA and NSA down to the small intelligence offices of the Treasury and Energy
Departments. Except for the CIA, this community consists of components that are
integral parts of agencies that are not themselves part of the Intelligence Community
and their budgets are subject to separate authorization processes. Thus, for instance,
the State Department’s Bureau of Intelligence and Research is both part of the
Intelligence Community and an organizational component of the Department of
State. Its budget is considered as part of the overall intelligence budget and as a
component of the State Department budget. Similar situations apply, on a much
larger and expensive scale, in the Defense Department. Since these intelligence
components are closely tied to their parent departments and share facilities and
administrative structure with them, it is not always possible to desegregate
intelligence and non-intelligence costs with precision.
For the purposes of this discussion, the U.S. “intelligence budget” is considered
to consist of those activities authorized by the annual intelligence authorization acts,
viz. the intelligence and intelligence-related activities of the following elements of
the United States government:
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(2) the National Security Agency (NSA);
(3) the Defense Intelligence Agency (DIA);
(4) the National Geospatial-Intelligence Agency (NGA) (formerly the National
Imagery and Mapping Agency (NIMA));
(5) the National Reconnaissance Office (NRO);
(6) the intelligence elements of the Army, Navy, Air Force, and the Marine
Corps
(7) the State Department’s Bureau of Intelligence and Research (INR);
(8) the Federal Bureau of Investigation (FBI);
(9) the Department of Homeland Security (DHS);
(10) the Coast Guard;
(11) the Department of the Treasury;
(12) the Department of Energy;
(13) the Drug Enforcement Administration (DEA).
The parameters of the intelligence budget are, to some extent, arbitrary. Lines
between intelligence and other types of information-gathering efforts can be fine. As
noted earlier, reporting by the State Department’s Foreign Service Officers is an
invaluable adjunct to intelligence collection, but is not considered an intelligence
activity. Similarly, some reconnaissance and surveillance activities, mostly
conducted in DOD, are very closely akin to intelligence, but for administrative or
historical reasons have never been considered as being intelligence or intelligence-
related activities per se.
The intelligence budget as authorized by Congress is now divided into two parts,
the National Intelligence Program (NIP) and the Military Intelligence Program (MIP).
NIP programs (formerly categorized as the National Foreign Intelligence Program
(NFIP)) are those undertaken in support of national-level decision making and are
conducted by the CIA, DIA, NSA, the NRO, NGA, and other Washington-area
agencies. MIP programs are those undertaken by DOD agencies in support of
defense policymaking and of military commanders throughout the world. Until
September, 2005, there were two sets of programs within DOD — the Joint Military
Intelligence Program (JMIP) and Tactical Intelligence and Related Activities
(TIARA). JMIP programs, established as a separate category in 1994, supported
DOD-wide activities. TIARA programs were defined as “a diverse array of
reconnaissance and target acquisition programs which are a functional part of the2
basic military force structure and provide direct support to military operations.” In
recent years the overlap among intelligence and intelligence-related activities has
grown — satellite photography, for instance, can now be made immediately available
to tactical commanders and intelligence acquired at the tactical level is frequently
transmitted to national-level agencies. As a result, JMIP and TIARA were combined
by the Defense Department into the MIP in September 2005.
Within the MIP are programs that formerly constituted the JMIP that support
DOD-wide intelligence efforts as well as programs directly supporting military
operations that were formerly categorized as TIARA. The relationship of
2 U.S. Congress, House of Representatives, 103rd Cong., 1st sess., Permanent Select
Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 1994, H.Rept.
103-162, Part 1, Jun. 29, 1993, p. 12.
is not likely to be understood by many public observers. In 1994, then-DCI R. James
Woolsey described them as a “loose amalgamation of activities that may vary from
year to year, depending on how the various military services decide what constitutes
tactical intelligence.”3 Intelligence-related programs, which may constitute
somewhere around a third of total intelligence spending, are integral parts of defense
programs; in many cases they are also supported by non-intelligence personnel and
facilities. (The administrative expenses, for instance, of a military base that has
intelligence-related missions as well as non-intelligence functions would probably
not be included in intelligence accounts.) The role of intelligence-related programs
is sometimes misinterpreted in public discussions of the multi-billion dollar
intelligence effort.
With the passage of the Intelligence Reform Act in 2004, the Director of
National Intelligence (DNI) has extensive statutory authorities for developing and4
determining the NIP and for presenting it to the President for approval. The
President in turn forwards the NIP to Congress as part of the annual budget
submission in January or February of each year. The Office of the DNI (ODNI)
serves as the DNI’s staff for annual budget preparation and submission. The DNI
participates in the development of the MIP by the Secretary of Defense. The Under
Secretary of Defense for Intelligence (USD(I)) has the responsibility to “oversee all
Defense intelligence budgetary matters to ensure compliance with the budget policies
issues by the DNI for the NIP.”5 The USD(I) also serves as Program Executive for
the MIP and supervises coordination during the programming, budgeting, and
execution cycles. Thus, in the development of both the NIP and the MIP essential
roles are played by the Office of the DNI and the office of the USD(I). The two
offices have overlapping responsibilities and close coordination is required.
Past Budgetary Practice
Budgeting for secret intelligence efforts has long presented difficult challenges
to the Congress. Realizing the need for some direction over the intelligence effort
that had been disbanded in the immediate aftermath of World War II, President
Truman established, in a directive of January 22, 1946, a coordinative element for
intelligence activities, the Central Intelligence Group (CIG), headed by a Director of
Central Intelligence, and consisting of representatives from the State, War, and Navy
Departments. This was not the creation of a new agency, but a coordinative group;
personnel and facilities were to be provided “within the limits of available6
appropriations.” This arrangement was questioned, however, because of concern
that specific authorization by Congress would be legally required to make funds
3 Office of the Director of Central Intelligence before the Permanent Select Committee on
Intelligence, U.S. House of Representatives, “Public Disclosure of the Intelligence Budget,”
Feb. 22, 1994, p. 10.
4 Pursuant to 50 U.S.C. 403-1. Many of these functions were previously the responsibility
of the DCI.
5 Department of Defense Directive 5143.01.
6 Directive on Coordination of Foreign Intelligence Activities, Jan. 22, 1946, Public Papers
of the Presidents, Harry S. Truman, 1946, (Washington: Government Printing Office, 1962),
p. 88.
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illegal for the CIG to expend funds after January 22, 1947.7
Shortly after taking office in June, 1946, the second DCI, General Hoyt S.
Vandenberg, arranged for the creation of a “working fund” consisting of allotments
from the Departments of State, War, and the Navy, under the supervision of the
Comptroller General, to cover the costs of the relatively small CIG.8 It cannot be
readily determined if funds were transferred from all three departments; the larger
budgets of the War and Navy Departments may have made them more likely9
contributors than the State Department.
Vandenberg, realizing the administrative weakness of this situation, began an
effort to obtain congressional approval of an independent intelligence agency with
its own budget. The National Security Act of 1947, which created the unified
National Defense Establishment, included provisions for a Central Intelligence
Agency, headed by a Director of Central Intelligence. It also authorized the transfer
of “personnel, property, and records” of the CIG to the new CIA; it did not, however,
provide additional statutory language regarding the administration of the CIA. With
the creation of the CIA by the National Security Act of 1947, arrangements were
made for the continuation of previous funding mechanisms; “[t]he Agency was to
conform as nearly as possible to normal procedures until further legislation by10
Congress should make exceptions fitting the special needs of the Agency.”
It was recognized that follow-on enabling legislation would be required. After
some delays, Congress passed the Central Intelligence Act of 1949 (P.L. 81-110) to
provide a firmer statutory base for the CIA and to establish procedures for regular
appropriations. This legislation, reported by the two armed services committees,
provided authority for the CIA “to transfer to and receive from other Government
agencies such sums as may be approved by the Bureau of the Budget [predecessor of
today’s Office of Management and Budget]....” The 1949 Act also provided that
7 See the discussion in an official CIA history prepared in 1952-1953 and published
commercially in 1990, Arthur B. Darling, The Central Intelligence Agency: An Instrument
of Government to 1950 (University Park, PA: Pennsylvania State University Press, 1990),
pp. 104-105.
8 Ibid., pp. 114-115, 166-192.
9 There was, in addition, opposition in the House Appropriations Committee to the State
Department’s intelligence effort. See Hanson W. Baldwin, “Intelligence Arm Vital,” New
York Times, April 24, 1946, p. 4, cited in Wesley K. Wark, “‘Great Investigations:’ The
Public Debate on Intelligence in the US after 1945,” Defense Analysis, June 1987, p. 123.
10 Darling, Central Intelligence Agency, p. 189. Darling comments on the use of
unvouchered funds, i.e., funds provided to the DCI for unspecified purposes, “They must
be kept secret; even the provision for them by Congress should not be known.” Ibid. Darling
continues: the Comptroller General “was willing that unvouchered funds which the National
Security Council approved should be exempt from the normal restrictions upon expenditure.
But the Bureau of the Budget held that such approval in advance was more properly the
function of the Director of the Budget. To this the Comptroller agreed and the proposal
went to Congress. The Senate’s committee, however, thought otherwise and exempted the
Agency from any control by the Bureau of the Budget over the amount of the expenditures
which should be unvouchered.” Page 190. This passage reflects the concern that existed in
Congress in 1947 for the secrecy of intelligence expenditures.
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authority of this Act without regard to limitations of appropriations from which
transferred....”
Representative Carl Vinson, speaking on the floor of the House shortly after
passage of the 1949 Act, stated that the legislation contained:
the authority to transfer and receive from other Government agencies such sums
as may be approved by the Bureau of the Budget for the performance of any of
the agency functions. This is how the Central Intelligence Agency gets its
money. It has been going on since the agency was created, and this simply
legalizes that important function which is the only means by which the amount11
of money required to operate an efficient intelligence service can be concealed.
In practice, the CIA Act of 1949 provides funding for CIA through the defense12
authorization and appropriation process. Funding for other intelligence activities
undertaken by DOD agencies was logically included in defense bills.
For many years, authorizations and appropriations for CIA were handled by a
relatively small number of Members and staff of the two appropriations committees
with consultation with members of the two armed services committees. According
to available sources, senior Members of the Appropriations Committees insisted on
maintaining the secrecy of the contents of the CIA’s budget requests and13
congressional actions in response. In 1956, subcommittees were created in the
Armed Services and Appropriations Committees of each House to oversee the CIA.
Many assessments of the practice of congressional oversight of intelligence activities
during the Truman, Eisenhower, Kennedy, and Johnson Administrations have
concluded that the congressional role was in large measure supportive and
perfunctory. This view has, however, come under serious challenge and there is
considerable evidence that Congress took close interest in intelligence spending,
especially in regard to major surveillance systems and the construction of14
headquarters buildings. The small handful of Members responsible for intelligence
oversight had a close working relationship with the CIA. For a number of years,
beginning in the Eisenhower Administration, Senator Richard Russell served both
as chairman of the Armed Services Committee and of the Subcommittee on Defense15
Appropriations and had an especially important influence on intelligence spending.
11 Congressional Record, Mar. 7, 1949, p. 1949.
12 At one point some funds for CIA were included in the State Department budget, but
reductions in the overall State Department budget (resulting from the unpopularity of State
among some Members at that time) also resulted in cuts in CIA spending; accordingly one
Member suggested in 1951 that CIA spending be included in DOD accounts. See David M.
Barrett, The CIA and Congress: the Untold Story from Truman to Kennedy (Lawrence, KS:
University Press of Kansas, 2005), p. 120.
13 Barrett, CIA and Congress, pp. 118-119, quoting Lyman Kirkpatrick, The Real CIA (New
York: MacMillan, 1968), pp. 116-117.
14 See Barrett, CIA and Congress, especially pp. 118-124; 215-222.
15 See Gilbert C. Fite, Richard B. Russell, Jr., Senator from Georgia (Chapel Hill, NC:
University of North Carolina Press, 1991), especially pp. 368-369.
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significant part because of efforts to determine the extent of Soviet nuclear
capabilities through overhead surveillance by manned aircraft such as the U-2s and
reconnaissance satellites, and through a worldwide signals intelligence effort. NSA
and DIA emerged as major intelligence agencies with large budgets; other agencies
were created to launch satellites and interpret overhead photography. These
capabilities, which contributed directly to the design of strategic weapons systems
and to the negotiation of strategic arms control agreements with the Soviet Union,
cost many billions of dollars. These programs were initiated, funded by Congress,
and administered in secrecy and involved a number of intelligence agencies and
components of DOD. President Lyndon Johnson said on March 16, 1967:
I wouldn’t want to be quoted on this but we’ve spent 35 or 40 billion dollars on
the space program. And if nothing else had come out of it except the knowledge
we’ve gained from space photography, it would be worth 10 times what the
whole program has cost. Because tonight we know how many missiles the
enemy has and, it turned out, our guesses were way off. We were doing things
we didn’t need to do. We were building things we didn’t need to build. We
were harboring fears we didn’t need to harbor. Because of satellites, I know how16
many missiles the enemy has.
During the Ford Administration, E.O. 11905 of February 18, 1975, consolidated
the budget for all intelligence agencies and provided for a comprehensive review of
the National Foreign Intelligence Program by the DCI and senior DOD and NSC17
officials. Subsequent executive orders (most recently E.O. 12333 of December 4,
1981) and the Intelligence Authorization Act for FY1993 (P.L. 102-496)18 clarified
and strengthened the DCI’s role. The Intelligence Reform and Terrorism Prevention
Act of 2004 (P.L. 108-458) gave the newly established position of Director of
National Intelligence (DNI) authority to coordinate intelligence activities across the
government and to manage the NIP. The DNI has specific responsibilities for
developing and determining the annual consolidated NIP budget. The DNI also
participates in the development of the MIP which is the responsibility of the
Secretary of Defense.
A key factor encouraging consolidated review of the intelligence budget has
been increasingly detailed oversight by Congress. Efforts in the 1950s and 1960s to
establish intelligence committees or to involve a larger number of Members in
intelligence oversight were rebuffed, with oversight remaining in the hands of a small
number of senior members. This situation was altered in the aftermath of the
Vietnam War. In reaction to a series of revelations about allegedly illegal and
improper activities by intelligence agencies in 1975, Congress created two
(temporary) select committees to investigate the CIA and other intelligence
16 Quoted in Dwayne A. Day, John M. Logsdon, and Brian Latell, eds., Eye in the Sky: the
Story of the Corona Spy Satellites (Washington: Smithsonian Institution Press, 1998), p. 1.
17 By Executive Order 11905 of February 18, 1975.
18 Section 104(b) of this legislation modified the National Security Act of 1947 to provide
that “The Director of Central Intelligence shall provide guidance to elements of the
intelligence community for the preparation of their annual budgets and shall approve such
budgets before their incorporation in the National Foreign Intelligence Program.”
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intelligence issues and conducted well-publicized hearings. Although budgetary
issues were not at the heart of the investigations, there emerged a consensus that
congressional oversight of intelligence agencies needed to be strengthened and
formalized and permanent intelligence committees established. There was also
widespread sentiment expressed that more information regarding intelligence
agencies and activities should be made public.20
Following the work of the Church and Pike Committees, Congress moved to
revamp oversight of intelligence agencies. The Senate Select Committee on
Intelligence (SSCI) was established in 1976, the House Permanent Select Committee
on Intelligence (HPSCI) in 1977. Each of these committees was granted oversight
of the CIA as well as other intelligence agencies and charged to prevent the types of
abuses that the Church and Pike Committees had criticized. In conjunction with their
oversight duties, HPSCI and SSCI were responsible for authorizing funds for
intelligence activities undertaken by the CIA and other agencies throughout the
government. There is, however, a crucial difference between the charters of the two
committees. Although HPSCI has oversight of NIP and shares (with the Armed
Services Committee) oversight of the MIP, the SSCI has oversight only over the NIP.
In the Senate, oversight of the MIP is conducted by the Armed Services Committee
(with informal consultation with the intelligence committee).21 Both SSCI and the
Senate Armed Services Committee are represented in conferences on intelligence
authorization bills; the final bill, as reported by the conference committee, authorizes
both intelligence activities and intelligence-related activities.
The two intelligence committees are not the sole organs of congressional
oversight. The armed services committees often issue sequential reports on
intelligence authorization bills. Annual defense authorization acts include the large
national intelligence agencies in DOD as well as the intelligence efforts of the four
19 The Senate Select Committee to Study Governmental Operation with Respect to
Intelligence Activities, known as the Church Committee, and the House Select Committee
on Intelligence, known as the Pike Committee. Two years earlier, the Special Senate
Committee to Study Questions Related to Secret and Confidential Documents recommendedrd
(S.Res. 466, 93 Congress) that appropriations committees include line items in defense
appropriations bills for each of the major intelligence agencies and for the intelligence
programs of the armed services. This recommendation was not adopted. See U.S. Congress,ndst
Senate, 102 Cong., 1 sess., Select Committee on Intelligence, Authorizing Appropriations
for Fiscal Year 1992 for the Intelligence Activities of the U.S. Government, the Intelligence
Community Staff, the Central Intelligence Agency Retirement and Disability System, and for
Other Purposes, S.Rept. 102-117, Jul. 24, 1991, pp. 9-10.
20 The Church Committee concluded: “Although there is a question concerning the extent
to which the Constitution requires publication of intelligence expenditures information, the
Committee finds that the Constitution at least requires public disclosure and public
authorization of an annual aggregate figure for United States national intelligencethnd
activities.” U.S. Congress, 94 Cong., 2 sess., Senate, Select Committee to Study
Governmental Operations with Respect to Intelligence Activities, Final Report, Book I,
Foreign and Military Intelligence, S.Rept. 94-755, Apr. 26, 1976, p. 425.
21 See U.S. Congress, Senate, 104th Cong., 2nd sess., Select Committee on Intelligence,
Authorizing Appropriations for Fiscal Year 1997 for the Intelligence Activities of the United
States Government and the Central Intelligence Agency Retirement and Disability System,
S.Rept. 104-258, pp. 2-3.
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in other legislation although some departments have standing authorizations rather
than annual authorization acts.
Authorization
As is the case with other congressional committees, intelligence oversight has
entailed reviewing annual budget proposals for the Intelligence Community
submitted by the administration, conducting hearings, preparing an annual
authorization bill, and managing it for the respective chamber. The two committees
publish reports to accompany the annual intelligence authorization bills, with dollar
amounts for various intelligence agencies and activities included in classified22
annexes. The classified annexes are available to all Members, but only within
Intelligence Committee offices and sanctions exist for any unauthorized release of
classified data.
The intelligence committees, however, do not have exclusive jurisdiction over
expenditures for intelligence programs. National defense authorization acts also
contain authorizing legislation for intelligence activities funded within their purview.
There are various parts of defense authorization bills that are classified; some cover23
what are known as special access or “black” programs. These include not only
some intelligence programs but also procurement of new weapons systems such as
stealth aircraft. Members can obtain information about classified parts of defense
authorization bills from the Armed Services Committees.
Other authorization bills cover some intelligence activities providing a form of
shared oversight. Budgets for INR, DEA and the FBI are funded through the
appropriation bills that cover the Departments of Commerce, Justice, and State and
similar procedures are used for Treasury and Energy Department intelligence entities
in the Treasury, Postal Service, and General Government and Energy and Water
Development appropriations bills. All of these combined, however, represent a small
percentage of total intelligence spending–for instance, the FY2007 budget request for
INR totaled only $51 million and other agencies are considerably smaller.
There has been some controversy regarding the nature of authorizing legislation
required. Section 504(a) of the National Security Act provides that appropriated
funds may be obligated or expended for an intelligence or intelligence-related activity
only if ... those funds were specifically authorized by the Congress for use for such
activities... .” The nature of specific authorization had not, however, been defined.
On November 30, 1990, President George H.W. Bush refused to sign (“pocket
vetoed”) the FY1991 Intelligence Authorization bill when it was presented to him
(after the 101st Congress had adjourned) and for over eight months intelligence
22 As noted below, a relatively small portion of the authorization, having to do the CIA
Retirement and Disability Fund and the Intelligence Community Management Staff
Account, is included in the unclassified reports.
23 Legislative provisions regarding the reporting of budgetary data for special access
programs were enacted in the FY1988 Defense Authorization Act (P.L. 100-180).
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believed that authorizations contained within the National Defense Authorization Act
for FY1991 (P.L. 101-510) were sufficiently specific to meet the requirements of the
statute, the House Intelligence Committee subsequently stated that, “It is the view of
the congressional intelligence committees that only an intelligence authorization bill
provides the degree of specificity necessary to comply with the meaning and intent
of Section 504(a).”25 In 1993, language was included in the House report
accompanying the FY1994 Defense Authorization Act that the Armed Services
Committee “does not intend that the inclusion of ... authorization [of NFIP programs]
be considered a specific authorization, as required by section [504] of the National
Security Act of 1947... .”26 (This statement indicated that, whereas NFIP programs
were not specifically authorized in defense authorization bills, TIARA programs
were.) In addition, section 309 of the FY1994 Intelligence Authorization Act for
FY1994 (P.L. 103-178) amended the National Security Act of 1947 to make it
explicit in law that the general authorization included in the 1947 legislation27 does
not satisfy the requirement for specific authorization of intelligence and intelligence-
related activities.
In some years when appropriations have been passed prior to final action on
authorization bills, the appropriations acts have included a provision similar to
section 8092 of the FY2006 Defense Appropriations Act (P.L. 109-148):
Funds appropriated by this Act, or made available by the transfer of funds in this
Act, for intelligence activities are deemed to be specifically authorized by the
Congress for purposes of section 504 of the National Security Act of 1947 (50
U.S.C. 414) during fiscal year 2006 until the enactment of the Intelligence
Authorization Act for fiscal year 2006.
No FY2006 intelligence authorization bill was passed and, as a result, this brief
clause in the appropriations bill served as the requisite authorization during FY2006.
The FY2007 defense appropriations bill was passed prior to floor consideration of
a FY2007 intelligence authorization bill and a similar clause was included in the
defense appropriations bill (P.L. 109-289, section 8083). (No intelligence
24 In a letter of December 4, 1990, the chairmen of the two Intelligence Committees wrote
to the President advising him of their view that only authorizations in the annual intelligence
authorization bills satisfied the requirement of Section 504(a) of the National Security Act
of 1947 (as amended) for a specific authorization for the funding of intelligence or
intelligence-related activities. “While recognizing a need for important intelligence
activities and programs to proceed in the interim, the chairmen’s letter underscored the
committees’ expectation that intelligence agencies would comply with all of the limitations
and conditions on the expenditure of funds which were contained in the vetoed bill.” U.S.ndst
Congress, 102 Cong., 1 sess., House of Representatives, Permanent Select Committee on
Intelligence, Intelligence Authorization Act, Fiscal Year 1991, H.Rept. 102-37, April 22,
1991, p. 3.
authorization bill for FY2007 (S. 372) was reported in the Senate in January 2007.)
Although these provisions meet the statutory requirement for a “specific
authorization,” significantly less congressional guidance is provided for intelligence
programs.
Appropriations
As is the case with all government activities, the appropriations committees
have a central role in intelligence programs. Even during the Cold War period when
congressional oversight of intelligence activities received little public attention,
annual appropriations were required and extensive hearing were held. In recent
years, appropriations committees have had an increasingly significant influence on
the conduct of intelligence activities. In 1998 a supplemental appropriation act (P.L.
105-277) added substantial funds for intelligence efforts not included in the annual
authorization bill, and in the post-9/11 period the practice of relying on supplemental
appropriations for funding the regular operations of intelligence agencies has limited
the extent of congressional guidance in regard to the intelligence budget.
The reliance on supplemental appropriations has been widely criticized; the
House Intelligence Committee in 2003 noted that while supplemental appropriations
had reflected crisis in the aftermath of terrorist attacks, “The repeated reliance on
supplemental appropriations has an erosive negative effect on planning, and impedes
long-term, strategic planning. The Committee hopes that the IC has finally reached
a plateau of resources and capabilities on which long-term strategic planning can now
begi n.”28
In addition to use of supplemental appropriations to fund intelligence activities,
as noted above the required “specific authorization” of intelligence programs
required by the section 504 of the National Security Act has in FY2006 been supplied
by one paragraph (section 8092) of the FY2006 defense appropriations act (P.L. 109-
148). The reliance on appropriations measures to authorize intelligence programs
may change the contours of intelligence oversight in Congress by emphasizing the
role of the two appropriations committees.
The defense subcommittees of the two appropriations committees review
intelligence budget requests and approve funding levels for intelligence agencies that
28 U.S. Congress, 108th Cong., 1st sess., House of Representatives, Permanent Select
Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2004, H.Rept.
108-163, June 18, 2003, p. 22. The following year nine members of the House Intelligence
Committee in a minority report to the FY2005 intelligence authorization bill argued even
more forcefully against funding through supplemental appropriations acts:” Members on
both sides of the aisle have roundly criticized this growing practice of funding the
Intelligence Community in bits and pieces, rather than for a full fiscal year, the Congress is
supposed to do it. Senior intelligence officials have told the Committee that this practice
makes it impossible to plan, forcing them to ‘rob Peter to pay Paul’ until the additional funds
arrive–potentially jeopardizing key counterterrorism operations.” Minority views of
Representatives Harman, Hastings, Reyes, Boswell, Peterson, Cramer, Eshoo, Holt, andthnd
Ruppersberger, U.S. Congress, 108 Cong., 2 sess., House of Representatives, Permanent
Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2005,
H.Rept. 108-558, Jun. 21, 2004, p. 69.
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defense appropriations acts, that is, CIA as well as NSA, DIA, the NRO, and NGA.
There is a difference between appropriations for the CIA and the ODNI which,
although included in defense appropriations acts, are transferred by the Office of
Management and Budget (OMB) directly to the DNI and the CIA Director without
the involvement of DOD. The Secretary of Defense is, however, heavily involved in
the budgets and activities of intelligence agencies in DOD. The CIA and the defense
agencies account for the vast bulk of all intelligence spending. Much smaller
amounts are funded in appropriations measures for other departments that contain
elements of the Intelligence Community.
The role of the appropriations committees can be significant. For instance, in
1992, the Defense Appropriation Act for FY1993 (P.L. 102-396) reportedly reduced
intelligence spending to a level significantly lower than authorized by the Intelligence
Authorization Act (P.L. 102-496).29 In 1990-1991, the Senate Appropriations
Committee and the SSCI worked closely together to sponsor a facilities consolidation
plan for some CIA activities without the active involvement of the HPSCI.
Substantial changes have been made to intelligence programs by appropriations
measures and in FY2006 no intelligence authorization act exists and thus agencies
rely solely on appropriations legislation.
The Question of Disclosure
Since the creation of the modern Intelligence Community in the aftermath of
World War II, intelligence budgets have not been made public.30 At the conclusion
of hostilities in August 1945, intelligence activities were transferred from the Office
of Strategic Services (OSS) to the Army, Navy, and State Departments, which
assumed responsibility for their funding. Meeting the expenses of the CIG, created
in 1946, required the establishment of a “working fund,” as noted above, which
received allocations from the three departments. This pattern was continued when
the CIA was established the following year (although there may have been relatively
few, if any, transfers from the State Department). The transfer of appropriated funds
was done secretly, reportedly at the insistence of Members of Congress.31
There are several parts of the intelligence budget that are made public. The
costs of the Intelligence Community Management Account (CMA) are specified in
annual intelligence authorization acts as are the costs of the CIA Retirement and
29 See statements by Representative Combest, Congressional Record, Aug. 3, 1993, p.
H5678; Representative Pelosi, Congressional Record, Aug. 3, 1993, p. H5697. See also
George Lardner Jr. and Walter Pincus, “Congress May Seek Review of All Intelligence
Spending,” Washington Post, Jan. 10, 1993, p. A4.
30 During World War II, spending for the Office of Strategic Services (OSS), the predecessor
of the CIA, was openly included in National War Agencies Appropriation Acts.
31 Walter Pforzheimer, the first Legislative Counsel to the CIG and the CIA, testified in 1992
to the SSCI, that “... from the very beginning ... [the intelligence budget] has always been
secret, and it was not at our initial request, although we supported it. It was the Congressndnd
who kept it secret....” U.S. Congress, Senate, 102 Cong., 2 sess., Select Committee on
Intelligence, S. 2198 and S. 421 to Reorganize the United States Intelligence Community,
S. Hearings 894, February 20, March 4,12,19, 1992, p. 151.
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the CIARDS covers retirement costs of CIA personnel not eligible for participation
in the government-wide retirement system. For FY2005, $310.4 million was
authorized for 310 full-time CMA personnel and $239.4 million was authorized for
CIARDS. In addition, the budget for the State Department’s Bureau of Intelligence
and Research is made public and some, but not all, tactical intelligence programs are
identified in unclassified DOD budget submissions. Careful scrutiny of officially-
published data on intelligence expenditures would not, however, provide a valid
sense of the size and content of the intelligence budget.
The Church and Pike committees both called for public disclosure of the total32
amounts of each annual intelligence budget. The then DCI, George H.W. Bush, and
President Ford both appealed to the Senate not to proceed with disclosure and the33
question was referred to the newly created SSCI. After conducting hearings, SSCI
recommended (by a one vote margin) in May 1977 (S.Res. 207, 95th Congress) that
aggregate amounts appropriated for national foreign intelligence activities for
FY1978 be disclosed.34 The full Senate did not, however, act on this
recommendation.
HPSCI, established by House Rule XLVIII after the termination of the Pike
Committee, made an extensive study of the disclosure question. After conducting35
hearings in 1978 (and despite the willingness of then DCI Stansfield Turner to
accept disclosure of “a single inclusive budget figure”) the House Committee
concluded unanimously that it could find “no persuasive reason why disclosure of
any or all amounts of the funds authorized for the intelligence and intelligence-related
32 The Church Committee recommended that the planned congressional “intelligence
oversight committee[s] should authorize on an annual basis a ‘National Intelligence Budget,’
the total amount of which would be made public.” The Church Committee further
recommended that the intelligence committees “consider whether it is necessary, given the
Constitutional requirements and the national security demands, to publish more detailedthnd
budgets.” U.S. Congress, Senate, 94 Cong., 2 sess., Select Committee to Study
Governmental Operations with Respect to Intelligence Activities, Foreign and Military
Intelligence, Book I, April 26, 1976, p. 470. Similarly, the Pike Committee recommended
that “all intelligence related items be included as intelligence expenditures in the President’s
budget, and that there be disclosure of the total single sum budgeted for each agency
involved in intelligence, or if such an item is a part or portion of the budget of another
agency or department that it be separately identified as a single item.” U.S. Congress, Housethnd
of Representatives, 94 Cong., 2 sess., Select Committee on Intelligence,
Recommendations of the Final Report, H.Rept. 94-833, Feb. 11, 1976, p. 3.
33 U.S. Congress, Senate, 95th Cong., 1st sess., Select Committee on Intelligence, Whether
Disclosure of Funds Authorized for Intelligence Activities is in the Public Interest, Hearings,
April 27-28, 1977.
34 U.S. Congress, Senate, 95th Cong., 1st sess., Select Committee on Intelligence, Whether
Disclosure of Funds for the Intelligence Activities of the United States is in the Public
Interest, S.Rept. 95-274, Jun. 16, 1977, p. 9. The appropriated amount, rather than the
authorized amount, was to be disclosed because it represented final congressional action
embodied in legislation. Ibid., p. 4, 10.
35 U.S. Congress, House of Representatives, 95th Cong., 2nd sess., Permanent Select
Committee on Intelligence, Disclosure of Funds for Intelligence Activities, Hearings,
January 24-25, 1978.
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either chamber to take action, the disclosure question receded into the background
as efforts (ultimately unsuccessful) were underway during the Carter Administration
to draft a legislative charter for the entire Intelligence Community. The Reagan
Administration showed markedly less interest in such questions as it launched a
major expansion of intelligence activities. The issue would return during the Clinton
Administration after the end of the Cold War and again in the recommendations of
the 9/11 Commission as noted below.
It should be understood that with the establishment of the two intelligence
committees in the 1970s, Members have been able to review budget figures contained
in the classified annexes accompanying reports intelligence authorization bills,
although rules of both chambers prevent the divulging of classified information.
Policy Arguments, Pro and Con
Since the 1970s, arguments for and against the public disclosure of intelligence
spending levels have turned on essentially the same issues, viz. the constitutional
issue regarding the requirement for full reports of government expenditures
(discussed below) and the broader question of the value of open political discourse,
the dangers of revealing useful information to actual or potential enemies, and the
difficulty of providing and debating aggregate numbers without being drawn into37
providing details.
Advocates of disclosure argue that greater public discussion of intelligence
spending made possible by the disclosure of spending levels would ultimately lead
to a stronger intelligence effort. They maintain that no organization, even one with
superior management and personnel, is immune to waste and inefficiency and that
wider appreciation of the costs and benefits of intelligence could contribute in the
long run toward improvements in the organization and functioning of intelligence.38
Senator William Proxmire put the case as follows:
36 U.S. Congress, House of Representatives, 95th Cong., 2nd sess., Permanent Select
Committee on Intelligence, Annual Report Pursuant to Section 3 of House Resolution 658,thst
95 Congress, 1 session , H.Rept. 95-1795, Oct. 14, 1978, pp. 15-16.
9/11 Commission Report, p. 416.
efficient government when they do know. We only make improvements when
we get criticized, and you can only criticize when you know what you are talking
about, when you have some information.
If you know that there is a certain amount being spent on intelligence, then you
are in a much stronger position to criticize what you are getting for that39
expenditure.
Also, in terms of efficiency, publication of an aggregate figure for intelligence
spending would result in a cleaner, more accurate defense budget. As presently
handled, the defense budget includes significant unspecified national intelligence
expenditures (e.g., the greater part of the CIA budget) that in many cases are not
actually part of defense spending per se. Such expenditures make the defense budget
and various components of it seem larger than is the case. Identification of those
intelligence expenditures that are extraneous to defense could give the public a more
accurate perception of defense costs.40
Those holding this position argue, in addition, that publication of limited
intelligence spending totals would provide no useful information to a present or
future adversary. Even during the height of the Cold War, Soviet authorities, they
maintain, undoubtedly had a reasonably accurate knowledge of the extent of the U.S.
intelligence budget and, in any event, were more concerned with the nature of our
activities rather than the size of expenditures. Noting the demise of the Soviet
Union, Representative Dan Glickman, then the Chairman of the House Intelligence
Committee, stated in 1994 that “Unless a justification on national security grounds
exists, keeping the budget totals secret serves only one purpose, and that is to prevent
the American taxpayer from knowing how much money is spent on intelligence.”41
Opposition to public release has been based on the conviction that intelligence
by its very nature stands apart from other activities of the government and the
publication of general budgetary information, potentially exploitable by an adversary
attempting to discern U.S. intelligence capabilities and operations, could compromise
the nation’s intelligence capabilities. This concept perceives intelligence to be an
exceptional activity that cannot be handled according to normal procedures of an
open society. This is particularly true of those operations that involve the collection
of intelligence information. Sophisticated reconnaissance devices, electronic
technology, and human resources operating at significant risk are particularly
vulnerable to human error or hostile penetration; consequently, they require
extraordinary protective measures. In 1983, HPSCI described the unique
vulnerabilities of intelligence systems as follows:
Intelligence activities and capabilities are inherently fragile. Unlike weapons
systems, which can be countered only by the development of even more
39 U.S. Congress, Senate, 95th Cong., 1st sess., Select Committee on Intelligence, Whether
Disclosure of Funds Authorized for Intelligence Activities Is in the Public Interest, Hearings,
April 27-28, 1977, p. 41.
40 See Louis Fisher, “Confidential Spending and Governmental Accountability,” George
Washington Law Review, vol. 47, January 1979.
41 Opening Statement, Chairman Dan Glickman, February 22, 1994, p. 3.
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subject to immediate compromise. Often they can be countered or frustrated
rapidly simply on the basis of knowledge of their existence. Thus budget
disclosure might well mean more to this country’s adversaries than to any of its
citizens. Further, this information could then be used to frustrate United States42
intelligence missions.
At the end of the Cold War along with the downsizing of the defense budget it
was argued that intelligence spending should be significantly reduced. Some
advocates of reduction anticipated that publication of spending totals would lead to
a perception by the public that such levels of intelligence spending were unjustified
and could be lowered. This potential for public opposition to existing levels of
spending was also recognized by many who defended intelligence spending levels
and probably reinforced their opposition to making the budget public.
Although such perspectives may have been widely shared in the early 1990s,
later in the decade the emergence of international terrorism and other transnational
threats lead to concerns that intelligence spending should not be further reduced. The
9/11 attacks altered the climate regarding intelligence spending; even though there
was widespread criticism of the performance of intelligence agencies, there was a
pervasive determination to spend whatever was necessary on intelligence as part of
the global war on terrorism. In recent years the argument for making intelligence
spending levels public has not in general been a proxy argument for reducing
intelligence spending inasmuch as few would argue that less intelligence is needed
given the realistic potential for more Al Qaeda attacks.
Other opponents of disclosure have argued that making public a few numbers
indicating total spending levels (whether budget requests, authorizations, or
appropriations) will be meaningless to the public debate. Explanations will be
immediately required to show that these figures are divided among several functions,
threats, and agencies, cover national and tactical programs, may or may not include
administrative and logistical support, etc. Pressures will in a politically adversarial
context mount to publish these sub-totals as well as an aggregated figure. It is further
argued that these explanations would likely result in a degree of transparency for U.S.
intelligence activities that would allow adversaries to take effective countermeasures.
There is also a contrary argument that intelligence spending, even within the
NIP, is in large measure related to defense programs and could be usefully expressed
as a percentage of overall defense spending. Admiral Bobby Ray Inman, who served
as Deputy Director of Central Intelligence in the early Reagan Administration,
testified in 1991 that, “I am certainly prepared to make unclassified the total amount,
and defend to the public why 10% of our total defense efforts spent for both national
and tactical intelligence is not a bad goal at all. Just as I don’t think that 11 or 12%43
of the budget for research and development is a bad goal at all for the country.”
42 U.S. Congress, House of Representatives, 98th Congress, 2d session, Permanent Select
Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 1984, Report to
Accompany H.R. 2968, H.Rept. 98-189, Part I, May 16, 1983, p. 2.
43 U.S. Congress, Senate, 102nd Cong., 1st sess., Select Committee on Intelligence, Review
of Intelligence Organization, S. Hearing 102-91, Mar. 21, 1991, p. 24.
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intelligence spending might also reveal major new programs under development (the
example of the U-2s and satellites is sometimes mentioned). Premature exposure of
such new capabilities could severely limit their ability to acquire valuable
information before adversaries become aware of U.S. capabilities. On the other
hand, according to a 1991 Senate report, DCI Stansfield Turner “testified in 1977 that
there had been no ‘conspicuous bumps’ in the intelligence budget for the preceding
decade. The [Senate] Select Committee’s experience is similarly that no secrets
would have been lost by publishing the annual aggregate budget total since then.”44
Unconvinced defense analysts insist that revealing the fact of significant changes in
U.S. intelligence budgets from year to year will alert unfriendly governments or
groups to new efforts against them (or to a slackened effort by the U.S. that can be
exploited).
Public discussion of the question of making intelligence budgets public has
usually turned on the question of the constitutionality or the propriety of keeping
intelligence spending figures classified. Beyond these issues, however, lies the less-
discussed issue of the nature of intelligence and intelligence-related spending. The
existence of the NIP and the MIP has been publicly acknowledged in many Executive
and Legislative Branch publications. However, the respective roles of the separate
programs are not well known outside of a relatively narrow circle of intelligence
specialists. The role of tactical programs in particular is rarely considered in the
context of discussions of making intelligence spending levels public. Observers
express concern that characterizing some projects related to information support for
targeting as a tactical intelligence program could be characterized in some cases as
arbitrary inasmuch as similar projects may be included in other parts of the Defense
budget. Reportedly, inclusion of some projects in the MIP program is not consistent
from year to year and thus could lead to confusion in tracking intelligence spending.
Some consideration has been given to making public only the budget for the NIP
which contains funding for the CIA, the National Reconnaissance Office (NRO), the
National Geospatial-Intelligence Agency (formerly the National Imagery and
Mapping Agency (NIMA)), and the National Security Agency (NSA).
When making total NIP spending public, some observers would consolidate
responsibility for authorizing NIP in the two intelligence committees, leaving the
armed services to deal with the MIP. It is likely that jurisdiction of the Armed
Services committees will continue inasmuch as the NIP includes the budgets of major
defense agencies that report to the Secretary of Defense and to which are assigned
many thousands of military personnel. Some argue that the close ties between the
NRO, NGA, and NSA and other Defense agencies also require that their budgets be
prepared in the same Department.
44 U.S. Congress, Senate, 102nd Cong., 1st sess., Select Committee on Intelligence,
Authorizing Appropriations for Fiscal Year 1992 for the Intelligence Activities of the U.S.
Government, the Intelligence Community Staff, the Central Intelligence Agency Retirement
and Disability System, and for Other Purposes, S.Rept. 102-117, Jul. 24, 1991, p. 12. It is
not clear if this conclusion included covert actions (officially secret but widely debated) that
have been funded in the intelligence budget process.
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was established by section 901 of the FY2003 National Defense Authorization Act
(P.L. 107-314). The incumbent of this position, currently Stephen Cambone, is
charged with overseeing the budgets of DOD’s intelligence agencies, including the
portions that fall within the NIP and those are contained in the MIP. The USD(I) is
the key point of contact between DOD and the Office of the DNI and the two offices
collaborate in the preparation of annual budget submissions to Congress along with
those of other intelligence agencies.
Constitutional Questions Related to Disclosure of
Aggregate Intelligence Budget Figure
An issue that arises in considering whether or not to disclose an aggregate
intelligence budget figure is whether the Statement and Account Clause of the United
States Constitution requires such disclosure. The pertinent constitutional language
is contained in Article I, Section 9, Clause 7, which states:
No money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from time to
time. [Emphasis added.]
A brief examination of the history of this language and of the scant case law
interpreting the Statement and Account Clause may be of assistance in placing the
disclosure issue in context.
History of the Constitutional Language
During the Constitutional Convention in Philadelphia, the first language on the
subject of statements and accounts was offered on September 14, 1787, by George
Mason. The debate on the matter, as reflected in Madison’s “Notes of Debates,” was
as follows:
Col. Mason moved a clause requiring “that an Account of the public
expenditures should be annually published” Mr. Gerry 2ded. the motion
Mr Govr. Morris urged that this wd. be impossible in many cases.
Mr. King remarked, that the term expenditures went to every minute shilling.
This would be impracticable. Congs. might indeed make a monthly publication,
but it would be in such general Statements as would afford no satisfactory
information.
Mr. Madison proposed to strike out “annually” from the motion & insert “from
time to time” which would enjoin the duty of frequent publications and leave
enough to the discretion of the Legislature. Require too much and the difficulty
will be get a habit of doing nothing. The articles of Confederation require half-
yearly publications on this subject — A punctual compliance being often
impossible, the practice has ceased altogether —
Mr Wilson 2ded. & supported the motion — Many operations of finance cannot
be properly published at certain times.
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Mr. Fitzimmons — It is absolutely impossible to publish expenditures in the full
extent of the term.
Mr. Sherman thought “from time to time” the best rule to be given.
“Annual” was struck out — & those words — inserted nem: con:
The motion of Col. Mason so amended was then agreed to nem: con: and added
after — “appropriations by law as follows — “And a regular statement and
account of the receipts & expenditures of all public money shall be published45
from time to time.”
During the Virginia ratifying convention, the Statement and Account Clause
occasioned comment on at least two occasions. On June 12, 1788, James Madison
observed:
The congressional proceedings are to be occasionally published, including all
receipts and expenditures of public money, of which no part can be used, but in
consequence of appropriations made by law. This is a security which we do not
enjoy under the existing system. That part which authorizes the government to
withhold from the public knowledge what in their judgment may require secrecy,
is imitated from the confederation — that very system which the gentleman46
advocates.
On the 17th of June, 1788,47 George Mason raised a question as to the “from time
to time” language, and the following debate ensued:
Mr. GEORGE MASON apprehended the loose expression of “publication from
time to time” was applicable to any time. It was equally applicable to monthly
and septennial periods. It might be extended ever so much. The reason urged in
45 2 M. Farrand, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 618-19 (1937)
(hereinafter Farrand); I W. Benton, 1787 DRAFTING THE U.S. CONSTITUTION 1004-05
(1986). There is some non-substantive variation between these two sources as to use of
abbreviations, and occasionally as to punctuation or spelling. The Farrand version is quoted
directly above. No corrections of punctuation, spelling or capitalization have been made,
so that the quotation would as closely parallel the original as possible. The term nem. con.
stands for nemine contradicente, the Latin term meaning “no one contradicting.” The
Journal of the Convention, published in Boston in 1819, is quite cryptic, shedding no light
on the debate on this clause. However, it does indicate, at pp. 377-78, on September 14,
1787: “Add at the end of the sixth clause of the ninth section, first article, `and a regular
statement and account of the receipts and expenditures of all public money shall be
published from time to time.’” See 2 Farrand at 610 n.2. Farrand also notes that the last
paragraph of the quotation included in the text above may have been a later insertion, and
if so he opines that it was taken from this notation in the Journal. 2 Farrand at 619 n. 17.
46 3 M. Farrand, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 311 (1911), citing
Robertson, DEBATES OF THE CONVENTION OF VIRGINIA, 1788 236 (2d ed. 1805).
47 Elliot lists this date as the 15th of June 1788, but he lists both the immediately preceding
Saturday and Monday as being the 14th of June. In fact, the 14th of June was on a Saturdayth
in 1788, so the correct date for the Tuesday of that week would be the 17 of June, 1788,
as reflected in Farrand.
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require secrecy. In matters relative to military operations and foreign
negotiations, secrecy was necessary sometimes; but he did not conceive that the
receipts and expenditures of the public money ought ever to be concealed. The
people, he affirmed, had a right to know the expenditures of their money; but that
this expression was so loose, it might be concealed forever from them, and might
afford opportunities of misapplying the public money, and sheltering those who
did it. He concluded it to be as exceptionable as any clause, in so few words,
could be.
Mr. LEE (of Westmoreland) thought such trivial argument as that just used by
the honorable gentleman would have no weight with the committee. He
conceived the expression to be sufficiently explicit and satisfactory. It must be
supposed to mean, in the common acceptation of language, short, convenient
periods. It was as well as if it had said one year, or a shorter term. Those who
would neglect this provision would disobey the most pointed directions. As the
Assembly was to meet next week, he hoped gentlemen would confine themselves
to the investigation of the principal parts of the Constitution.
Mr. MASON begged to be permitted to use that mode of arguing to which he had
been accustomed. However desirous he was of pleasing that worthy gentleman,
his duty would not give way to that pleasure.
Mr. GEORGE NICHOLAS said it was a better direction and security than was
in the state government. No appropriation shall be made of the public money but
by law. There could not be any misapplication of it. Therefore, he thought,
instead of censure it merited applause; being a cautious provision, which few
constitutions, or none, had ever adopted.
Mr. CORBIN concurred in the sentiments of Mr. Nicholas on this subject.
Mr. MADISON thought it much better than if it had mentioned any specified
period; because, if the accounts of the public receipts and expenditures were to
be published at short, stated periods, they would not be so full and connected as
would be necessary for a thorough comprehension of them, and detection of any
errors. But by giving them an opportunity of publishing them from time to time,
as might be found easy and convenient, they would be more full and satisfactory
to the public, and would be sufficiently frequent. He thought, after all, that this
provision went farther than the constitution of any state in the Union, or perhaps
in the world.
Mr. MASON replied, that, in the Confederation, the public proceedings were to
be published monthly, which was infinitely better than depending on men’s
virtue to publish them or not, as they might please. If there was no such
provision in the Constitution of Virginia, gentlemen ought to consider the
difference between such a full representation, dispersed and mingled with every
part of the community, as the state representation was, and such an inadequate
representation as this was. One might be safely trusted, but not the other.
Mr. MADISON replied, that the inconveniences which had been experienced
from the Confederation, in that respect, had their weight in him in recommending
this in preference to it; for that it was impossible, in such short intervals, to
adjust the public accounts in any satisfactory manner.
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consider myself at liberty to take a short view of the whole. I wish to do it very
briefly. Give me leave to remark that there is a bill of rights in that government.
There are express restrictions, which re in the shape of a bill of rights; but they
bear the name of the 9th section. The design of the negative expressions in this
section is to prescribe limits beyond which the powers of Congress shall not go.
These are the sole bounds intended by the American government. Whereabouts
do we stand with respect to a bill of rights? Examine it, and compare it to the
idea manifested by the Virginian bill of rights, or that of the other states. The
restraints in this congressional bill of rights are so feeble and few, that it would
have been infinitely better to have said nothing about it. The fair implication is,
that they can do every thing they are not forbidden to do. What will be the result
if Congress, in the course of their legislation, should do a thing not restrained by
this 9th section? It will fall as an incidental power to Congress, not being
prohibited expressly in the Constitution....
If the government of Virginia passes a law in contradiction to our bill of rights,
it is nugatory. By that paper the national wealth is to be disposed of under the
veil of secrecy; for the publication from time to time will amount to nothing, and
they may conceal what they may think requires secrecy. How different it is in
your own government! Have not the people seen the journals of our legislature
every day during every session? Is not the lobby full of people every day? Yet
gentlemen say that the publication from time to time is a security unknown in our
state government! Such a regulation would be nugatory and vain, or at least
needless, as the people see the journals of our legislature, and hear their debates,
every day. If this be not more secure than what is in that paper, I will give up
that I have totally misconceived the principles of the government. You are told
that your rights are secured in this new government. They are guarded in no
other part but this 9th section. The few restrictions in that section are your only
safeguards. They may control your actions, and your very words, without being
repugnant to that paper.
The existence of your dearest privileges will depend upon the consent of
Congress, for they are not within the restrictions of the 9th section.... 48
Some attention to this clause was also given in the New York ratifying
convention and in the Maryland House of Delegates. The pertinent portion of the
New York debates took place on June 27, 1788. During those debates, Mr.
Chancellor Livingston, in expounding upon concerns raised with regard to the power
to tax, stated in pertinent part:
... You will give up to your state legislatures every thing dear and valuable; but
you will give no power to Congress, because it may be abused; you will give
them no revenue, because the public treasures may be squandered. But do you
not see here a capital check? Congress are to publish, from time to time, an
account of their receipts and expenditures. These may be compared together;
48 III J. Elliot, THE DEBATES OF THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787 459-62 (1888) (hereinafter Elliot); see also, 2 Farrand at 326-27
(spelling, capitalization, and punctuation as in the original) (Farrand contains ellipses in
place of part of this day’s debates, including comments of Mr. Lee, Mr. Mason, Mr. Corbin,
Mr. Nicholas, and Mr. Henry).
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detected, and the people may use the constitutional mode of redress....
... I beg the committee to keep in mind, as an important idea, that the accounts
of the general government are, “from time to time,” to be submitted to the public
inspection.
Hon. Mr. SMITH remarked, that “from time to time’ might mean from century
to century, or any period of twenty or thirty years.
The CHANCELLOR asked if the public were more anxious about any thing
under heaven than the expenditure of money. Will not the representatives, said
he, consider it essential to their popularity, to gratify their constituents with full49
and frequent statements of the public accounts? There can be no doubt of it.
On November 29, 1787, the Delegates to the Constitutional Convention were
called before the Maryland House of Delegates to explain the Principles, upon which50
the proposed Constitution was founded. James McHenry, in his explanation of
Section 9, stated in part:
... When the Public Money is lodged in its Treasury there can be no regulation
more consistent with the Spirit of Economy and free Government that it shall
only be drawn forth under appropriation by Law and this part of the proposed
Constitution could meet with no opposition as the People who give their Money51
ought to know in what manner it is expended.
Thus, the history of this provision sheds some light upon the range of views
with regard to anticipated benefits and intended sweep of this language, but does not
give great attention to the possibility of secret funding for intelligence activities.
Rather, the debate focused principally upon the general need for such a provision, the
timing of the statements and accounts, and the practical impact of such a
requirement. Nevertheless, there were a few indications that some of the delegates
considered the possibility of secrecy attached to some of those statements and
accounts. For example, one might compare Mr. Wilson’s observations during the
Constitutional Convention with those of Mr. Mason at the Virginia ratifying
convention. Mr. Wilson noted that some financial operations could not be published
at certain times. Mr. Mason recognized that at times necessity might dictate that
some secrecy would attach to military operations or foreign negotiations, but rejected
the notion that receipts and expenditures of public money should ever be concealed.52
The most explicit mention of receipts and expenditures shrouded in secrecy is
contained in the remarks of Mr. McHenry. He regarded the clause’s requirement of
publication from time to time as so broad as to permit the Congress to dispose of the
49 II Elliot at 345-47.
50 This document, included in 3 Farrand at 144-150, was among the manuscripts of John
Leeds Bozman, and was identified by Mr. Bernard C. Steiner of the Enoch Pratt Free
Library, Baltimore, as part of the legislative records of Maryland, in the handwriting of one
of the clerks of the legislature. 3 Farrand at 144 n. 2.
51 3 Farrand at 149-150.
52 For a discussion of some historical instances of confidential spending, see Fisher,
“Confidential Spending and Governmental Accountability,” 47 G.W. L. REV. 347 (1979);
see also, Halperin v. CIA, 629 F.2d 144, 157-60 (D.C. Cir. 1980).
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history of the clause leaves it uncertain whether or to what extent his views were
shared by others.
It appears clear that the concern over how public funds would be spent was the
motivating force behind the inclusion of the Statement and Account Clause. The
clause seems to impose an affirmative duty to disclose information with regard to
public receipts and expenditures. These general outlines do not appear to provide
unequivocal guidance as to the scope and frequency of these disclosures, however,
and there are some indications that at least delay in releasing some information and
possibly secrecy of some information was anticipated, whether with approbation or
alarm, by some of those at the Constitutional Convention and the ratifying
conventions.
Judicial Interpretation
Further insight may be drawn from an examination of judicial interpretation of
the clause in the intelligence budget context. Several cases appear to be of
significance in this regard. In 1974, the United States Supreme Court decided United
States v. Richardson, 418 U.S. 166 (1974). There a federal taxpayer challenged the
constitutionality of provisions of the Central Intelligence Agency Act of 1949
concerning public reporting of expenditures on the ground that they violated the
Statement and Account Clause. The provisions at issue permitted the CIA to account
for its expenditures solely on the certificate of the Director, 50 U.S.C. § 403j(b).
Richardson had made several attempts to obtain detailed information regarding
the CIA’s expenditures from the Government Printing Office and the Fiscal Service
of the Bureau of Accounts of the Treasury Department, but found the information he
received unsatisfactory. He questioned the constitutionality of the provision and
requested that the Treasury Department seek an opinion from the Attorney General
on this question. The Treasury Department declined to do so, and Richardson then
filed suit. The district court dismissed for lack of standing and on the ground that the
subject matter raised political questions not amenable to judicial determination.
Richardson’s request for a three-judge court to try the matter was also rejected by the
District Court. The Court of Appeals for the Third Circuit, sitting en banc, reversed,
and remanded for consideration by a three-judge court.
The Supreme Court granted certiorari and reversed. The issue before the Court
was whether the respondent had standing to sue. The Court found that he did not,
without reaching the merits of the constitutional question.53 In so doing, the Court
noted:
53 But see Justice Douglas’ dissenting opinion, 418 U.S. at 197-202. Justice Douglas
reviewed the history of the Statement and Account Clause, concluding that it was inserted
into the Constitution to give the public knowledge of the way public funds are spent. He
concluded that to permit Congress to determine to withhold a regular statement and account
with regard to an agency is to reduce the clause to a nullity. Further, he asserted that if the
solution to the failure of the Congress to provide such a statement and account is the
electoral process, then the public must have “a basic knowledge of at least the generality of
the accounts under every head of government” if the franchise is to be exercised
intelligently. Id., at 201. Justice Douglas would have affirmed the Court of Appeals holding
that the taxpayer had standing to sue.
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can do so. In a very real sense, the absence of any particular individual or class
to litigate these claims gives support to the argument that the subject matter is
committed to the surveillance of the Congress, and ultimately to the political54
process....
In footnote 11, 418 U.S. at 178, the Court also observed:
Although we need not reach or decide precisely what is meant by “a regular
Statement and Account,” it is clear that Congress has plenary power to exact any
reporting and accounting it considers appropriate in the public interest. It is
therefore open to serious question whether the Framers of the Constitution ever
imagined that general directives to the Congress or the Executive would be
subject to enforcement by an individual citizen. While the available evidence is
neither qualitatively nor quantitatively conclusive, historical analysis of the
genesis of cl. 7 suggests that it was intended to permit some degree of secrecy of
governmental operations. The ultimate weapon of enforcement available to the
Congress would, of course, be the “power of the purse.” Independent of the
statute here challenged by respondent, Congress could grant standing to
taxpayers or citizens, or both, limited, of course, by the “cases” and
“controversies” provision of Art. III.
Not controlling, but surely not unimportant, are nearly two centuries of
acceptance of a reading of cl. 7 as vesting in Congress plenary power to spell out
the details of precisely when and with what specificity Executive agencies must
report the expenditure of appropriated funds and to exempt certain secret
activities from comprehensive public reporting. See 2 M. Farrand, The Records
of the Federal Convention of 1787, pp. 618-619 (1911); 3 id., at 326-327; 3 J.
Elliot, Debates on the Federal Constitution 462 (1836); D. Miller, Secret Statutes
of the United States 10 (1918).
Several lower court decisions are also instructive here. In Harrington v. Bush,
553 F.2d 190 (D.C. Cir. 1977), a Member of Congress sought declaratory and
injunctive relief to foreclose the CIA from using the funding and reporting provisions
of the 1949 Central Intelligence Act in connection with allegedly illegal activities.
The United States Court of Appeals for the District of Columbia Circuit dismissed
the suit for lack of standing. Plaintiff did not challenge the constitutional sufficiency55
of the funding and reporting provisions. In outlining the statutory and constitutional
framework to set the case in context, the court noted that the funding and reporting
requirements of the CIA Act
... represent an exception to the general method for appropriating and reporting
the expenditure of federal funds. Article I, section 9, clause 7 of the U.S.
Constitution ... is not self-defining and Congress has plenary power to give
meaning to the provision. The Congressionally chosen method of implementing
the requirements of Article I, section 9, clause 7 is to be found in various
statutory provisions....
With respect to the reporting of expenditures, the key statutory provision of
general application is 31 U.S.C. § 1029 which imposes a duty on the Secretary
of the Treasury to provide Congress on an annual basis with “... an accurate,
54 418 U.S. at 179.
55 553 F.2d at 194, 196.
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Since Congressional power is plenary with respect to the definition of the
appropriations process and reporting requirements, the legislature is free to
establish exceptions to this general framework, as has been done with respect to56
the CIA....
In Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980), a private citizen sought
access to CIA documents regarding legal bills and fee arrangements of private
attorneys retained by the Agency through the Freedom of Information Act, 5 U.S.C.
§ 552. The documents were held to be exempt from disclosure under FOIA,
exception 3, which addressed documents specifically exempted by statute. Judge
Gasch found both that the documents were exempted under the protection from
unauthorized disclosure afforded intelligence sources and methods, 50 U.S.C. §
403(d)(3) (1976), and that the information sought was specifically exempted by
Section 6 of the Central Intelligence Act, 50 U.S.C. § 403g (1976).57 The plaintiff
argued that application of these statutes under the FOIA exemption was violative of
the Statement and Account Clause. The appellate court, relying upon United States
v. Richardson, supra, rejected his argument, holding that he lacked standing to
challenge the constitutionality of secret appropriations and expenditures for the CIA.
The court found that the nature of the injury alleged by the plaintiff under FOIA was
undifferentiated and common to all members of the Public and therefore, like the
taxpayer in Richardson, the plaintiff had not shown the “`particular concrete injury’
required for standing.”58
In determining the constitutionality and justiciability of statutory secrecy for
CIA expenditures, the Halperin court reviewed the history of the Statement and
Account Clause. As to the debates in the Virginia ratifying convention in June of
1788, the court opined:
the potential for expenditures being concealed by Congress as confirmation for the
court’s interpretation of the Madison-Mason debate. It observed further:
Viewed as a whole, the debates in the Constitutional Convention and the Virginia
ratifying convention convey a very strong impression that the Framers of the
Statement and Account Clause intended it to allow discretion to Congress and the
President to preserve secrecy for expenditures related to military operations and
foreign negotiations. Opponents of the “from time to time” provision, it is clear,
spoke of precisely this effect from its enactment. We have no record of any
statements from supporters of the Statement and Account Clause indicating an60
intent to require disclosure of such expenditures.
The Halperin court also found confirmation for its conclusion that the Statement
and Account Clause did not require disclosure of the expenditures at issue from the
historical evidence of government practices with regard to disclosure and secrecy
before and after the advent of the Constitution. The Committee of Secret
Correspondence of the Continental Congress was created on November 29, 1775,
Congress resolving to provide for expenses incurred by the Committee in sending out
its “agents”.61 When the Committee received information from Arthur Lee, one of
its agents, regarding French plans to send arms and ammunition to the Continental
Army, it determined to maintain strict secrecy, even from Congress, because of the62
nature and importance of this information. The court notes that the Congress
appears to have exerted greater direct control over the Committee after the
Declaration of Independence.
The camouflaging of the actual recipient and intended use of intelligence funds
also appears to have had early usage under George Washington, commander-in-chief
of the colonial armies, as reflected in a letter to him from Robert Morris, a member
of the Committee of Secret Correspondence, from January 21, 1783. The letter
reflects both the provision of a cash account in anticipation of needs which might
arise for contingencies and secret service. Drafts drawn from that account appear to
have been drawn in favor of member’s of Washington’s family on account of secret
services, seemingly a means of concealing the identity of the actual recipients.63
The court also noted a series of statutes creating contingent funds or secret
service funds giving the President a means of providing secret funding for foreign
59 As the court relied upon Elliot as its source for Patrick Henry’s words, it references a date
of June 15th rather than June 17th of 1788. As noted in fn. 3, above, the correct date appears
to be June 17th.
60 629 F.2d at 156.
61 3 JOURNALS OF THE CONTINENTAL CONGRESS 392 (1905), cited at 629 F.2d at 157.
62 629 F.2d at 157, citing statement of Committee members Benjamin Franklin and Robert
Morris, concurred in by Richard Henry Lee and William Hooper, from II American
Archives, Fifth Series, 818-19 (P.Force, ed. 1851).
63 629 F.2d at 157-58, citing 6 U.S. Department of State, DIPLOMATIC CORRESPONDENCE OF
THE AMERICAN REVOLUTION 428 (F. Wharton, ed. 1889).
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Congress created such a fund, appropriating such monies for “persons to serve the
United States in foreign parts.” In this act, the President was required to provide a
regular statement and account of his expenditures from the fund, but permitted him
to not disclose “such expenditures as he may think it advisable not to specify.”65By
the Act of February 9, 1793, 1 Stat. 299, 300 (1793), Congress re-enacted the 1790
statute, but modified its language to allow the President to make secret expenditures
without specification by making a certificate or by directing the Secretary of State to
make a certificate for the amount.66 It might be noted that although the specific
expenditures from these funds do not appear to have been expected to be disclosed,
the statutes did include aggregate numbers for the appropriations for the funds67
created.
64 629 F.2d at 158-60.
65 1 Stat. at 129.
66 For a more detailed discussion of the statutes and historical precedents upon which the
Halperin court relied, see 629 F.2d at 157-60.
67 While they have not provided additional constitutional analysis, other FOIA cases have
also involved plaintiffs who have sought disclosure of the executive budget request for
intelligence and intelligence-related activities. For example, in Aftergood v. Central
Intelligence Agency, 1999 U.S. Dist. LEXIS 18135 (D.D.C. 1999) (Aftergood I), Steven
Aftergood, on behalf of the Federation of American Scientists, sought disclosure of the
Administration’s total budget request for FY1999 for all intelligence and intelligence-related
activities. The CIA denied this request under exemption 1 (on the grounds that the
information was properly classified in the interest of national defense or foreign policy
under E.O. 12958) and under exemption 3 (on the basis that release of the aggregate figure
would tend to reveal intelligence sources and methods which are expressly exempted from
disclosure by statute).
In its motion for summary judgment, the CIA relied upon statements by from DCI
Tenet, one filed as an unclassified exhibit attached to the motion, and two classified
statements filed under seal and ex parte for in camera review by the district court . In order
to be satisfy the exemption 1 requirements, an agency must show “that the records at issue
logically fall within the exemption, i.e., that an Executive Order authorizes that the
particular information sought be kept secret in the interest of national defense or foreign
policy” and “that [the agency] followed the proper procedures in classifying the
information.” Id. at *3-*4. The court found both of these criteria to be satisfied. In so
doing, the court rejected the Plaintiff’s argument that the DCI’s determination differed from
the President’s and was therefore invalid, based upon a statement three years earlier by a
presidential spokesman that, “as a general matter, the President believed “that disclosure of
the annual amount appropriated for intelligence purposes will not, in itself, harm
intelligence activities.” Id. at *5-*6. The court acknowledged that the President, should he
choose to do so, had the authority to disclose the information sought, but noted that he had
not done so, nor had he ever addressed the impact of disclosure of the 1999 aggregate
intelligence budget request or the amount appropriated for these purposes in FY1999.
Similarly, the court found the fact that the President had permitted release of similar
information in other years unpersuasive. In the absence of the President’s order to release
the information or his withdrawal of the DCI’s authority to make classification decisions,
where there is no indication that the DCI has acted in bad faith in his refusal to release the
information sought, the court found the DCI authorized to make the classification decision
at issue and found that his determination was done properly. Id. at *6.
(continued...)
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67 (...continued)
In its de novo determination as to whether the information was properly classified, the
court applied a deferential standard: “Thus, summary judgment for the government in an
Exemption 1 FOIA action should be granted on the basis of agency affidavits if they simply
contain ‘reasonable specificity’ and if they are not called into question by contradictory
evidence in the record or by evidence of agency bad faith.” Id. at *8. The court found that
DCI Tenet’s declarations satisfied this standard:
... Essentially, DCI Tenet explains that disclosure of the budget request
reasonably could be expected to cause damage to national security in several
ways ...: (1) disclosure “reasonably could be expected to provide foreign
governments with the United States’ own assessment of its intelligence
capabilities and weaknesses,” Tenet Declaration P 14; (2) disclosure “reasonably
could be expected to assist foreign governments in correlating specific spending
figures with particular intelligence programs,” Tenet Declaration P 16; and (3)
official disclosure could be expected to free foreign governments’ limited
collection and analysis resources for other efforts targeted against the United
States, Tenet Declaration, p. 18.
Id. at *9. The court did not require the DCI to demonstrate certainty as to the damage that
disclosure of the requested information would cause to national security. “In the area of
intelligence sources and methods, the D.C. Circuit has ruled that substantial deference is due
to an agency’s determination regarding threats to national security interests because this is
“necessarily a region for forecasts in which the CIA’s informed judgment as to potential
future harm should be respected.” Id. at *10. The investigative zeal of foreign intelligence
agencies was deemed a matter the CIA appropriately could assume.
In concluding that the plaintiff had offered no contrary evidence which undercut the
DCI’s “highly fact-dependent determination,” the Aftergood I court found the 1996 non-
binding recommendations of a congressionally-chartered commission of private citizens
without classification authority (the Brown Commission) made to the Congress and the
President in favor of disclosure did not compel disclosure by the court. In so finding, the
court noted that neither Congress nor the President had acted upon those recommendations.
The court also noted that the Brown Commission did not consider whether it would
recommend disclosure of the 1999 figures under the circumstances which the DCI described
in his unclassified declaration. The court found the fact that the DCI had disclosed
aggregate intelligence budget figures in other years indicative of his careful, case by case
assessment of the impact of each disclosure. “Therefore, the Court must defer to DCI
Tenet’s decision that release of a third consecutive year, amidst the information already
publicly available, provides too much trend information and too great a basis for comparison
and analysis for our adversaries.” Id. at *10-*12.
As to the applicability of FOIA exemption 3 to the requested disclosure, the court
applied a 2 step analysis, looking at whether the statute relied upon was a statute which fell
within the exemption, and whether the withheld material satisfied the criteria of the
exemption statute involved. Id., at *12. See CIA v. Sims, 471 U.S. 159, 167 (1985);
Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990). The court, relying upon Sims, found
it well-settled that the statute relied upon, the 1947 National Security Act’s requirement that
the DCI “protect intelligence sources and methods from unauthorized disclosure,” 50 U.S.C.
§ 403-3(c)(6) (formerly 403-3(c)(d)), was an exemption 3 statute. Id. at *13. The court,
again applying a deferential standard, concluded that the DCI had demonstrated that the
information sought related to intelligence sources and methods. The necessary connection
was found in the “special appropriations process used for intelligence activities.” See
Military Audit Project v. Casey, 656 F.2d 724, 745 (D.C. Cir. 1981). The Aftergood court
(continued...)
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In Aftergood v. Central Intelligence Agency, 355 F. Supp. 2d 557 (D.D.C.
2005), the plaintiff sought historical intelligence budget information for the years
1947 through 1970, as well as subsidiary agency budget totals, from the Central
Intelligence Agency (CIA) under FOIA. The CIA responded that the by asserting that
the information sought was exempt from disclosure under exemption 3, 5 U.S.C. §
552(b)(3), based upon 50 U.S.C. § 403-3(c)(7), which provided that the Director of
Central Intelligence shall “protect intelligence sources and methods.” Both parties
filed for summary judgment.68 The court granted the CIA’s motion and denied Mr.
Aftergood’s motion. The plaintiff argued, in part, that the Statement and Account
Clause required publication of the information he requested. Based upon the
“unequivocal[]” holding of the U.S. Court of Appeals for the D.C. Circuit in
Halperin, which, in turn, relied on Richardson, Judge Urbina rejected plaintiff
Aftergood’s contention and held that “a FOIA plaintiff does not have standing under
the Statement and Account [C]lause to challenge the constitutionality of CIA budget69
secrecy.”
67 (...continued)
relied upon the determination by DCI Tenet that release of the total budget request would
“tend to reveal secret budgeting mechanisms constituting ‘intelligence methods’” to hold
that the disclosure of the aggregate intelligence budget request was exempt from FOIA
disclosure under exemption 3. Aftergood I, supra, at *14-*16. See also, Center for National
Security Studies v. Central Intelligence Agency, 711 F.2d 409, 410-411 (D.C. Cir. 1983)
(holding that the court lacked jurisdiction over an interlocutory appeal of a district court
order granting the CIA’s summary judgment motion on plaintiff’s FOIA request for the
CIA’s 1979 budget for the National Foreign Intelligence Program, holding that it was
exempted under exemption 1).
68 In reaching its 2005 decision, the court relies on an earlier case involving the same
parties, Aftergood v. CIA, 2004 U.S. Dist. LEXIS 27035 at *1, No. 02-1146, slip op. at 4-5
(D.D.C. Sept. 29, 2004), in which the plaintiff sought disclosure, under FOIA, of the
FY2002 aggregate intelligence budget. The court in its 2005 decision states that, in the
2004 decision, it held that 50 U.S.C. § 403-3(c)(7) qualified as a basis for an exemption
under exemption 3, and that intelligence budget information “‘relate[d] to intelligence
methods, namely the allocation, transfer and funding of intelligence programs.’” 355 F.
Supp. 2d at 562 (this purports to quote 2004 U.S. Dist. LEXIS 27035, *4). However, that
phrase does not appear in the cited decision.) In the 2005 case, the court framed the issue
before it as whether the requested intelligence budget information related to intelligence
sources that the DCI had an obligation to protect. 355 F. Supp. 2d at 562. The court relied
upon its 2004 holding to conclude that the intelligence budget information sought related
to intelligence sources and methods. In so doing, Judge Urbina also cited the Acting
Director of Central Intelligence’s declaration that “aggregate intelligence budgets are not
identified ‘to protect the classified intelligence methods used to transfer to and between
intelligence agencies’, and that “the methods of clandestinely providing money to the CIA
and the Intelligence Community for the purpose of carrying out the classified intelligence
activities of the United States are themselves congressionally enabled intelligence methods.”
Id.
69 355 F. Supp. 2d at 562-63:
... Specifically the court [in Halperin v. CIA, 629 F.2d 144, 152 (D.C. Cir.
1980),] concluded that “the injury alleged by the plaintiff [is] undifferentiated
and common to all members of the public” and therefore, the plaintiff “has not
shown the particular concrete injury required for standing.” Id. (internal
(continued...)
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Conclusions Regarding Statement and Account Clause
The Statement and Account Clause appears to impose an affirmative duty upon
the Congress to periodically make a statement and account of its disposition of the
public funds.70 The questions that arose during the debates upon this clause at the
Constitutional Convention and the ratifying conventions went largely to the timing
and scope rather than the fact of that obligation. The debates suggest that at least
some of the delegates to the Constitutional Convention and the participants in the
debates on ratification anticipated that some secrecy might be expected or needed in
dealing with military and foreign affairs, and that the language of the clause might
be broad enough to permit the Congress to determine what expenditures should be
kept secret. Historically, both before and after the Constitution’s advent, some
provision in practice or statute appears to have been made to keep the substance of
some intelligence information or activities closely-held, as well as the nature and
recipients of funds for intelligence activities. The early statutes creating funds for
contingent expenses or secret service do seem to include aggregate figures as to the
money appropriated, but permit circumspection as to the documentation of expenses
from the funds so created.
The judicial interpretation of the statement and account clause appears to lay the
power to define the sweep of the language in the hands of the Congress. The courts
have been consistent in denying standing to those who have sought to challenge the
constitutionality of the funding structure of the Central Intelligence Agency Act of
1949 under the Statement and Account Clause to try to access information not
disclosed because of the strictures of the 1949 Act. The Richardson Court and its
progeny have indicated that the Congress possesses plenary authority to give
substance to the language of the Clause and to require such reporting of expenditures
as it deems in the public interest. The vehicle by which Congress gives substance to
the Clause’s obligations is by statutory mandate. The courts seem to suggest that
secrecy as to some expenditures particularly in the area of foreign or military affairs
appears to have been anticipated in the crafting of the clause and reflected in
contemporaneous practice.
69 (...continued)
quotations omitted).
The plaintiff laments that the Circuit’s holding in Halperin implies that the
CIA never has to report its intelligence expenditures ... What the plaintiff
ignores is that fact that within the same opinion, the court explains that “the
absence of any particular individual or class to litigate these claims gives support
to the argument that the subject matter is committed to the surveillance of
Congress and ultimately to the political process.” Halperin, 629 F.2d at 152
(quoting United States v. Richardson, 418 U.S. 166, 179 ... (1974)).
70 As noted in III J. Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
§ 1342, 213-14 (1970), in his discussion of the purpose of Article I, Section 9, Clause 7:
The object is ... to secure regularity, punctuality, and fidelity, in the
disbursements of the public money.... Congress is made the guardian of this
treasure; and to make their responsibility complete and perfect, a regular account
of the receipts and expenditures is required to be published, that the people may
know, what money is expended, for what purposes, and by what authority.
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created funds for expenditures for foreign intelligence activities, and has permitted
expenditures from those funds to be made by certificate. Many of the statutes do
specify aggregate amounts to be appropriated for the contingent or secret funds in
question, but do not require detailed reporting on the nature of the expenditures
therefrom. The Central Intelligence Agency Act of 1949 permits transfer of funds
for intelligence purposes from funds appropriated for other agencies, thereby
facilitating concealment of the actual intelligence funding levels.
It appears that there was some uncertainty among the Framers of the
Constitution as to the scope of the obligation the clause imposed upon the Congress.
From our review of the constitutional language, its history, and the sparse judicial
interpretation of its import, it seems that the courts regard the Congress as having the
power to define the meaning of the clause. The courts have not had occasion to
address the issue on the merits, and, indeed, might refuse to do so on political
question grounds if the issue were presented; however, the judicial interpretation of
the Statement and Account Clause to date suggests that a court would be unlikely to
find the disclosure of the aggregate intelligence budget constitutionally compelled.
Post-Cold War Developments
The end of the Cold War had a significant effect on intelligence budgets. Since
the country does not face the relentless challenge of an enemy superpower with its
own hostile intelligence services, significant reductions in intelligence spending were
enacted and criticisms of the continued need for budgetary secrecy were raised anew.
Senator Robert Kerrey stated in November 1993: “Openness is the order of the day,
and unless a threat as formidable and as lethal as the old Soviet Union comes along,
our society and Government will steadily become more open. Our task is to make
intelligence more useful to more Americans, not hoard it.”71 Some also maintained
that the alleged failures of intelligence agencies to appreciate the essential fragility
of the Soviet system or to collect intelligence on the Iraqi nuclear capabilities,
warrant a significant overhaul and downsizing of collection and analytical efforts.72
Reductions in defense spending across the board affected intelligence spending
in two ways. First, it was assumed that a smaller military force structure reduced
requirements for intelligence infrastructure; fewer forces would likely require fewer
intelligence support personnel. This argument was countered by some who argued
that leaner force structures actually required stronger intelligence support to ensure
their most effective and efficient use. Secondly, as the bulk of intelligence funding
continued to be “hidden” within the DOD budget, reductions in overall defense
spending required either proportional reductions in intelligence programs or
disproportionate reductions in non-intelligence programs to compensate for
71 Congressional Record, Nov. 10, 1993, p. S15569.
72 Senator DeConcini noted that the intelligence community had failed to analyze the
condition of the Soviet Union: “Maybe they had too much money. Maybe there was a
wrong direction coming from the executive branch. ...” Therefore, “What does Congress
do when some agency does something like that? You start cutting away at their budget, and
rightfully so. That is what we have done.” Congressional Record, Nov. 10, 1993, p.
S15565.
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engendered strong resistance among defense planners already hard pressed to
maintain other priority programs.73 In short, as defense spending contracted, it
became more difficult to launch new intelligence efforts or even to maintain
intelligence programs.
This debate over future requirements for intelligence programs was related to
(albeit not identical with) the continuing controversy over the desirability of public
disclosure of intelligence spending levels. Some opposed to existing or higher levels
of intelligence spending consider that public knowledge of the high costs of
intelligence spending would lead to demands that they be drastically reduced.74
Efforts to reduce funding levels in intelligence authorization bills are complicated by
the question of shared oversight. In 1991, there was concern that reductions in
FY1992 intelligence programs were reallocated to other defense programs rather than
being used to reduce the deficit.75
With the end of the Cold War, the question of the desirability of making public
the extent of the intelligence budget re-emerged in congressional debates and floor
votes for the first time since 1975.76 In the consideration of the FY1992 intelligence
authorization bill, the SSCI reported a bill (S. 1539) that would have mandated
disclosure of three different versions of the total intelligence and intelligence-related
budget figure: the aggregate amount requested by the President; the aggregate amount
authorized to be appropriated by the conference committee on the Intelligence
Authorization Act; and the aggregate amount actually obligated by the executive
branch.77 (The SSCI eschewed publication of the amount appropriated because it
doubted “that such a figure could be tallied ... by the time a conference committee
issued its report, due to the large number of line-items in which the intelligence
73 See Bruce D. Berkowitz and Allan E. Goodman, Strategic Intelligence for American
National Security (Princeton, NJ: Princeton University Press, 1989), p. 142.
74 Senator Metzenbaum noted on November 10, 1993, “The argument that disclosure of the
intelligence budget total would lead to cuts in that budget is . . . interesting. I have to admit
that I think it would do just that. I think the American people would object to spending so
much on intelligence. If the budget figure is more than the American people want spent on
intelligence, then why should we be spending it?” Congressional Record, Nov. 10, 1993,
p. S15555. Representative Sanders, on the other hand, argued for reductions in intelligence
spending without reference to budgetary data, stating during the House debate on August
3, 1993: “My job is not to go through the intelligence budget. I have not even looked at it.
the bill by sequential referral, noted that these requirements represent major
departures from past practices of both Congress and the executive branch that have
“profound implications for the conduct of United States intelligence activities and the
formulation of intelligence policy which have not been considered in detail by all of
the committees of jurisdiction”. The Armed Services Committee proposed that the
effective date of these provisions be postponed until FY1993 to allow for detailed79
consideration. The HPSCI version of the bill (H.R. 2038) had no provision relating
to public disclosure of the intelligence spending. The conference committee “while
agreeing with the objective of the Senate provisions” chose to avoid mandating
disclosure by law and stated its hope that the “[Intelligence] Committees, working
with the President, will, in 1993, be able to make such information available to the
American people, whose tax dollars fund these activities, in a manner that does not80
jeopardize U.S. national security interests.” Section 701 of the final version of the
legislation as enacted (P.L. 102-183) stated:
It is the sense of Congress that, beginning in 1993, and in each year thereafter,
the aggregate amount requested and authorized for, and spent on, intelligence and
intelligence-related activities should be disclosed to the public in an appropriate
manner.
Opposition by the George H.W. Bush Administration may have exerted an
important influence on the dropping of mandatory disclosures. Bush, himself a
former DCI who had argued against public disclosure in 1977,81 stated upon signing
the final version, “Because secrecy is indispensable if intelligence activities are to
succeed, the funding levels authorized by the Act are classified and should remain
so.”82 This was the Administration position, despite the statement by Robert Gates
at his confirmation hearing for the DCI position in September 1991 that “ ... from my
personal perspective — and it’s not ultimately my decision, I suppose, but the
President’s — I don’t have any problem with releasing the top line number of the
Intelligence Community budget. I think we have to think about some other areas as
well. But, as I say, it’s controversial.”83
78 S.Rept. No. 102-117, p. 14.
79 U.S. Congress, Senate, 102nd Cong., 1st sess., Select Committee on Intelligence,
Authorizing Appropriations for Fiscal Year 1992 for the Intelligence Activities of the U.S.
Government, the Intelligence Community Staff, the Central Intelligence Agency Retirement
and Disability System, and for Other Purposes, S.Rept. 102-172, Oct. 3, 1991, p. 2.
80 U.S. Congress, House of Representatives, 102nd Cong., 1st sess., Intelligence Authorization
Act for Fiscal Year 1992, Conference Report, H.Rept. 102-327, Nov. 18, 1991, p. 29. House
Republican conferees did not support the disclosure provision, but no exception was taken
by any Senate conferee.
81 Prepared Statement by George Bush, Former Director of Central Intelligence, printed in
Senate, Whether Disclosure of Funds Authorized for Intelligence Activities is in the Public
Interest, Hearing, pp. 81-82.
82 U.S. Public Papers of the Presidents. George Bush, 1991, II (Washington: Government
Printing Office, 1992), p. 1544.
83 U.S. Congress, Senate, Select Committee on Intelligence, 102nd Cong., 1st sess.,
Nomination of Robert M. Gates, to be Director of Central Intelligence, S.Hrg. 102-799,
(continued...)
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to reorganize the Intelligence Community and held extensive hearings on the
question.84 The Senate version of the FY1993 intelligence authorization bill (S.
2991) included the same “sense of Congress” provision that had previously appeared
in the FY1992 legislation. Although the House version (H.R. 5095) again did not
contain a similar provision, the conference committee included the Senate provision
(as Section 303 in the final version) and there was no dissent among conferees who
“reiterate[d] their hope that the intelligence committees, working with the President,
will, in 1993, be able to make available to the American people, in a manner that
does not jeopardize U.S. national security interests, the total amounts of funding for
intelligence and intelligence-related activities.”85 In the midst of the election
campaign President Bush signed the legislation (P.L. 102-496) on October 24, 1992,
without comment.
With the advent of the Clinton Administration in January 1993, some observers
believed that the question would be revisited with a different conclusion. Senator
Howard Metzenbaum, a member of the SSCI, wrote to the President on February 24,
1993, urging the public disclosure of the intelligence budget. Woolsey, the newly
appointed DCI, testified to HPSCI on March 9, 1993, of his concerns regarding
making the intelligence budget public:
There is no electronic or data fence around the United States or around American
citizens. Disclosing that [intelligence spending levels] and the ensuing debate
publicly means disclosing it to the people overseas who [sic] we target our
intelligence assets on.
My real sense of skepticism about this derives principally from the fact that
coming forth with a single number communicates really nothing until one knows
what goes into the number; and, therefore, proposals either to reduce or to
increase that number would require a public debate. In such a debate, it is
inconceivable to me that we wouldn’t release information and details as the
public and the Congress debated these issues in public and that would be86
damaging.
Clinton himself responded to Metzenbaum on March 27 asking for the opportunity
to “evaluate both the benefits and legitimate concerns which are associated such
public disclosure.”87 The House version of the FY1994 Intelligence Authorization
83 (...continued)
September 16-20, 1991, Vol. 1, p. 509.
84 See archived CRS Issue Brief IB92053, Intelligence Reorganization Proposals, by
Richard A. Best Jr.
85 U.S. Congress, House of Representatives, 102nd Cong., 2nd sess., Intelligence
Authorization Act for Fiscal Year 1993, Conference Report, H.Rept. 102-963, Oct. 1, 1992,
p. 81.
86 U.S. Congress, House of Representatives, 103rd Cong., 1st sess., Permanent Select
Committee on Intelligence, Director Woolsey — Future of the Intelligence Community,
Hearing, Mar. 9, 1993, p. 13; Woolsey repeated his concerns in a MacNeil/Lehrer Newshour
interview on Oct. 19, 1993.
87 Inside the Pentagon, May 6, 1993, p. 15; Senator Metzenbaum provided excerpts from the
(continued...)
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time in three years the Senate version (S. 1301) also lacked such a provision.
According to Senator Arlen Specter, the provision was not included “on the88
expectation that there would be a stronger resolution compelling disclosure.”
On August 4, 1993, the House, considering H.R. 2330 under an open rule,
debated an amendment offered by Representative Barney Frank mandating disclosure
of “the aggregate amounts requested and authorized for, and spent on, intelligence
and intelligence-related activities” beginning in 1995. The amendment failed on a
vote of 169-264. Many of those who voted for the Frank amendment supported other
amendments aimed at reducing the size of the intelligence budget and many
observers hoped or feared, depending on their point of view, that making the budget
public would lead to public demands for spending cuts. This view was not, however,89
universal.
In the Senate an amendment to the FY1994 Defense Appropriation bill (H.R.
3116) was introduced on October 18, 1993, by Senator Daniel P. Moynihan to require
“a separate, unclassified statement of the aggregate amount of budget outlays for the
prior fiscal year for national and tactical intelligence activities. This figure shall
include, without limitation, outlays for activities carried out under the Department
of Defense budget to collect, analyze, produce, disseminate or support the collection
of intelligence.” Although Senator Moynihan, a critic of the Intelligence Community
who had also introduced legislation (S. 1682) to transfer the functions of the CIA to90
the State Department, withdrew the amendment shortly after introducing it, the
proposal drew support from Senator Daniel Inouye, then the Chairman of the91
Appropriations Committee Subcommittee on Defense.
Three weeks later, on November 10, 1993, the Senate debated an amendment
to the FY1994 Intelligence Authorization bill offered by Senator Metzenbaum to
include essentially the same “sense of Congress” language as included in the two
previously enacted intelligence authorization bills. Although the provision had not
been controversial in the Senate on the two earlier occasions, in 1993, the incoming
Republican vice chairman of the SSCI, Senator John Warner, spoke out against the
proposal. After lengthy debate, the Senate first voted not to table the Metzenbaum
amendment by a vote of 49-51 and then voted 52-48 to incorporate it into the
87 (...continued)
exchange in the Congressional Record, Nov. 10, 1994, p. S15554.
88 Congressional Record, Nov. 10, 1993, pp. S15557-15558.
89 See, for instance, the remarks of Representative Skaggs, Congressional Record, Aug. 4,
1993, p. H5777.
95-274, pp. 13-17.
support of Senator DeConcini, the new SSCI chairman.92
The Committee of Conference on the two intelligence authorization bills
subsequently met, but it did not include the provision regarding public disclosure of
the intelligence budget in the final version. The conference report stated: “House
conferees were of the view that, in light of the House vote [on the Frank
amendment], they could not agree to the inclusion in the conference report of the
Senate’s ‘sense of the Congress’ provisions and therefore voted to insist on the93
House position.” Thus, the FY1994 Intelligence Authorization Act (P.L. 103-178)
that was signed by President Clinton on December 3, 1993, did not address the
question of public disclosure of the intelligence budget.
Along with the strong opposition to public disclosure by Senator Warner, the
vice chairman of the SSCI (unlike his predecessor, Senator Frank Murkowski, who
supported disclosure), an important factor was opposition from the Clinton
Administration. During the November 10, 1993, debate, Senator Warner inserted
into the Congressional Record sections of a letter from the Office of Management
and Budget, dated October 18, 1993, that stated, “... the Administration opposes any
change to S. 1301 [the Senate version of the FY1994 intelligence authorization bill]
that would disclose, or require the disclosure of, the aggregate amount of funds
authorized for intelligence activities. The current procedure that provides for the
authorization of appropriations in a classified annex continues to be appropriate.”94
The issue did not disappear. The conference committee had indicated that both
intelligence committees had agreed to hold hearings on the question of disclosure in
early 1994 “in preparation for thoroughly evaluating a provision to require disclosure
of the aggregate intelligence budget figure which may be considered during
preparation of the Intelligence Authorization Act for Fiscal Year 1995.”95 Shortly
after final passage of the FY1994 authorization bill on November 20, 1993, a group
of senior congressional leaders, including Speaker of the House Foley, Senate
Majority Leader Mitchell, and other present and former leaders of committees having
intelligence oversight responsibilities, signed a letter to the President urging a change
in Administration policy to permit public disclosure of intelligence spending. The
Members stated that, “The level of intelligence spending (although not the details)
92 Congressional Record, Nov. 10, 1993, pp. S15553-15570.
93 The conference report continued: “Nevertheless, the House conferees did state their
willingness to entertain bill language expressing the ‘sense of the Senate’ (as opposed to the
‘sense of the Congress’ expressing the views of both Houses) in favor of disclosure of the
aggregate budget figure, but Senate conferees opposed to disclosure prevented agreement
to such modification of the Senate amendment on an evenly divided vote of the Senate
conferees. To resolve the impasse, the Senate conferees ultimately agreed to recede to therdst
position of the House.” U.S. Congress, House of Representatives, 103 Cong., 1 sess.,
Intelligence Authorization Act for Fiscal Year 1994, Conference Report, H.Rept. 103-377,
Nov. 18, 1993, pp. 29-30.
94 Congressional Record, Nov. 18, 1993, p. S15561.
95 H.Rept. 103-377, p. 30.
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that the public be informed.”96
The President, replying in a December 27, 1993 letter to Representative
Glickman, noted his opposition to the proposal in 1993 “because I believed that the
cost of disclosure outweighed the benefits.” He added, however, that he had asked
Anthony Lake, the National Security Adviser, in concert with the DCI and others, to
“look carefully at our position in light of your arguments and in consultation with
Congress.”
By January 1994, both the executive and legislative branches were committed
to review the advisability of making intelligence spending levels public.
Congressional hearings were scheduled for 1994 and an NSC-level review was
underway. At the HPSCI hearings conducted on February 22-23, 1994, DCI Woolsey
repeated his opposition to budgetary disclosure. He emphasized the difficulty of
conducting a debate on intelligence programs and priorities in public and his concern
that it would be impossible to avoid moving from one aggregate number to
disaggregated details that would educate “the rulers of North Korea, Iran, Iraq, Libya,
terrorist groups, and others about our plans and programs.”97
The 1994-1995 debate took place in the context of declining budgets and an
intelligence community grappling with a world that, in the oft-quoted phrase used by
DCI Woolsey in his confirmation hearings, has seen the slaying of the Soviet dragon,
but still contained jungles “filled with a bewildering variety of poisonous snakes.”
Nevertheless, on July 19, 1994, the House voted (in the Committee of the Whole)
194-221-24 to reject an amendment to the intelligence authorization bill (H.R. 4299)
1993, p. A20.
activities. The subsequent Conference Committee acceded to the House and dropped
the provision.
On July 9, 1997 the House voted 192-237-5 (in the Committee of the Whole)
to reject an amendment to the FY1998 Intelligence Authorization bill (H.R. 1775)
offered by Representatives Conyers that would require the President to submit a
separate, unclassified statement of the appropriations and proposed appropriations
for the current fiscal year, and the amount of appropriations requested for the fiscal
year for which the budget is submitted for national and tactical intelligence activities.
The Senate voted shortly thereafter, on June 19, 1997, 43-56-1, to reject an
amendment to the FY1998 intelligence authorization bill (S. 858) proposed by
Senator Torricelli to require the President to submit annual aggregate figures on
amounts requested and amounts appropriated for intelligence and intelligence-related
activities.
Despite these congressional votes interest in and pressure for public release of
intelligence spending levels persisted. The Commission on the Roles and
Capabilities of the U.S. Intelligence Community, known as the Aspin-Brown
Commission, established pursuant to the FY1995 Intelligence Authorization Act
(P.L. 103-359), recommended in 1996:
... that at the beginning of each congressional budget cycle, the President or a
designee disclose the total amount of money appropriated for intelligence
activities for the current fiscal year (to include NFIP, JMIP, and TIARA) and the
total amount being requested for the next fiscal year. Such disclosures could
either be made as part of the President’s annual budget submission or, separately,
in unclassified letters to the congressional intelligence committees. No further98
disclosures should be authorized.
Responding to the Commission’s recommendations, on April 23, 1996 President
Clinton authorized Congress to make public the total appropriation for intelligence
at the time the appropriations conference report was approved.99 Such action was
not, however, taken by the Legislative Branch.
In October 1997, DCI Tenet announced that President Clinton had authorized
him to release the aggregate amount appropriated for intelligence and intelligence-
related activities for FY1997 ($26.6 billion). His press release indicated that the
decision was based on two important points:
First, disclosure of future aggregate figures will be considered only after
determining whether such disclosures could cause harm to the national security
by showing trends over time.
98 Commission on the Roles and Capabilities of the United States Intelligence Community,
Preparing for the 21st Century: An Appraisal of U.S. Intelligence, Mar. 1, 1996, p. 142. It
is noteworthy that the Commission included several Members of Congress, including
Representatives Goss and Dicks both of whom served on the House Intelligence Committee.
99 Walter Pincus, “Clinton Approves Disclosure of Intelligence Budget Figure,” Washington
Post, Apr. 24, 1996, p. A19.
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information concerning the intelligence budget: whether the information
concerns particular intelligence agencies or particular intelligence programs. In
other words, the Administration intends to draw a firm line at this top-line,
aggregate figure. Beyond this figure, there will be no other disclosures of
currently classified budget information because such disclosures could harm100
national security.
The press release took note of the lawsuit filed earlier under the Freedom of
Information Act and indicated that the President had preferred to take action
concerning the declassification of the intelligence budget “in concert with the
Congress,” but “the present circumstances related to this lawsuit do not allow for
joint action.”101
The following March, Tenet announced that the aggregate amount appropriated
for intelligence and intelligence-related activities for FY1998 was $26.7 billion. In
the announcement Tenet stated that the determination that “this release will not harm
national security or otherwise harm intelligence sources and methods.”102
The release of the figure for FY1998 was, however, the final such release. After
litigants had sought to require the release of the amount requested for intelligence (in
addition to the amount appropriated which had been made public), Tenet declined to
make public the amount appropriated for FY1999.103 Some observers speculate
Tenet may have been reluctant to address the substantial additional intelligence funds
that were reportedly incorporated in the Supplemental Appropriation Act (P.L. 105-
277), enacted on October 21, 1998. In any event, no such releases have been made
subsequently.
Recommendations by the 9/11 Commission and Subsequent
Legislation
The attacks of September 11, 2001, had a profound affect on intelligence issues.
No longer was there a concern to reduce intelligence spending; the goal was to
determine why there had been no tactical warning of the attacks that shattered
thousands of American lives. A series of investigations was launched to fix the
blame and to make recommendations for improved intelligence performance. There
was a clear disposition in the Executive Branch and in Congress to increase
intelligence spending significantly in support of the counterterrorism effort. Many
of the recommendations for intelligence reorganization lie beyond the scope of this
Report, but some addressed issues of intelligence acquisition and budgeting.
100 Central Intelligence Agency, Press Release No. 13-97, Statement of the Director of
Central Intelligence Regarding the Disclosure of the Aggregate Intelligence Budget for
Fiscal Year 1997, Oct. 15, 1997.
101 Ibid.
102 Central Intelligence Agency, Press Release No. 03-98, Statement by the Director of
Central Intelligence Regarding the Disclosure of the Aggregate Intelligence Budget for
Fiscal Year 1998, Mar. 20, 1998.
103 Vernon Loeb, “CIA Won’t Disclose Total Intelligence Appropriation for Fiscal Year,”
Washington Post, Dec. 25, 1998, p. A10. See the discussion earlier in this Report, pp. 28-
31.
established. The DNI has been given statutory authorities for developing and
determining the national intelligence budget and for ensuring the effective execution104
of the budget for intelligence and intelligence-related activities.
In addition, the National Commission on Terrorist Attacks Upon the United
States, known as the 9/11 Commission, recommended that the “overall amounts of
money being appropriated for national intelligence and to its component agencies
should no longer be kept secret.”105 This would be different from the Clinton
Administration’s practice in FY1997 and FY1998 when the total appropriated
amount for all intelligence and intelligence-related activities was released.
The Senate bill introduced in response to the recommendations of the 9/11
Commission (S. 2845) provided that the NFIP would be renamed the National
Intelligence Program (NIP) and that the President disclose for each fiscal year the
aggregate amount of appropriations requested for the NIP. Furthermore, Congress
would be required to make public the aggregate amounts authorized and appropriated
for the NIP. (The House bill dealing with intelligence reorganization (H.R. 10)
contained no similar provision.) An amendment to remove this provision in the
Senate bill was tabled on October 4, 2004 by a vote of 55 to 37.
Ultimately, the legislation that was enacted largely in response to the
recommendations of the 9/11 Commission, the Intelligence Reform and Terrorism
Prevention Act of 2004, P.L. 108-458, did not include the Senate’s provision to make
intelligence spending figures public.
The issue resurfaced in 2006 when the Senate Intelligence Committee reported
its version of authorization legislation for FY2007, S. 3237. Section 107 of the bill
would require that the President disclose to the public the aggregate amount of
appropriations requested annually for the NIP. The bill would further require that
Congress make public the aggregate amount authorized and appropriated by
Congress on an annual basis which would presumably include funds provided by
supplemental appropriations bills. The bill further mandates a study by the DNI of
the advisability of making such information public for each of the 16 elements of the
Intelligence Community. No similar provision exists in the House version of
FY2007 intelligence authorization legislation (H.R. 5020). An identical provision
was included in the FY2007 intelligence authorization bill (S. 372) reported in the
Senate in January 2007.
In approaching the provision in S. 3237, Congress will likely weigh a number
of factors. Some Members believe that not only the spirit of constitutional provisions
but also the interests of democracy have always required that intelligence budgets be
identified. Even some of those who believed that Cold War conditions necessitated
that intelligence budgets be kept secret now argue that conditions have changed and
that current enemies would not be able to make use of information on overall levels
of intelligence budgets. This view is opposed by others, especially in the House, who
believe that the declassification of the intelligence budget could inevitably lead to the
compromise of important information on sources and methods.
104 50 U.S.C. 403-1(c)(1)(B); 50 U.S.C. 403-1(c)(4).
105 9/11 Commission, p. 416.
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consideration. First, making the NIP public might lead to the need for a separate
intelligence appropriations bill. This, in turn, could prevent the possibility of easy
trade-offs between intelligence and non-intelligence defense programs, arguably to
the detriment of the intelligence effort. Second, is the fact that actions taken in
regard to national intelligence efforts in supplemental appropriations bills would have
to be reflected in accounts of intelligence spending arguably with more public
justification than would be desirable in some circumstances.
In addition, providing information on the NIP but not the MIP could give a false
sense of the dimensions of the intelligence effort. Most observers argue that in
operational terms, intelligence and intelligence-related activities are mutually
supportive, even intertwined, and that considering them separately does not permit
an understanding of intelligence capabilities. This could affect both those who want
to reduce intelligence spending across the board as well as those who argue that
intelligence spending has not kept up with the growth of the threats facing the
country. If the intelligence-related activities were to be included, as was the case
when FY1997 and 1998 budget levels were made public by DCI Tenet, there would
have to be a recognition of the subtle and porous dividing lines between intelligence-
related activities and other targeting and information-gathering and processing
efforts. It would be possible to play “budget games” to demonstrate greater or lesser
levels of commitment to intelligence by moving individual programs into or out of
intelligence-related categories.
Conclusion
After decades of debate, the issues surrounding the question of public disclosure
of the intelligence budget have not changed. There is a question of the degree to
which the Constitution requires such budgetary information to be made public.
Another question centers on whether limited budgetary data can be made public
without leading to detailed revelations of properly classified programs and whether
information might be made available to adversaries who will use it against the U.S.
Beyond these questions, there is an issue of how to frame an informed public
debate on the extent of intelligence spending. How do you provide a sense of how
the complex and disparate U.S. Intelligence Community fits together without
revealing the extensive detail that almost all observers would consider unwise. Even
sophisticated outside analysts are unlikely to appreciate some of the finer (and, in
some cases, arbitrary) distinctions among military and national programs and the
relationship of non-intelligence communications and reconnaissance programs to the
overall intelligence effort. Funding for intelligence-related activities presents special
difficulties; budgetary totals can fluctuate from year to year solely because certain
DOD programs are transferred into or out of intelligence accounts. Making public
only the figure for national intelligence programs would simplify the task, but would
not give the public an accurate understanding of the extent of the whole intelligence
effort.
There will continue to be philosophical and political disagreements concerning
how much, if any, information regarding the intelligence budget should be provided.
The disagreements may in some cases mask policy objectives. Some argue for as
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its reduction in order to transfer funds to what they consider more important
governmental functions or to reduce the federal deficit. Others will seek to show
bare-bones intelligence spending and urge more rather than less intelligence spending
to cope with the uncertainties of the current international environment.
Ultimately, the fundamental issue is whether adequate resources are being
devoted to intelligence given the extent of requirements by policymakers, military
commanders, and other government officials. The more immediate issue for
Congress is how to ensure that there is enough information available to inform this
public debate without placing intelligence sources and methods at risk.
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