THE OPERATIONAL FILES EXEMPTION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00901R000600200021-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 19, 2016
• Document Release Date: November 27, 2006
• Sequence Number: 21
• Publication Date: September 24, 1983
• Content Type: NSPR

Approved
ARTICLE APPEARED
ON PAGE
Z
W A C..I.A.-A.C.L.U. DEAL?
NATION
21+ September 1983
The OperatioinLl
Files Exeniption
ANGUS MACKENZIE
The American Civil Liberties Union, the Central In-
telligence Agency and Senate Intelligence Commit-
tee chairman Barry Goldwater have become
strange bedfellows in the, latest effort to exempt
the agency from the Freedom of Information Act-Senate
bill 1324. Although the A.C.L.U., the C.I.A. and the sena-
tors will be nit-picking over the language of the bill dur-
ing the markup sessions, which begin in the corning weeks,
they have already agreed on its key provision, which ex-
empts the agency's "operational files" from F.O.I.A.
search and disclosure requirements.
S. 1324 is a revision of a bill proposed in 1979 by
then-C.I.A. Deputy Director Frank C. Carlucci, which the
A.C.L.U. opposed at the time. The new version was drawn
up by the C.I.A.'s legal representatives in cooperation with
Senator Goldwater. It was introduced in Congress after
the A.C.L.U. informally agreed to the operational-files
exemption.
The A.C.L.U. and the C.I.A. claim that the exemption
would not expand the C.I.A.'s authority to withhold docu-
ments. Under the F.O.I.A., the agency may deny requests
for information, that relates to national security matters or that
reveals confidential sources and investigative techniques.
They contend that since operational files invariably con-
tain such information, they are never released. Freeing the
agency of the requirement that it conduct time-consuming
searches of files that are never released, proponents say,
would enable it to process other F.O.I.A. requests more
expeditiously.
Critics of the proposed legislation counter th&t the term
"operational files" is so broadly defined that it will amount
to a total exemption from the F.O.I.A., permitting the
agency to cover up illegal domestic spying and other wrong-
doing. Many information act experts say the C.I.A. has
taken the A.C.L.U. for a ride.
The deal between the C.I.A. and the A.C.L.U. was in-
itially discussed in informal conversations between the
agency's Deputy Counsel, Ernest Mayerfeld, and A.C.L.U.
attorney Mark H. Lynch, who have been friendly enemies
in F.O.I.A. court battles for seven years. As Lynch put
it, We're two guys who've spent a lot of time in court
together shooti
get off the rota
something out.
The basic clc
for the C.I.A.'
emption thing"
requests, the
operational file
Would the S
C.I.A. wrongd
On June 21, C
told the Senate
will not ever again be a repeat. of the- improprieties of the
past," he said. "And let me assure you that Bill Casey and I
contidcr it our paramount responsibility that the rules and
regulations not be violated."
Leaving aside the C.I.A.'s assurances that it will speed up
the release of information, what does the bill itself say? The
heart of the proposed legislation is the definition of "opera-
tional files." The agency and the A.C.L.U. agree that if the
bill is passed, such files will no longer be subject to the
search process-that they will be, in short, exempt from the
F.O.I.A. But they disagree substantially over just what
operational files are.
Mayerfeld told me that operational files deal with for-
eign intelligence, counterintelligence and counterterrorism
operations; investigations to determine the suitability of
potential foreign intelligence sources; "security liaison ar-
rangements" with other intelligence agencies; and infor-
mation exchanges with foreign governments. Mayerfeld's
definition covers most of the agency's business, except-
perhaps-intelligence reports derived from operational
files. I say "perhaps" because some critics of the bill be-
lieve that even those reports could be exempt under the
proposed legislation.
Let us examine some of Mayerfeld's categories. Take
"counterintelligence operations," for example. Those
operations include C.I.A. domestic spying, which President
Reagan authorized in his executive order of December 4, 1981.
If the Senate bill is passed, files on domestic spying could
presumably be exempt from F..O.I.A. inquiries.
Files relating to past counterintelligence operations like
Operation Chaos, which spied on the antiwar and civil
rights movements and the underground press between 1967
and 1974, might also be exempt. Some of the activities car-
ried out under Operation Chaos were revealed in 1976 by
Senator Frank Church's Select Committee on Intelligence.
And stories about the operation based on information ob-
tained under the F.O.I.A. have appeared in the press. But
the complete account has not emerged, and a C.I.A. source
told my attorney that the agency has two roomfuls of un-
released Chaos files.
A ngus Mackenzie is an associate of the Center for In- Opinion is divided on whether that material would be ex-
vestigative Reporting, where he directs the Freedom of Infor- empt under the Senate bill. Lynch told me the documents
STAT
For Release 2006/11/27: CIA-RDP91-00901
v. u ... .,..b. .~.,........ ... ~~uF,QUVtt nuu 4UC J-1 JU C VC1JIU13 U1
Approved For Release 2006/11/27: CIA-RDP91-00901 R000600200021-0 ?~'
 ARTICLE
ON PAGE
tins Vin/. a,.
By ROBERT PEAR
WAS`H'INGTON -- In the spring, when it looked'
as if the Central Intelligence Agency and the
American Civil Liberties Union might agree on
amendme to the Freedom.of Information Act,
many people saw a case of curious bedfellows. .
It was a surprise to seethe agency abandon its
drive for complete exemption from the disclo-
sure .law. It was perhaps even more remarkable
to see the civil liberties union willing to consider
a new exception to a law that the A.C.L.U. itself
describes as "one of the most important pieces of
legislation ever enacted by Congress,"
Ba
rry
Under the proposal, offered by Senator
Goldwater,:Republican of Arizooaa, the agency+?'s
"operational ales, which show bow it gathers
intelligence, -would be exempt from disclosure,
and the agency would, not have to search such-
Wes in response to Freedom of -Information re-
guests.. Butu=1asdfied politic ; eo comic acid=
scientific intelligence would stillbe accessible to
the public and citizens could still tap agency files
to obtain information about themselves. i
The C.11A. helped draft the bill. John N. .
McMahon; Deputy Director of Central. Intelli=
Bence, promised that if the operational' files were
exe4npt from search and ,review,'- the PnfbUc
would receive improved service from the agency
under the :Freedom of ltrformation'Actwvithout
any meaningful loss of information :raw` re
leased. He said ? be, "hoped" tire- agency could
substantially -reduce the two-to three-yea 1 Wait
that requesters must now endure; _
So tar as can be ascertained; both the agency
and the civil liberties union entered negotiations
in good faith. Senator Joseph R_Biden Jr., Demo-
"spirit of moderation and compromise." But as
Government officials, lawyers; historians and
journalists dissected the bill during two days of .
hearings before the Senate Select Committee on
Intelligence in June' it became evident that
many features of the bill needed to be clarified or
refined. Mark H. Lynch of the A.C.L.U. said his
organization would. support the. bill only if such
questions were resolved.
Allan Adler, a lawyer at the A.C.L.U., insisted
that his group had made "no deal" with the
G.I.A. "We are regarded as a,leading watchdog
in the area of Freedom of information," he said,
"so some people may have been surprised that
we didn't ref lexivelviloppose the bill." But, he
l
I
fo
ded
.,.... _p----
-
IF,
s --
John N. Mcf+iahan ad
agency to have a long backlog of Freedom of in- Continued
Approved For Release 2006/11/27: CIA- T 91-9O901R
Questions Remain Over judicial Review o
Approved For Release 2006/11/27: CIA-RDP91-00901 R000600200021-0
 3 Approved For Release 2006/11/27: C i DP91-00901 R00 }600200021-0
ARTICLE APPJAR.
ON PAGE
analysts Suspect
Ali Adentu"i cation
fed to the Attach
By Michael Getler
Washington PostStaff Writer
Still-secret tape recordings' made by Japanese elec.
tronic listening posts of communications. between a.So-
viet fighter. pilot and his military ground controllers sug-
-gest to some American analysts that the pilot may have
mis-identified the South Korean airliner that U.S. off-
cials say he shot. down from behind with a beat-seeking
missile
Two informed U.S. government sources-said yesterday,
that throughout the crucial part of the communications
that the Japanese were able to monitor-which covers
about a half hour of the 2 t/z hours that the Soviets were
tracking the Korean.Air Lines.plane=the Soviet'fighter
pilot never referred to the plane as an airliner but only as
"the target."
Speculation among U.S. officials is-that Soviet pilots;
in the early -!Horning darkness near the Soviet island of
Sakhalin, may have thought the big Boeing 747'.airliner
was an RC165 U.S. Air Force reconnaissance plane, a
.military version of the smaller and older 707 airliner.
One senior U.S. official said that, based on the avail-
able information, the Soviets are guilty of either "enor-
mous callousness" in shooting down a plane they knew to
be an airliner yet talked of only as a "target;' or:."incred-
ible incompetence" in failing to identify properly a 747
jumbo jet of unique size and shape and marked with Ko-
rean Air Lines lettering.
Secretary of State George P. Shultz, who yesterday
accused the Soviet Union of a "brazen and elaborate"-
attempt to cover up "the truth that they shot down an
unarmed civilian airliner," said earlier that "a Soviet pilot
reported visual contact with the aircraft."
Shultz and White House spokesman Larry' Speakes
branded as untrue new Soviet claims that Soviet fighters
had tried to warn the airliner's pilot that he was flying in
Soviet airspace and that he had done so intentionally as
part of an intelligence-gathering operation.
Sources said yesterday that top U.S. officials antici-
pated that, the Soviets would claim the airliner was on a
spy mission and that President Reagan's national secu-
rity affairs adviser, William P. Clark, asked the deputy
director of the CIA, John N. McMahon, to check wheth-
er there were any grounds for such a charge. The CIA
assured the White House that there were none, the
sources said.
1%'ASHINGTON POST
3 September 1983
One senior official, con irming
that analysts thought. there was a
possibility that, the Soviets had mis-
identified the South Korean airliner,.
cautioned that the U.S. intelligence
community, working from the trans.
lated Japanese tapes, does not have
transcripts of the Soviet air-to-
ground communications for the en
tire time that The passenger plane .
strayed over Soviet territory.
Nor - are recordings available of
communications ,with all. eight of the
Soviet jets tlikShultz, said were-sent.
into the air` tointercept.the airliner
at one time -or another during that
period
,He said it was; possible that. t he
pilot had told' his commanders on
the ground at some other point that.
the intruder was an airliner. But at
this time,;the-source.said, indications
are that the plane was not identified
properly by the fighter pilot.
Another senior administration of-
ficial said that the statement yester-
day by the Soviet -news agency Tass
made clear . that "Moscow's 'propa-
ga'nda line for trying to wiggle out of
this de'spicable.act".of shooting down
a South Korean jetliner with .269'
persons aboard is to try to portray
the plane as on a spy mission.
Speakes described such claims as
"without foundation" as far as the
United States was concerned. He
added that. the South Koreans "were
not using .that aircraft. for any intel-
ligence-gathering" of their own.
U.S. officials said there are clearly
much better ways, such 'as Vvitli sat-
ellites and radar, to gather intelli-
gence data than to send a passenger
airliner of another country on a sui-
cidal mission.
The Soviet statement yesterday
and the response by Shultz and
Speakes highlighted many unan-
swered questions about an episode
that has shocked and outraged peo-
ple around the world.
. Approved For Release 2006/11/27: CIA-RDP91-00901 R000600200021-0
 Approved For Release 2006/11/27: CIA-Rb1-00901 R
APTICLE APPEARED NEW YORK TIMES
ON P SE 1q_1
31 August 1983
Larry Speakes, the White House
r A 1, Q ? ? spokesman, talking to reporters in
~%0 S c.t tS~~ Santa Barbara, Calif., where Mr. Rea-
gan is on vacation, seemed to be oppos-
j ing invoking the war powers provision
Questions Raised on Marine Role when he said the fighting was "an iso-
lated incident."
By BERNARD GWERTZMAN
Special to Tiro New York Times
WASHINGTON, Aug. 30 - Reagan
Administration officials said today that
the intensified attacks on Marine posi-
tions in Beirut had caught them by sur-
prise and had raised new questions
about the role of American forces in
Lebapon.
Despite growing pressure from Con-
gress for the President to invoke spe-
cial provisions of the War Powers
Resolution because of the fighting,
President Reagan this afternoon re-
fused to acknowledge any basic change
in the situation.
The White House made public a let-
ter from Mr. Reagan to Congress as-
serting that a truce had been achieved
and "diplomatic efforts were under
way to extend the cease-fire." He said
be was keeping Congress abreast of the
situation but declined to invoke that
portion of the War Powers Resolution
that would force him to withdraw the
marines after 90 days unless Congress
voted its approval of keeping them
there.
t Beirut Quieter at Night
operations, then it would be different,"
he said. "But we're not. The role there
is as a peacekeeping force."
Mr. Reagan remained at his moun-
tain ranch near Santa Barbara, relax-
ing, Mr. Speakes said. He spoke for
about 10 minutes over the phone with
William P. Clark, the national security
adviser, and Edwin Meese 3d, the
White House counselor, both of whom
were at _the Biltmore Hotel in Santa
Barbara with other White House staff
"I believe that the continued pres- . I members. em Bush told Mr M h
more quiet in Beirut."
Because of the attacks on American
positions throughout the Beirut area,
Vice President Bush convened a crisis-
management group for the second day.
ence of these U.S. forces in Lebanon is ! voking the crisis grope known for-
essential to the objective of helping to': mally as the Special Situation Group.
restore the territorial integrity, sover- 1i Others included in it were Secretary of
eignty and political independence of State George P. Shultz, Mr. Weinber-
Lebanon," he said. "It is still not possi- ger, Deputy Director John McMahon of
ble to predict the duration of the pres- the Central Intelligence Agency and
ence of these forces in Lebanon. We Gen. John W. Vessey Jr., chairman of
will continue to assess this question in the Joint Chiefs of Staff. This group, ac.
the light of progress toward this object cording to an aide, has been gathering
tive." information about events in the Middle
East and has been making recommen-
But the State Department, in a report dations, generally forwarded by Mr.
issued at 6 P.M. today, was less catego- Bush to the President by telephone.
rical about a cease-fire. It said only
that as of 4:30, P.M. (10:30 P.M., Beirut
time) "the situation was becoming
Approved For Release 2006/11/27: CIA-RDP91-00901 R000600200021-0
 Approved For Release 2006/11/27: CIA-RDP91-00901 R000
q?; .^:r :".'--` 1 WASHINGTON POST 4- 17-
16 July 1983
CIA Lawyer Finds ,
No Casey Conflict.
United Press International
CIA Director William J. Casey had no conflict
of interest between his extensive stock dealings
and his secret information about world economic
affairs, the agencys -deputy-