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The CIA as an Administrative Agency

By Paul Wolf, December 7, 2004

Introduction

Shrouded in mystery, the U.S. Central Intelligence Agency ("CIA") has inspired undying loyalty, utter revulsion, and conspiracy theories in like measure. Unmasked, the CIA turns out to be nothing more than another administrative agency of the Executive department. When the curtains are pulled on this great Wizard of Oz, adventurers to the mystical realm find themselves face to face with the most mundane of all possible worlds -- a federal bureaucracy governed largely by, in theory at least, the ubiquitous Administrative Procedure Act ("APA").1 Whatever reorganizations may occur in the continuing fallout from 9/11, the new arrangement will fit somehow into the framework established by the APA, and any new enabling acts will be based on those enacted in the late 1940s.

Origins of the CIA

The CIA's predecessor, the Office of Strategic Services ("OSS"),2 had come into being as a response to the "fifth column" operations of the Nazis in Europe and the Balkans. Five months before the attack on Pearl Harbor, President Roosevelt appointed a Wall Street lawyer, William "Wild Bill" Donovan, as his Coordinator Of Information ("COI"). Donovan's task was to collect and analyze information from the military intelligence branches, the Federal Bureau of Investigation, and other agencies, and to brief the President on the war in Europe. The COI also produced propaganda for overseas consumption through its Foreign Information Service ("FIS"). By the time the Japanese attacked Pearl Harbor on Dec. 7, 1941, Donovan had already built up a staff of 600 analysts and propaganda writers.

Six months later, the COI was reorganized. The FIS became the Office of War Information ("OWI"), and Donovan's new organization, the OSS, was left with analysis and whatever other "special activities" the President might require. As the war progressed, these special activities, including sabotage, guerrilla warfare, espionage, and morale operations (psychological warfare directed against enemy and occupied populations) came to dominate the work of the OSS, although the analytical capability of its Research and Analysis Branch, filled with hastily-recruited university academics, was also central to the war effort.

Many of the special activities of the OSS were copied from those used by the Nazis. Donovan's belief in the value of psychological warfare, which to him was a weapon in the military's arsenal as powerful as any other, was based on the Nazis' use of the same techniques. It also reflected advances in the field of psychology at the time. Sabotage of industrial production was considered key to the war effort; the Germans and British mercilessly bombed each other's cities. In fact, the espionage components of OSS were created for the express purpose of obtaining information to facilitate sabotage operations. Irregular "guerrilla" forces, disdained in American military tradition, were organized in occupied countries. Donovan had also studied the black arts of the Political Warfare Executive in Britain.

At the end of the war, in September of 1945, President Harry Truman disbanded the OSS by exectutive order.3 Nine hundred OSS analysts were transferred to the State Department. The Secret Intelligence (espionage) and Special Operations (sabotage) branches of the OSS were transferred to the War Department. For the next two years, America was left without a central intelligence agency.

The reasons for disbanding the OSS, only to recreate it in another form two years later, were not entirely logical. President Truman was personally opposed to the creation of an "American Gestapo."4 Pressure from the State Department Bureau of the Budget was also a factor in the sudden death of the OSS.5 Yet two years later, the CIA was created with virtually the same mission as the OSS, from a nucleus of OSS veterans. It is noteworthy that there was no role in the new CIA for General Donovan, who had created and led the OSS.

In October of 1944, a year before the OSS was disbanded, General Donovan had proposed a central Foreign Intelligence Service to serve the peacetime needs of the "diplomatic, military, economic, and propaganda services of the Government."6 Donovan had proposed an agency structured like the OSS; led by a Presidentially-appointed Director, and administered under Presidential direction, with the "advice and assistance of a board on which the Department of State and the Armed Services should be represented."7 Donovan's plan was quite simple, and somewhat naive: "It is not necessary to create a new agency. The nucleus of such an organization already exists in the Office of Strategic Services," he wrote.8 Donovan's plan was submitted to the President, who, after making some revisions, circulated it among the various Cabinet officials and the Joint Chiefs of Staff.9

The Joint Chiefs then submitted their own proposal, recommending instead that a committee called the National Intelligence Authority ("NIA") be created, composed of the Secretaries of State, War, and Navy, and a representative of the Joint Chiefs of Staff.10 The Joint Chiefs felt that Donovan's plan would over-centralize the national intelligence apparatus and deprive the affected departments of the autonomy they needed to conduct their work. The Joint Chiefs further recommended the creation of a Central Intelligence Agency with a Director appointed by the President -- but this Director would ultimately be responsible to the NIA. The Secretaries of War and of the Navy concurred, naturally favoring their own autonomy.11

The Secretary of State submitted his own proposal for the creation of an "inter-departmental group, which would formulate plans for (the President's) approval."12 The State Deparment plan included a National Intelligence Authority chaired by the Secretary of State, and including the Secretaries of War and the Navy .13 The State Department plan was pure management by committee. Under it, if the NIA determined that a centralized intelligence operation was needed, it would appoint an executive to oversee the operation. Operational support would be provided by the departments and agencies participating in the operation, in proportions agreed by them and approved by the NIA, based upon the relative responsibilities and capabilities of the participating departments and agencies.14

Donovan's plan for a Presidentially-controlled intelligence service like the OSS had no supporters. So, a Presidential Directive, dated Jan. 22, 1946, established a National Intelligence Authority, a Central Intelligence Group, and the position of Director of Central Intelligence ("DCI").15 The Central Intelligence Group was to function as the secretariat, or administrative department, for the NIA and DCI.16 The plan was nearly identical to the one submitted by the Joint Chiefs of Staff, with one major difference -- the National Intelligence Authority would not have an independent budget.17 Funding for the National Intelligence Authority would be provided by the participating departments, and the Director of Central Intelligence would have no other source of funding. Although the new DCI would have limited resources, this was the first time in U.S. history that a permanent, "central" intelligence service would operate during peacetime.

The Central Intelligence Agency was created on July 26, 1947 through the enactment of the National Security Act,18 which also created the Department of Defense and the National Security Council. Congress' intent in passing this legislation was "to provide a comprehensive program for the future security of the United States; to provide for the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security" and to provide for the organization of the military services under the Secretary of Defense.19

The creation of the CIA was part of a larger reorganization of the military services, and its addition to this bill was highly controversial, following the abolishment of OSS just two years before. As a result, the National Security Act contained only an outline of the CIA's organization and functions, leaving many of the administrative details unresolved until the passage of the Central Intelligence Agency Act of 1949.20 Debate over the National Security Act occurred in secret, closed door sessions.21 It was argued in Congress that America needed a powerful peace time intelligence agency to "prevent another Pearl Harbor" and counter the threat of "atomic war" with the Soviet Union.22

When the CIA was created in 1947, it was given its own budget, and its Director -- also the Director of Central Intelligence -- was granted the authority to hire personnel directly. With regard to national security, the CIA was given a mandate to advise the National Security Council, to correlate and evaluate intelligence and to disseminate its analyses throughout the governmnent.23 It was also empowed to produce intelligence related to counterintelligence, counter-narcotics, "special activities" (ie., covert operations), research, military intelligence, and others areas designated by the National Security Council from time to time.24 The CIA had no police, subpeona, or law enforcement or security powers or internal security functions.25 This statutory mandate was general, although limited geographically.

In addition to these two enabling acts, the workings of the CIA, and fourteen other agencies of the so-called "intelligence community"26 are governed by Executive Order 12333.27 This order defines the goals and responsibilities of the intelligence community, of the National Security Council, and of the National Foreign Intelligence Advisory Groups associated with the intelligence community agencies.28 The executive order also sets guidelines for the conduct of intelligence activities,29 includng bans on human experimentation30 and assassination,31 and requires the agencies to cooperate with Congressional oversight of their "special activities."32

Today, the CIA still plays a coordinating role in a decentralized intelligence community. The Director of Central Intelligence, appointed by the President with the advice and consent of the Senate, is also the head of the intelligence community and the principal advisor to the President for intelligence matters related to national security.33 There is also a Deputy Director of Central Intelligence, also appointed by the President with the advice and consent of the Senate, and a Deputy Director of Central Intelligence for Community Management, who is appointed by the President.34 Below the Deputy Director for Community Management are three Assistant Directors responsible for Collection, Analysis and Production, and Administration, respectively.35 The Office of the Director of Central Intelligence includes these individuals as well as a National Intelligence Council, comprised of intelligence community analysts and individuals from the private sector, which produce the secret but often-cited National Intelligence Estimates for the use of the intelligence community.36 The Director of Central Intelligence sets the priorities for intelligence collection across the intelligence community,37 and facilitates the development of the budget of the National Foreign Intelligence Program for the intelligence community.38 In his role as the Director of the CIA, he is responsible for planning and managing the CIA's own operations and activities.

Judicial Review

The CIA is an agency under the definition given in §701 of the Administrative Procedure Act.39 It may be arguable that CIA operations in a theater of war, such as the interrogations in the Abu Ghraib prison in Iraq, are unreviewable, since they could be construed as "military authority exercised in the field in time of war or in occupied territory."40 The APA does not, however, define military authority.

Judicial review is not mentioned in the National Security Act, except in the context of Freedom of Information Act determinations. Other than FOIA, no clauses define a judicial scope, a specific jurisdiction of review, preclude any particular issues from review, or specifically commit any matters to administrative discretion. However, the Supreme Court has held that section Section 102(c) of the National Security Act confers unreviewable discretion over termination of CIA employees.41 For the vast majority of CIA actions, no administrative process is available to the public.

For all CIA actions other than responses to FOIA requests, one would look to the Administrative Procedure Act for authority. Under § 551 of the APA, agency actions include imposing sanctions, granting relief, or their inverse -- the failure to act.42 The APA defines sanctions as including prohibitions, requirements, limitations, or other conditions affecting the freedom of a person;43 the imposition of penalties;44 the destruction, taking, seizure or witholding of property;45 or taking other compulsory or restrictive action.46 "Relief" includes the granting of money, assistance, license, authority, or taking other action on the application or petition of, and beneficial to, a person.47 Both definitions refer to "persons", not US citizens. This is important, since most CIA actions are carried out overseas and primarily affect non-citizens.

Section 704 of the APA provides a presumption of reviewability for a final agency action. Since the CIA has no administrative mechanism by which a plaintiff could seek review, other than in the case of FOIA determinations, sanctions or relief provided by the CIA are final and reviewable under the provisions of the APA. This may include such activities as bribery, extortion or assassination of foreign citizens,48 the provision of arms to guerrilla or terrorist forces, or the incarceration or torture of non-citizens. All of these activities should be reviewable under the APA.

One would look to §706 the APA to determine the standard of review for actions other than responses to FOIA requests.49 To determine the standard of review, the first question to ask would be whether a CIA action is formal or informal. The CIA's actions fall into two categories: covert action, and everything else. The term "covert action" refers to activities to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly. Covert action does not include traditional intelligence-gathering activities, counterintelligence, administrative activitites, activities supporting other government programs, or traditional diplomatic, military or law-enforcement activities.50 Covert actions must be individually authorized by a written presidential finding.51 Therefore, it would be logical to divide CIA actions into two categories: covert actions requiring specific presidential authorization (formal) and everything else (informal). This is entirely speculative; Westlaw and Lexis searches do not turn up any instances of straightforward challenges to the legality of CIA actions under the APA.

Standing would normally be an issue. Taxpayer standing would ordinarily be insufficient.52 In addition, money damages would most likely be restricted to Bivens, Federal Tort Claims Act and Tucker Act claims. However, a plaintiff could seek declarative or injunctive relief, under the theory that the CIA has acted unconstitutionally, ultra vires, or in violation of a treaty. A counterargument might be that the Executive Branch has plenary power in its discretion over foreign affairs, an argument often heard in the context of immigration law. In addition, it might be said, the intelligence commitees of the House and Senate are already designed to provide oversight. These arguments are specious because it must be shown that the Executive Branch is acting within its discretion, and because the existence of Congressional oversight does not diminish the jurisdiction of the courts.

Treaties would likely provide the most fertile ground upon which to base a claim that an action of the CIA is illegal. Treaties and Acts of Congress are in full parity with one another in a U.S. court. Treaties are recognized in our Constitution as the "supreme law of the land."53 International agreements are a part of the law of the United States, and U.S. courts must give full effect to international law.54 When a treaty and a federal statute conflict, "the one last in date will control the other."55 They carry identical weight. Violation of a treaty would negate a claim that the Executive Branch is acting within its plenary power over foreign affairs, since the Executive has no discretion to violate the law. An executive order cannot supersede a statute.56 Article III, Section 2 of the U.S. Constitution extends the judicial power to all cases arising under Treaties made by the government. Judicial review would extend to all matters of law, regardless of any authority of the Congressional oversight committees.

The government's evidence in such as case would most likely be classified. The CIA could assert the state secrets privilege to prevent the discovery of classified information.57 While this may make litigation difficult for a plaintiff seeking to challenge a CIA action, it would not present a bar to judicial review. For example, in criminal cases, procedures exist for in camera hearings to determine the use, relevance, or admissibility of classified information introduced by the defendant.58 As to each item, the court sets forth in writing the basis for its determination.59 Should the classified information be relevant and admissible, the government may move for the substitution of a statement admitting the relevant facts, or for a summary of the classified information to be used, rather than the classified information itself.60 Records of such proceedings are sealed and preserved by the court. Another example -- in Freedom Of Information Act cases, courts appoint special masters, with security clearances, for in camera review of contested documents or affidavits describing them.61 These examples show that the classified nature of a CIA action would not present an unusual obstacle to judicial review.

These arguments would apply to the National Security Act, as amended by the Central Intelligence Agency Act, and to other laws and treaties. The provisions of Executive Order 12333, however, are not legally binding, so a claim that the CIA has acted ultra vires of Executive Order 12333 would not be justiciable. An executive order is a delegation of executive authority, and is not judicially enforceable unless it has a separate statutory foundation.62 Even in the domain of foreign relations, the executive power is not exempt from judicial review or immune to constitutional limitations.63 The 10th Circuit has articulated a standard for the enforceability of an executive order under the APA: (1) the executive order must have a specific statutory foundation, (2) neither the statutory foundation nor the executive order must preclude judicial review, and (3) there must be law to apply -- ie, an objective standard by which a court can judge the agency's actions.64 As delegations of executive discretion, the provisions of Executive Order 12333 are not judicially enforceable in and of themselves.

Rule Making

The vast majority of the CIA's internal rules are unknown to the public. If there is a "CIA Manual" akin to those of the FBI and Department of Justice, it is classified and its existence unacknowledged. A small number of CIA rules are codified in the Code of Federal Regulations, however, including those pertaining to the Freedom of Information Act,65 the Privacy Act,66 information security regulations,67 conduct on agency installations,68 acceptance of service of process,69 production of records in response to discovery requests,70 employment discrimination on the basis of disability,71 challenges to document classification by authorized holders,72 and public requests for mandatory declassification review of classified information.73 These rules were created through the informal notice and comment provisions of APA § 553. However, as readers are already aware, this does not even begin to describe the CIA's activities.

Adjudication

Whatever adjudicative hearings the CIA may conduct are not open to the public. Whatever rules may exist for these hearings are not published. The results of these proceedings are not published in any official or unofficial reporters. They are not classified, though, as the decision in Webster v. Doe74 shows. If the administrative proceeding in Webster had been classified, the courts would have had to resort to using the Classified Information Procedures Act75 to review the evidence, which does not appear to have been the case. Since the details of any adjudicative proceedings are unknown, one must assume that they are inherently unfair, and that a person bringing a case before the CIA would be at a disadvantage, since he or she would not be assisted by a lawyer. If lawyers were permitted, then the adjudicative procedures and reports of the proceedings would both be published, which they are not. It is hard to imagine a lawyer practicing in a field where the rules and precedent decisions are unpublished. Perhaps this author is in error, but he has no knowledge, and no reason to believe, that lawyers are permitted at whatever adjudicatory hearings may exist.

Public Access

The CIA does not hold any meetings or hearings open to the public.76 It is not at all clear how the CIA is exempt from the Government in the Sunshine Act.77 There is no CIA exemption in this act. Even if the CIA's meetings are closed to the public, the CIA's General Counsel must still publicly certify that each meeting is closed to the public, and state each relevant exemption provision.78 Nothing of the sort occurs. Only a few of the CIA's internal rules are known, promulgated through the notice and comment process. The proceedings of whatever rulemaking or adjudicative hearings might exist are not published.

In fiscal year 2003, the CIA processed 3,252 FOIA requests.79 Of these, 422 were granted in full, and 1178 were granted in part. 223 were appealed at the administrative level, resulting in 38 partial reversals, and no complete reversals.80 The CIA's annual FOIA report does not mention how many cases were litigated, but some measure of the CIA's success in court can be determined by the fact that the 2003, the CIA only paid about $1200. in legal fees to FOIA plaintiffs.81 The FOIA provides that plaintiffs who "substantially prevail" are to be paid fees by the losing agency. This means that the CIA probably lost only one case in 2003, and a very simple one at that.

The most commonly claimed FOIA exemptions were (b)(1), for information related to foreign policy and national defense, and (b)(3), for matters exempted by a statute other than the FOIA. The National Security Act, requiring the CIA Director to protect "sources and methods," has been held to be a witholding statute for the purpose of the (b)(3) exemption.82 The CIA applies the (b)(3) as a blanket exemption to broad categories of information, protecting sources and methods, using two legal theories: the "mosaic" theory,83 which is that seemingly innocuous information can be pieced together to determine how the CIA has obtained it, and the "Glomar" theory,84 which is that to admit the existence or nonexistence of documents will enable FOIA requesters to determine the CIA's activities through a process of elimination, by noting when the CIA responds to FOIA requests, and when it doesn't. Virtually all of the CIA's files can be exempted from the FOIA using one or both of these theories.

Both the House and Senate bills to reorganize the intelligence community put the responsibility to protect intelligence sources and methods on the new position of National Intelligence Director ("NID"), taking the responsibility away from the CIA Director. Should the reorganization take place, this will allow all 15 agencies under the NID to use the (b)(3) as a blanket exemption, per Sims v CIA.85

The CIA is also one of a few federal agencies that doesn't send its old records to the National Archives after 25 years. A small number of hand-picked records are available on the "CIA Computer" at the Archives, but this is apparently for public relations purposes. Many old records are said to have been destroyed, but this is far from certain.

Restructuring the Intelligence Community

On September 8, 2004, I attended a hearing of the Senate Committee on Government Reform entitled "Restructuring the Intelligence Community." The hearing was the first of several days of hearings about a major reorganization of the fifteen federal agencies constituting the intelligence community.86 The impetus for the reorganization came largely from the report of the National Commission on Terrorist Attacks Upon the United States. As of this writing, the reorganization has not occurred due to the prolonged debate over the details. The two witnesses at the hearing were Robert Mueller, FBI Director, and John McLaughlin, Acting Director of Central Intelligence. There was no opportunity for public comment, and although the room was packed with hundreds of people who appeared to be reporters, news reports mentioned few details of what was said.

The first witness, Robert Mueller, proposed separating intelligence collection and analysis from intelligence operations -- two functions which currently reside in the CIA, a structure the CIA inherited from the OSS.87 He also said that the targeting of information collection should remain distributed among the fifteen agencies of the "intelligence community". Analysis and management, however, should be centralized in one agency. He described how the FBI sets its intelligence collection priorities -- the users of the intelligence set the priorities for the collectors -- and suggested this "consumer-driven" approach as a model for the new organization. He suggested three guiding principles for intelligence reform: providing analysts with transparency in sourcing (the analysts should know who the sources are and be able to personally evaluate their reliability); preserving the operational chain of command (by this he means that the details of intelligence collection should be managed by the agencies, and not by a national intelligence director); and third, protecting civil liberties. Mueller emphasized that CIA personnel are ill-suited for work within the US and that CIA methods should not be used here. Finally, Director Mueller rejected a proposal to move the counterrorism function of the FBI to another agency, refocussing the Bureau on law enforcement. He said that terrorism investigations, in particular, are normally intertwined with organized crime or financial investigations, and that removing the counterterrorism people from the FBI would isolate them from their sources.

Acting CIA Director McLaughlin emphasized the need for speed and agility in an intelligence organization, and the need for the new NID to move money and personnel quickly among agencies. In his view, the NID would set targeting priorities, acting as a "clearinghouse for what needs to be done." While Mueller had advised letting the various consumers of intelligence set collection priorities, McLaughlin said that target selection should be centrally controlled. McLaughlin also spoke of a synergy between operations and analysis, and disfavored separating them, as Robert Mueller and Senator Pat Roberts had proposed.

I also attended two days of confirmation hearings for Porter Goss, the new Director of Central Intelligence, on Sept. 14 and 20, 2004. Goss was eventually confirmed, replacing George Tenet, who resigned amid public controversy over his reported assertion to President Bush that finding weapons of mass destruction in Iraq would be a "slam dunk." In the run-up to the election, there were repeated leaks of classified documents to the press, intending to show that CIA analysts were not to blame for Tenet's exaggeration or Bush's ill-fated invasion. Goss had been a long time member of the Senate Intelligence Committee, and was seen as hawkish Republican loyalist.

Goss was given a rough grilling by four Democratic Senators, who accused him of being too partisan for the job. Goss refused to discuss a number of politically charged statements he had made,88 stating only that "the record is the record" and that in his new role, he would refrain from making such comments. A variety of scandals related to the war in Iraq and the attacks of Sept 11, 2001 were discussed; as Chair of the Senate Intelligence Committee, Goss has been responsible for oversight over the CIA.

Little was asked or said about intelligence reform at the confirmation hearings. Goss emphasized that we are at war, that our enemies are committed to destroying our way of life, and that we won the cold war through pre-emptive action. He characterized the CIA as not being aggressive enough, and CIA analysis as "groupthink." He disagreed with the idea of separating the analysis and operations functions which currently reside in the CIA, but had nothing else to say about how the intelligence community should be organized.

Subsequent to his appointment as Director of Central Intelligence, Porter Goss has replaced the top management of the CIA with four young staffers who worked for him on Capitol Hill. A fifth staffer, Michael Kostiw, declined to accept a position after it was leaked to the press that he had been forced out of the CIA years before for failing a polygraph test about an arrest for shoplifting a $2.13 package of bacon from a grocery store.89 Since then, much of the CIA's top management has resigned, including John McLaughlin, who had temporarily been DCI after Tenet's departure. Goss' mission has been twofold: to stop the continuous stream of leaks to the press by disgruntled CIA employees, and to encourage CIA employees to support the President and his policies. According to the press leaks, this has made Porter Goss an extremely unpopular director.

Conclusion

The CIA is an administrative agency of the Executive department. Its structure and functions lend themselves to a straightforward analysis under the Administrative Procedure Act, just like any other administrative agency. Its actions should be reviewable under the APA.

The proposed reorganization of the intelligence community is a reaction to recent disasters, parallel to the fear of communism, and desire to "avoid another Pearl Harbor" that created the CIA in 1947. It may provide an opportunity to watch the creation of a new agency. As of this writing, the details of the new agency are still uncertain. The Defense Department has recently convinced some members of Congress not to grant the National Intelligence Director budgetary authority over the military intelligence branches and the agencies they work most closely with -- the National Security Agency, the National Geospatial-Intelligence Agency, National Reconnaissance Office, echoing the debate of 1947.

It seems likely that, however the power struggles are resolved, the new agency will be a highly secretive one, like the CIA, and largely beyond the reach of the Freedom of Information Act. At the same time, the emphasis on sharing intelligence among the fifteen component agencies will likely have a negative impact on protecting this information from foreign intelligence services. Normally, secret information is compartmentalized on a "need to know" basis. The more widely information is disseminated, the more likely it is to get into the wrong hands. The effect of the reorganization will therefore be to keep national security information further from the scrutiny of the US public, but make it more easily accessible to foreign governments to through espionage. Civil libertarians should also be concerned with the privacy implications of the wide distribution of information collected either through a secret warrant of the FISA court,90 or with no warrant at all, as is the case with information collected overseas. Whether the monstrous new agency will be better equipped to "connect the dots" and to prevent future terrorist attacks remains highly doubtful.

Footnotes

1 5 USC §§551-559, §§561-568, §§570, §§701-706, §§801-808, §1305, §3105, §3344, §5372, § 7521 (1946).

2 For more background on the OSS and origins of the CIA, see R. HARRIS SMITH, OSS: THE SECRET HISTORY OF AMERICA'S FIRST INTELLIGENCE AGENCY, (1972); CLAYTON D. LAURIE, THE PROPAGANDA WARRIORS: AMERICA'S CRUSADE AGAINST NAZI GERMANY (1996); BRADLEY SMITH, THE SHADOW WARRIORS: THE OSS AND THE ORIGINS OF THE CIA (1983); RHODRI JEFFREYS-JONES, THE CIA AND AMERCIAN DEMOCRACY (1989); THOMAS F.TROY, DONOVAN AND THE CIA: A HISTORY OF THE ESTABLISHMENT OF THE CENTRAL INTELLIGENCE AGENCY (1981). A deniably official history of the OSS may be found at http://www.cia.gov/cia/publications/oss/art01.htm. See also the author's website at http://www.icdc.com/~paulwolf/oss/oss.htm, containing over 1200 pages of declassified OSS records, obtained from the U.S. National Archives. Should this link change at some future time, a web search on the author's name should locate it. In addition, the work is maintained at the archives of the U.S. Army Special Warfare Center, Ft. Bragg, NC.

3 The OSS was disbanded by Executive Order 9621on September 20, 1945, effective Oct. 1, 1945.

4 R. HARRIS SMITH, supra at 364.

5 THOMAS F.TROY supra at 298-302.

6 "The Basis for a Permanent United States Foreign Intelligence Service," William J. Donovan, October 1944, cited in Opinions of the Office of General Counsel, supra at 12.

7 Id. at 12.

8 Id. at 13.

9 Opinions of the Office of General Counsel 14, Central Intelligence Agency, Vol. XXVII. (Jan.-June 1974). (this is a declassified Secret report obtained from U.S. National Archives).

10 Id. at 15.

11 Id. at 16-17.

12 Id. at 17.

13 Id. at 17-18.

14 Id. at 18.

15 Id. at 11.

16 Id. at 24.

17 Id. at 19.

18 National Security Act, 50 U.S.C. 401 (1947).

19 National Security Act, § 2, 50 U.S.C. 401 (1947).

20 50 U.S.C. § 403. The Central Intelligence Agency Act of 1949 provided for various administrative functions of the CIA, including authorizing the training of CIA officers, specifying employment/personnel conditions for CIA employeese, specifying how the CIA could borrow personnel from other government agencies, and establishing the Office of the Inspector General to investigate internal affairs. It also provided for the special needs of the CIA, by specifying how the CIA could use secret funds, allowing the CIA to bypass immigration laws for defectors who were illegally in the U.S., and granting the DCI the authority to determine what in the CIA should be kept secret.

21 Id. at 38.

22 Opinions of the Office of General Counsel supra at 42-43, 50.

23 U.S. Government Manual 366-367 (2003).

24 Id.

25 Id.

26 The "intelligence community" includes the Central Intelligence Agency, Department of State, National Security Agency, National Geospatial-Intelligence Agency, National Reconnaissance Office, Air Force Intelligence, Army Intelligence, Coast Guard Intelligence, Defense Intelligence Agency, Marine Corps Intelligence, Navy Intelligence, Federal Bureau of Investigation, Department of Homeland Security, Department of Treasury and the Department of Energy.

27 Executive Order 12333, 3 C.F.R. 200 (Dec. 4, 1981).

28 Id., Part 1, §§1.1-1.6.

29 Id., Part 2, §§2.1-2.12.

30 Id., Part 2, §2.10.

31 Id., Part 2, §2.11.

32 Id., Part 3, §3.1.

33 National Security Act of 1947, as amended, § 102(a), 50 U.S.C. 403.

34 Id. at § 102(b).

35 Id.

36 Id.

37 Id. at § 103 (c)(2).

38 Id. at § 104 (a).

39 5 USC §§ 551(1), 701(a)(1) (1946).

40 Id. at §701(a)(1)(G).

41 Webster v. Doe, 486 U.S. 592, 601 (1988).

42 Id. at §551(13).

43 Id. at §551(10)(A).

44 Id. at §551(10)(C).

45 Id. at §551(10)(D).

46 Id. at §551(10)(G).

47 Id. at §551(11).

48 Contrary to popular belief, assassination of non-citizens outside the territorial boundries of the US is not illegal. Assassination and indirect participation in assassination are prohibited by Executive Order 12333 §§ 2.11-2.12, 46 FR 59941 (1981). However, Executive Orders are not laws and are enforceable at the executive's discretion.

49 FOIA determinations are reviewed under the de novo standard. 5 USC § 552 (a)(4)(B). However, courts have granted the CIA near blanket immunity from the FOIA using the (b)(3) exemption. This subject is beyond the scope of this paper.

50 National Security Act of 1947, Title V, § 503(e), 50 U.S.C. 413b.

51 National Security Act of 1947, Title V, § 503, 50 U.S.C. 413b.

52 See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); U.S. v. Richardson, 418 U.S. 166 (1974); Association of Data Processing Servive Organizations, Inc. v. Camp, 397 U.S. 150 (1970); Flast v Cohen, 392 U.S. 83 (1968).

53 Bieregu v. Ashcroft, 259 F.Supp.2d 342, 348 (D.N.J.,2003).

54 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 (American Law Institute, 1987).

55 Whitney v. Roberton, 124 U.S. 190, 194 (1888).

56 Marks v. Central Intelligence Agency, 590 F.2d 997, 1003 (1978)

57 Totten v. US, 92 U.S. 105, 2 Otto 105 (1875); Reynolds v. US, 345 U.S. 1 (1953). Thanks to Dan Alcorn for suggesting these two cases for this paper.

58 Classified Informaton Procedures Act, 94 Stat. 2025, 18 USC Appendix, as amended by Pub. L. 100-690, Title VII, Sec. 7020(G), Nov. 18, 1988, 102 Stat. 4396. Thanks to Dan Alcorn for suggesting inclusion of CIPA in this paper.

59 Id. at Section 6.

60 Id. at Section 6(c).

61 Cuneo v. Schlesinger, 484 F.2d 1086 (D.C.Cir.1973); Dep't of Air Force v. Rose, 425 U.S. 352 (1976); Military Audit Project v. Casey, 656 F.2d 724 (D.C.Cir.,1981); Phillippi v. Central Intelligence Agency, 655 F.2d 1325 (D.C.Cir.,1981); Afshar v. Department of State, 702 F.2d 1125 (D.C. Cir.,1983); Knight v. CIA, 872 F.2d 660 (5th Cir.,1989), cert. denied, 494 U.S. 1004 (1990); Fitzgibbon v. CIA, 911 F.2d 755 (D.C.Cir.,1990); Washington Post v. U.S. Dept. of Defense, 766 F.Supp. 1 (D.D.C.,1991); Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992); Public Citizen v. Department of State, 11 F.3d 198 (D.C.Cir.,1993).

62 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952)

63 Zweibon v. Mitchell, 516 F.2d 594, 626 (D.C.Cir. 1975)

64 City Of Albuquerque v. U.S. Dept. Of Interior, 379 F.3d 901, 913 (10th.Cir.,2004)

65 32 CFR § 1900 (2003)

66 32 CFR § 1901 (2003)

67 32 CFR § 1902 (2003)

68 32 CFR § 1903 (2003)

69 32 CFR § 1904 (2003)

70 32 CFR § 1905 (2003)

71 32 CFR § 1906 (2003)

72 32 CFR § 1907 (2003)

73 32 CFR § 1908 (2003)

74 486 U.S. 592, 601 (1988)

75 Supra at note 58.

76 Telephone conversation with Molly Hale, CIA Public Affairs Official, Oct. 18, 2004. 77 5 U.S.C. 552b.

78 5 U.S.C. 552b (f)(1).

79 Annual FOIA Report to Congress (2003), http://www.foia.cia.gov/annual_report.asp

80 Id.

81 Id.

82 CIA v. Sims, 471 U.S. 159 (1985) (holding the National Security Act to be a "witholding statute" for the purpose of the (b)(3) exemption).

83 Halperin v. CIA, 629 F.2d 144, 150 (D.C.Cir.1980) ("[E]ach individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself."); United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.1972) ("What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.")

84 Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C.Cir.1976).

85 For example, enabling act of the National Security Agency was held not to be a "witholding statute," since it does not contain the "sources and methods" language of the National Security Act, and the NSA has never before been allowed to use the (b)(3) as a blanket exemption.

86 See supra at note 6 for a list of the agencies.

87 This was the key element of an intelligence reorganization proposal of August 23, 2004 by Senator Roberts entitled the "9/11 National Security Protection Act." I also proposed this idea on August 8, in an essay entitled "Demise of the CIA."

88 Senator Jay Rockefeller was particularly unhappy with Goss' characterization of the Democrats being responsible for cutting the CIA's budget in the past. Senator Wyden was concerned with a bill proposed by Goss in June 2004 which would give the CIA domestic law enforcement powers; in response, Goss said "the CIA should have no arrest powers in the United States of America."

89 "Kostiw withdraws from consideration," by Walter Pincus, The Washington Post, October 5, 2004

90 The Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. 1801 et. seq., created a secret court which issues secret warrants to authorize invasive surveillance in national security matters within the territorial borders of the United States.

Copyright Paul Wolf, 2004. For educational use only.