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Ronald Reagan Presidential Library
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Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(12/01/1983-02/07/1984)
Box: 53
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THE WHITE HOUSE
WASHINGTON
January 24, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Statement of Alfred S. Regnery Before
Juvenile Justice Subcommittee and Senate
Judiciary Committee, January 25, 1984
Regarding School Discipline and School Crime
Al Regnery proposes to deliver the attached testimony on
school discipline tomorrow, before Senator Specter's
Subcommittee on Juvenile Justice of the Senate Judiciary
Committee. The testimony argues that violence in schools is
a serious problem, that it directly affects educational
quality, and that it contributes to the decay of inner city
schools. The testimony contends that greater discipline
rather than more money or programs will solve the problem.
It concludes by reviewing plans for the Justice Department
National School Safety Center, announced by the President in
his January 7 radio address.
Much of the testimony is based on the memorandum to the
President and the Cabinet Council on Human Resources
prepared by the Cabinet Council on Human Resources Working
Group on School Violence and Discipline. Regnery advised me
that the report had been distributed to the press by
Secretary Bell. Accordingly, I have no objection to Regnery
referring to it in his testimony.
On page 1, Regnery begins his testimony be snidely chiding
Congress for "seeing fit" to address the issue of school
discipline at this time. On the same page, however, he
notes that the Subcommittee held hearings on the subject
beginning in 1975. In the attached proposed memorandum, I
recommend changing the "are pleased that Congress has now
seen fit to address this issue" language to something like
"look forward to working with Congress in addressing this
serious issue.'
On page 5, the testimony states that "school discipline is a
civil rights issue," and supports this statement by citing
statistics that minority students are more likely than
others to be the victims of violence. The basis of our
whole effort in the civil rights area, however, has been to
move away from contentions that disparate impacts are
evidence of discrimination. School violence, regardless of
- 2 -
its statistical impact on minorities, is a civil rights
issue only if minority students are attacked more than
non-minority students because of their race. There is no
evidence that this is so. The point of the greater
proportional impact of school violence on minorities can be
made, but it should not be labelled a "civil rights issue."
On page 11, Regnery cites the President's direction in the
radio address to the Justice Department to file amicus
briefs in school discipline cases. In our comments on the
radio address (copy attached), we suggested adding the
phrase "when appropriate" to this sentence. Our advice was
not heeded. Nonetheless, I think we should recommend the
addition to Regnery's testimony.
I have alerted McConnell's office that we have concerns
about this testimony. I should be advised as soon as you
have reviewed this memorandum, so that I can telephone the
changes to McConnell's office in a timely fashion.
Attachments
[After this memorandum was prepared, I received a call from
an attorney in McConnell's shop, who advised me that the
testimony had already been re-written in a manner that
responded to most of the concerns raised above. The opening
paragraph now "welcomes Congress' interest," and the "civil
rights issue" language is out. Our suggestion concerning
the amicus brief language was accepted. The paragraph on
busing on page 6 is also to be deleted, over Mike Horowitz's
objections but at the insistence of Justice's Civil Rights
Division. There is now no need for any action on our part.]
ID #
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Subject: Statement of alfeed S. Regnery before
Juvenile Justice Subcommittee and Senate
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re School discipline and School crime
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5/81
Statement of Alfred S. Regnery
Administrator
Office of Juvenile Justice and Delinquency Prevention
Juvenile Justice Subcommittee
Senate Judiciary Committee
January 25, 1984
Thank you very much, Senator Specter, for asking me to testify at
this hearing on school discipline and school crime. The issue is a timely and
an important one, and falls squarely within the jurisdiction of the Juvenile
Justice Subcommittee. As you know, the executive branch has been
addressing the question over the last several months, and we in the
executive branch generally, and particularly in the Justice Department, are
pleased that Congress has now seen fit to address the issue also.
The Cabinet Council on Human Resources Working Group on School
Violence and Discipline, of which I am a member, presented a memorandum
to the Cabinet Council on Human Resources and to the President early in
January, which outlined the nature of the problem as we saw it, and which
made several suggestions on what we thought should be done. I would ask
that a copy of that memorandum be made part of the record of this
hearing. Additionally, the President addressed the issue of discipline in the
schools at the Excellence in Education Forum in Indianapolis on December
8, 1983, and again addressed the issue in his weekly radio address on
January 7, at which time he outlined some of the things that the executive
branch would do to try to alleviate the problem.
The issue of crime in the schools is by no means a new one, nor is it
a new one to this Subcommittee. Starting in 1975, this Subcommittee held
a series of hearings which examined the problem of school crime and
violence. Those hearings received nationwide coverage on television, radio,
and in the newspapers. One of the lead witnesses described his experience
as follows:
"As a prime witness, I presented evidence of the serious nature
and extent of crime in our schools throughout the country.
Representatives of school districts and educational associations also
testified as to daily grim experiences in schools dealing with murder,
assault, extortion, vandalism, theft and arson -- problems which
create an atmosphere of fear and frustration and drain sorely needed
monies from the basic educational process." 1
As a consequence of those hearings, Congress amended the Juvenile
Justice and Delinquency Prevention Act in 1977 with the Juvenile
Delinquency in the Schools Act, which recognized the problem of school
crime and violence and which set forth various things that my office should
do to help with the problem.
As a result of earlier initiatives in the Congress, the Department of
Health, Education and Welfare, in 1978, released an extensive study on
crime in the schools entitled, "Violent Schools -- Safe Schools: The Safe
School Study Report to the Congress." The objectives of that study were to
determine the frequency and seriousness of crime in elementary and
secondary schools in the United States; the number and location of schools
affected by crime; the cost of replacement or repair of objects damaged by
school crime; and how school crime can be prevented.
The Violent Schools--Safe Schools study included the following
findings:
6,700 of the nation's schools had a serious problem with crime;
one-fourth of all schools in the country were vandalized in a
given month and 10% were burglarized;
in a typical month about 2.4 million secondary school students
had something stolen and about 282,000 students reported
being attacked;
in a month's time 120,000 secondary school teachers had
something stolen at school, 6,000 had something taken by
force, weapons, or threats, 5,200 were physically attacked,
about 1,000 of whom were injured seriously enough to require
medical attention;
the risk of violence to teenagers was greater in school than
elsewhere. They spent 25% of their waking hours in school, yet
40% of the robberies and 36% of the assaults on urban students
occurred in schools;
data from students interviewed reflected that monthly 525,000
attacks, shakedowns, and robberies occur in public secondary
schools - almost 22 times as many as are recorded by the
schools;
an average of 21% of all secondary students stated they
avoided restrooms and were afraid of being hurt or bothered at
school; 800,000 students reported staying home from school
because they were afraid;
12% of the teachers hesitated to confront misbehaving
students because of fear, and almost half of them had been
insulted or subjected to obscene gestures; and
secondary students reported beer, wine, and marijuana were
widely available in their schools. Almost half of them stated
that marijuana was easy to get and 37% made the same
comment concerning alcohol. Serious drugs were reported
much harder to get than marijuana or alcohol.
Although the National Institute of Education (NIE) study has never
been duplicated in its scope, additional research indicates that the problem
is still a very real one. A major 1983 study of school violence by Jackson
Toby, Director of Rutgers University's Institute for Criminological
Research, for example, concluded that the NIE data had probably
understated the actual instances of school violence at the time the survey
was conducted. ("Violence in School", Crime and Justice: An Annual
Review of Research, vol. 4).
Similarly, a November 29, 1983, report prepared by the Boston
Commission on Safe Public Schools, chaired by retired Massachusetts
Supreme Court Justice Paul C. Reardon entitled "Making Our Schools Safer
for Learning", concluded that the problems described in the NIE report
have probably worsened since 1978. According to the study, four out of
every ten high school students surveyed by the panel reported that they had
3
been the victims of robbery, assault, or larceny during the course of the
1982-83 school year. Moreover, 37% of male students and 17% of female
students surveyed in Boston high schools reported that they had carried a
weapon in school at some time during the school year --- a problem about
which the panel had "no doubt" was "on the rise." In news reports
discussing the Commission's report, the Boston Superintendent of Schools
characterized his city schools as safer than those in other cities.
The issue is not, of course, whether the problem is "better" or
"worse" than in 1978. Any violence in school is unacceptable. Since
violence still is a real problem in many schools, we need to do what we can
to help.
Teachers, as well as students, are victims of school crime. As the
report to the President noted, "For many teachers, schools have become
hazardous places to teach and definitely places to fear. Self-preservation
rather than instruction has become their prime concern."
And as Ernest Boyer, Commissioner of Education during the last
Administration, noted:
"Beaten down by some of the students and unsupported by the
parents, many teachers have entered into an unwritten, unspoken
corrupting contract. The promise is a light workload in exchange for
cooperation in the classroom. Both the teacher and the students get
what they want. Order in the classroom is preserved, and students
neither have to work too hard nor are too distracted from their
preoccupations. All of this at the expense of a challenging and
demanding education."
In a poll taken by the National Education Association (NEA) during
1983, nearly half the teachers responding reported that student misbehavior
interfered with teaching to a "moderate or great extent." And the
percentage of teachers polled by the NEA who reported being physically
attacked during the preceding year increased by 53% between 1977, the
year of the NIE study, and 1983. The percentage reporting malicious
damage to their personal property increased by 63% over the same period.
The 1983 report of the Boston Commission of Safe Public Schools,
mentioned earlier, indicates that 50% of a large sample of Boston teachers
who had responded to the panel's mail survey reported that they had been
victims of robbery, assault, or larceny during the course of the past school
year.
By the same token, the cost of school crime to taxpayers is
overwhelming. Taxpayers pay teachers to teach, but teachers cannot
because they are too busy working as disciplinarians. Taxpayers buy books
and equipment, and student vandals destroy them. Taxpayers pay their
taxes for education, but buy burglar alarms, break-proof glass, and police
patrols for the halls instead. In fact, the National PTA recently observed
that the annual cost of vandalism -- something in the vicinity of $600
million per year -- exceeds the nation's total expenditure on textbooks.
Security personnel, security systems, and the cost of lost teacher time and
the demoralization of schools and school systems is probably even a greater
expense.
As the Cabinet Council Report to the President points out, school
discipline is a civil rights issue. Minority students are substantially more
likely to be the victims of school crime than are non-minority students.
Students in predominantly minority schools are twice as likely to be
victims, for example, of serious crimes as students in predominantly white
schools. Teachers in these schools are five times more likely to be victims
of attacks requiring medical treatment, and three times more likely to be
robbed.
Minority families, particularly those who live in the inner city,
depend on the public school to a far greater degree than do middle class
5
whites or others to assist their children in their fight for upward mobility in
society toward a successful and self-sufficient life. Where discipline
breaks down in their public school, where crime and drugs are rampant, the
students who want to be educated cannot be, and students who may not
even have a predisposition to be unruly not only fail to get an education,
but get drawn into criminal activity themselves. Restoring order in such
schools, on the other hand, as many schools have already done, by
consistently and fairly enforcing rules that are understood and known by
the students and by giving the students a structured environment where
they know what is expected of them and they know the consequences of
their actions if they misbehave, will and has proven to - reduce
suspensions and dismissals while at the same time raising educational
standards.
The problem of lack of discipline and crime in public schools also
directly affects the issue of busing. Schools where voluntary busing
programs exist have found that where discipline problems are acute with a
commensurate lack of educational standards, it is the good students --
those who want to be educated - who are bused to white schools in other
neighborhoods, leaving only the more marginal and less ambitious students
in the old schools. The upshot, obviously, is to make a bad school worse by
literally encouraging the good students those who often have a positive
influence on the others - to leave. By the same token, where such schools
have gotten control of their discipline problems, and restored order,
thereby increasing educational standards, they have found that good
students prefer to stay in their own neighborhood and help to further
improve the standards of their school.
Discipline is a key factor in the abandonment of urban public
6
education for private schools. The report of the Secretary of Education to
Congress on the financing of private elementary and secondary education
reported that discipline was considered to be a very important factor in
choosing their children's current school by 85.6% of public school parents
who had considered other schools, and 87.1% of private school parents.
Among parents who had transferred children from public to private schools,
discipline was the second most frequently cited reason. As the report to
the President of the Cabinet Council on Human Resources concluded, "The
hard-won right of minority children to an equal educational opportunity is
being erroded by unsafe and disorderly schools. Permitting the current
deterioration of order in the public schools to continue would be anti-
minority in the most fundamental sense."
The Cabinet Council Report to the President on School Discipline
indicates, in the strongest terms, that disorder in the schools has a very
direct impact - perhaps the most direct - on the question of educational
quality. As James Coleman concludes in his recent book, High School
Achievement:
"When study of the effects of school characteristics on
achievement began on a broad scale in the 1960's, those
characteristics that were most studied were the traditional ones :
per pupil expenditures as an overall measure of resources, laboratory
facilities, libraries, recency of textbooks, and breadth of course
offerings. These characteristics showed little or no consistent
relation to achievement. The characteristics of schools that are
currently found to be related to achievement, in this study and others
are of different sort."
"The reasons for superior academic achievement in private as
opposed to public schools can be broadly divided into two areas:
academic demands and discipline. For these are not only major
differences between the public and private sectors; as stated earlier,
the schools within the public sector that impose greater academic
demands (such as greater homework) and stronger discipline (such as
better attendance) bring about greater achievement than does the
average public school with comparable students."
As the report to the President pointed out, there is general
7
agreement with Coleman's view of the importance of an orderly
environment to learning. The Excellence in Education Commission, for
example, found that improved discipline is a prerequisite for improving our
nation's schools. A bipartisan Merit Pay Task Force of the U.S. House of
Representatives cited improved discipline as essential to upgrading the
quality of teachers and teaching. In fact, there is little debate that
educational excellence cannot be achieved without order, and that
discipline of students is an integral part in their education generally, and of
a quality education in particular. Many schools across the country which
have had serious discipline problems have been able to restore order and
discipline, with a consequence of restoring educational excellence to an
astounding degree. As the report to the President points out:
"The striking feature of the measures involved is their basic
common sense. These do not require massive spending -- only
motivation and leadership. These include such simple steps as
staff agreement on the rules students are to follow and the
consequences for disobeying them, and involvement in support
of principals and teachers in the disciplinary process."
The Cabinet Council Report speaks of several schools which have
been able to restore order; let me discuss one of those.
George Washington Preparatory High School in the Watts section of
Los Angeles, a school whose student body is 95% black and 5% hispanic
was, five years ago, one of the worst schools in Los Angeles. It had a
serious drug and gang problem, and was a school where disruptive students
were, in essence, in control. As Time magazine, in its April 25, 1983, issue
said, "Only four years ago, Washington High would have matched most
people's Hollywood image of the blackboard jungle. 'Morale here was
terrible,' recalls Margaret Wright, a leader of the parents' group. 'The
rooms were dirty and 90% of the teachers were rotten.'"
In 1979, George McKenna, who Time magazine describes as "a
8
tough-minded civil rights activist" became principal, and moved quickly to
restore order. He imposed a strict discipline code, requiring both students
and parents to sign an agreement that they would abide by it. I have a copy
of that contract, which is a fascinating document, and would ask that it be
included in the hearing record. McKenna got rid of bad teachers and
recruited new ones. He and a group of students painted out all the graffiti
in the school, and he made it clear that no graffiti would reappear.
Teachers were instructed to assign homework everyday, students were
instructed that they could not cut classes or school, and teachers were
required to call parents if students did not attend. There was to be no
evidence of gang membership or gang activity whatever, and a host of
other reforms were put in place. Improvement in both discipline and
educational standards was dramatic.
Suspensions, for example, are now 40% below what they were two
years ago. Truancy, in 1982, was only half of what it was in 1979, and is
substantially lower during this school year. Five years ago, 43% of the
senior class even expressed an interest in going to college. Last year, 80%
of the senior class did go to college. George Washington boasts the Los
Angeles school district's biggest increase in the number of students taking
the SAT tests and the inner city's lowest percentage of students barred
from extracurricular activities by poor grades. The list of improvements
goes on and on.
I visited George Washington Preparatory High School in early
December, and spent the morning with Principal George McKenna. He is a
strong and visionary person who has raised student expectations, enforced
rules fairly and consistently, and made the students realize, more than
anything else, that they need a good education to make their way in the
9
world. The students are proud of their school, are well-behaved and well-
dressed, and respect the school's fair and consistent enforcement of rules
that they understand.
I asked Mr. McKenna about the cost of making such reforms. He
told me that there was virtually no cost. I asked him what the effect would
have been of spending any amount of money in 1979 to improve the school,
and he responded that any amount of money spent would have been like
pouring money down a rat hole. The school did not need money, he
explained, it needed discipline and discipline made all of the difference.
Interestingly, but not surprisingly, as truancy at George Washington
has gone down, so has crime in the neighborhood. McKenna estimates that
breaking and entering, perhaps the most common juvenile offense, is down
by over 60% in the school neighborhood, largely because the students who
might otherwise be committing such offenses are now in school. McKenna
also discovered, after reviewing the data, that of some 800 students who
were being bused away from George Washington in 1979 to largely white
schools, most were good students who wanted an education, but felt an
education was not available at George Washington. Since the school has
been turned around, virtually nobody wants to be bused away, and in fact,
the school has a waiting list of over 200 students to get in.
One of the things recommended to the President in the Cabinet
Council Report, and one of the things the President requested that the
Department of Justice do in his radio speech on January 7, was to establish
a National School Safety Center. We are now in the process of planning
such an undertaking. We anticipate that such a center would have the
following functions:
act with the Department of Justice and Department of
Education to encourage an effective and cooperative
10
interagency effort to improve campus safety;
gather and analyze nationwide information on school safety
and crime prevention techniques and programs that may, in
turn, be utilized by education, law enforcement, and other
criminal justice practitioners and policymakers;
gather and analyze nationwide legal information regarding
school discipline, campus safety, and criminal law, rules, and
procedures and proceedings in federal, state, and local
jurisdictions;
develop and confer with a carefully recruited, distinguished
National School Safety Information Network representing 58
states and territories;
participate in relevant conferences;
create a national awards program to recognize and publicize
outstanding school safety and campus-related juvenile
delinquency prevention leaders from everywhere in America;
publish a National School Safety Bulletin to inform the nation's
75,000 leading opinion-shapers about emerging school safety
issues and campus crime prevention programs identified by the
National School Safety Center;
prepare and/or promote school crime and safety materials for
use by educators, law enforcers, criminal justice leaders, and
other interested practitioners and professionals;
conduct a nationwide, multi-media school safety advertising
campaign; and
visit with key education, law enforcement, criminal justice,
and other professionals as well as community leaders in the 58
states and territories to discuss and help seek answers to their
particular school crime and violence problems.
My office may also undertake other initiatives, and is looking at
other projects that we might undertake which would be beneficial.
The President requested the Department of Justice file amicus
curiae briefs in cases in both federal and state courts dealing with school
discipline. A task force has been established at the Department of Justice
to monitor such cases and to make recommendations to the Solicitor
General's office when such cases arise. Remaining issues raised in the
report to the President are still being discussed and planned.
11
In conclusion, we at the Justice Department are certainly very
pleased to be able to participate in this initiative to restore discipline in
the schools. School discipline is one of the things that Congress set forth in
the Juvenile Justice and Delinquency Prevention Act, and is certainly
something that can have a strong impact on juvenile crime generally.
Schools are, after all, after the family, the greatest influencing factor on
young people's lives, and to fail to provide young people with a safe and
structured environment, with a set of rules that is consistently and fairly
enforced and with the guidance to become law-abiding citizens, is to do a
disservice to our youth and to neglect our duties in preventing juvenile
crime.
THE WHITE HOUSE
WASHINGTON
January 30, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
OPR
SUBJECT:
Statement of J. Paul McGrath
Regarding Department of Justice
Authorization for Fiscal Year 1985
OMB has asked for our views on the attached testimony that
Assistant Attorney General McGrath plans to deliver before
the Subcommittee on Monopolies and Commercial Law of the
House Judiciary Committee on February 2. That Subcommittee
is holding the annual hearings on the Antitrust Division's
authorization.
McGrath's proposed testimony reviews the Division's budget
request and enforcement priorities. Those priorities, as
under William Baxter, focus on cartel activities and review
of mergers. The most significant aspect of McGrath's
testimony concerns resale price maintenance. Baxter pursued
a policy of not treating resale price maintenance as per se
illegal, contending that the Supreme Court decision estab-
lishing the per se rule for such schemes was ill-reasoned
and undermined by later developments. The issue was
presented to the Supreme Court last fall in the Monsanto V.
Spray-Rite case. McGrath announces in his testimony that
he:
will enforce the law as interpreted by the Supreme
Court unless and until its prior interpretation is
altered. Thus, we will enforce existing legal
precedent holding agreements between manufacturers
and distributors regarding the price at which the
manufacturers' products are to be resold to be
unlawful per se.
This should remove for McGrath an issue that had been a
considerable irritant in relations between Baxter and the
Hill.
I have no objection. The resale price maintenance issue is
before the Supreme Court, and there is no reason for McGrath
to confront the issue in the brief interim before the Court
offers guidance.
Attachment
THE WHITE HOUSE
WASHINGTON
January 30, 1984
MEMORANDUM FOR BRANDEN BLUM
LEGISLATIVE ANALYST
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Cris. signed by:
COUNSEL TO THE PRESIDENT
SUBJECT:
Statement of J. Paul McGrath
Regarding Department of Justice
Authorization for Fiscal Year 1985
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
FFF:JGR:aea 1/30/84
CC: FFFielding/JGRoberts/Subj/Chron
ID #.
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WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
ib ADUTGOING $
H INTERNAL
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Date Correspondence
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Name of Correspondent: Branden Blum
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Statement of J. Pane McGrath
re Department f Justice Authorization
for Fiscal year 1985
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B . Non-Special Referral
S Suspended
D Draft Response
S For Signature
F
Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response
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=
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Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
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5/81
U.S. Department of Justice
DRAFT
Washington, D.C. 20530
STATEMENT OF
J. PAUL MCGRATH
ASSISTANT ATTORNEY GENERAL
ANTITRUST DIVISION
BEFORE THE
SUBCOMMITTEE ON MONOPOLIES AND COMMERCIAL LAW
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
CONCERNING
DEPARTMENT OF JUSTICE AUTHORIZATION FOR
FISCAL YEAR 1985
ON
FEBRUARY 2, 1984
Mr. Chairman and Members of the Subcommittee:
I am delighted to be here this morning in connection with
your oversight and authorization hearings. I would like to
discuss with you the Antitrust Division's budget request for
Fiscal Year 1985, as well as the policies I will follow and the
priorities I have for the Division.
The Antitrust Division's budget request for Fiscal Year
1985 is for $45,620,000, which figure includes a request for
669 full-time permanent positions and 646 workyears. This
request reflects net uncontrollable increases after savings
from management initiatives in the amount of $3,475,000
required to maintain current operating levels. Major items
included in this category are increased general service
administration charges for rental space and a general pricing
level adjustment. Our budget request also reflects a transfer
from the Civil Aeronautics Board of 20 positions, 15 workyears,
and $775,000. Under the terms of the Airline Deregulation Act
of 1978, on January 1, 1985, the Civil Aeronautics Board's
authority to approve mergers and collective activities
involving air carriers will be transferred to the Antitrust
Division. We also have a program decrease of 55 positions, 55
workyears, and $2,841,000 in the Preservation of Competitive
Market Structure in Fiscal Year 1985. While our request
reflects the Administration's continuing commitment to reducing
the size of the federal government, I am confident that we will
be able vigorously and effectively to enforce the antitrust
laws with the resources we have requested.
As you know, I have been at the Justice Department for
almost three years, serving first as Assistant Attorney General
in charge of the Civil Division from Mid-1981 to December 16,
1983, when I assumed my present responsibilities. Before that,
I was engaged in the private practice of law in New York City
for approximately 16 years, primarily in the areas of antitrust
litigation and counseling. From my experience both in and out
of government, I believe I have developed a sound understanding
of the nature and workings of the Antitrust Division, as well
as of our economy, how businesses operate and what they hope to
achieve. I intend to continue this Administration's strong
commitment to a vigorous yet rational enforcement of the
antitrust laws by prosecuting seriously anticompetitive
activity in order to enhance consumer welfare.
The clearest example of the kind of behavior that restricts
competition is cartel-type activity, such as minimum
price-fixing, horizontal market allocations, bid rigging, and
other comparable agreements among competitors. Such activity
will continue to be the primary focus of our enforcement
efforts. Other activity that does not fall within the
above-described category has the potential for both competitive
-2-
harm as well as economic benefits. Such activity will continue
to be evaluated carefully to determine its overall economic
effects in order to decide whether it should be prohibited or
permitted to occur. Obviously, an overly restrictive
enforcement policy that deters conduct that will not restrain
competition but which is efficiency-enhancing not only wastes
scarce enforcement resources, but also deters firms from
engaging in activity that could benefit our economy and
consumers. Accordingly, in evaluating mergers and
acquisitions, joint ventures, non-price vertical arrangements,
intellectual property licensing and most forms of single-firm
conduct, our antitrust enforcement policy will be premised on
careful analysis and appropriate sensitivity to the ultimate
economic effects of prosecution.
Having set forth our overall policy, I would like to
discuss how the Division's major areas of activity reflect and
will continue to reflect the balanced approach I have described
to sound antitrust enforcement.
Cartel Behavior
Vigorous enforcement of the antitrust laws against clearly
harmful agreements among competitors of the type described
above has been, and will continue to be, the primary focus of
the Antitrust Division. Detection, prosecution and deterrence
of such activity is fundamental to our nation's reliance on
competitive markets in which all firms are free to utilize
-3-
their talents and resources to satisfy consumer demand for
goods and services. Because such conduct significantly harms
consumer welfare and economic efficiency, we will continue to
pursue cartel-type behavior, seeking indictment of responsible
individuals wherever possible and recommending jail sentences
and substantial fines as a matter of course to punish past
conduct as well as to deter it in the future.
During Fiscal Year 1983, the Department filed 98 criminal
cases against 122 corporations and 113 individuals. I am
pleased to report that during the past fiscal year, we
recovered fines totaling approximately $21 million and jail
sentences in excess of 216 months actual incarceration have
been imposed.
Our bid-rigging investigations and prosecutions, an area
which accounts for most of these cases, began in the area of
highway and airport construction and have spread to other
categories of federally-funded projects, as well as to utility
and electrical construction projects. We have worked closely
in these matters with Inspectors General of other federal and
state agencies, both in an effort to combine our resources and
expertise in seeking out and prosecuting such activity, as well
as in counseling other agencies on how they can better be able
to identify when such activity is occurring.
Notwithstanding the Division's considerable success in this
area, I believe that our effectiveness in finding and
prosecuting price fixing can be increased. Accordingly, I
-4-
recently announced as one of my first priorities the formation
of a task force of lawyers and economists from the Antitrust
Division, as well as lawyers from the Criminal Division, to
consider ways in which we might improve our ability to identify
industries that should be investigated for possible collusive
activity. I intend to take an active role in this endeavor in
the hope that it can yield an even greater return on our
investment of resources in this important area.
Mergers and Related Activities
As the Subcommittee is aware, our law enforcement efforts
regarding mergers and acquisitions also account for a large
portion of the Antitrust Division's resources. During Fiscal
Year 1983, we received nearly 2,500 notifications of mergers,
including Hart-Scott-Rodino filings and bank merger
applications, resulting in some seventy-one investigations.
The Department filed suit challenging three mergers, and
advised federal bank regulatory agencies that nine proposed
transactions would have significantly adverse effects on
competition. Seven other proposed transactions were abandoned
or restructured to eliminate our expressed competitive
concerns. In addition, a proposed joint venture involving pay
television services was abandoned following our announced
intention to challenge it. During the past fiscal year we also
obtained decrees in three merger cases, two of which were filed
during Fiscal Year 1982.
-5-
We were particularly gratified by the recent successful
resolution of one related matter to which we devoted
considerable attention during the previous fiscal year.
Several months ago, we learned that two publishers were
planning to discontinue publication of the St. Louis
Globe-Democrat and to continue publication of the St. Louis
Post-Dispatch pursuant to an amended joint newspaper operating
agreement. Following a careful study of the antitrust issues
presented, we concluded that the appropriate test for judging
the legality of that proposed action was whether the
Globe-Democrat as a free-standing newspaper satisfied the
criteria of a failing firm annunciated in Citizen Publishing
Co. V. United States, 394 U.S. 131 (1969). Accordingly, we
informed the publishers that before we would agree to their
discontinuing publication of the Globe-Democrat, they would
have to make a good faith effort to sell that newspaper to
someone prepared to continue its publication. That effort was
made, and negotiations were successfully concluded on January
12, 1984, with the announcement that the Globe-Democrat will
continue to be published through late February, when it is
scheduled to be transferred to a new owner.
The Division has made a significant contribution to merger
analysis in the promulgation of our Revised Merger Guidelines.
I intend to continue the Division's reliance on the principles
articulated in those Guidelines. One of my priorities is to
-6-
identify and to challenge mergers that would create undue
market concentration and increase the likelihood of collusion.
At the same time, however, we will avoid governmental
interference with mergers that do not pose competitive
concerns. I also intend to continue the Division's so-called
"fix it first" policy. Under this policy, the Division informs
the parties to a merger or acquisition of whatever competitive
problems have been uncovered during our investigation. If
these problems are eliminated prior to consummation of the
transaction, we will not file suit to block it. This policy
has avoided unnecessary and costly litigation while ensuring
that competitive overlaps are removed before the acquisition
takes place. Of course, if the competitive problems are not
resolved to our satisfaction, we have not and will not hesitate
to file suit to block the underlying transaction.
Monopolization and Other Forms of Predatory Conduct
Another area to which the Antitrust Division has devoted
considerable resources is our enforcement program against
activity that monopolizes or attempts to monopolize trade in
violation of Section 2 of the Sherman Act. Again, the analysis
requires a proper definition of the geographic and product
markets as to which the alleged anticompetitive activity is
directed. I should emphasize, however, that the Division's
enforcement efforts will be directed at truly anticompetitive
-7-
conduct that unreasonably threatens to eliminate competition in
particular markets. Merely "hard competition" that epitomizes
the competitive process at its keenest, and which benefits
consumers through improved goods and services at lower costs,
is highly desirable and should not be prevented.
Vertical Arrangements
The Supreme Court has recognized that the legality of most
forms of vertical arrangements between suppliers and their
customers turns on an analysis, under the rule of reason, of
their likely anticompetitive effects weighed against their
likely procompetitive, efficiency-enhancing effects. The
Court's articulation of the legal standard by which to evaluate
the legality of non-price vertical arrangements is an eminently
reasonable and workable one, and our enforcement efforts in
this area will continue fully to recognize this fact.
The exception. of course, is in the area of resale price
maintenance, to which the Court has continued to apply a test
of per se illegality. As you are aware, the Department filed
an amicus brief in Monsanto V. Spray-Rite, in which we asked
the Supreme Court to reexamine its prior holdings on this
issue. While the Division continues to believe in the merits
of the legal and economic arguments advanced in that brief, we
will enforce the law as interpreted by the Supreme Court unless
o
and until its prior interpretation is altered. Thus, we will
-8-
enforce existing legal precedent holding agreements between
manufacturers and distributors regarding the price at which the
manufacturers' products are to be resold to be unlawful
per se. a We will evaluate whether to challenge such agreements
as we do other cases, taking into account the factual
circumstances presented, the sufficiency of the evidence, the
amount of commerce involved, the likelihood that we would
prevail, and any other factors that play a part in the sound
exercise of our prosecutorial discretion.
I do not anticipate that the Division will be required to
devote a large portion of our enforcement resources in this
area. As you know, relatively few resale price agreements have
come to our attention over the years, probably due to the
deterrent effect of the per se rule and the treble damage
remedy. I would also add that the Division has, for some time,
been studying the area of vertical arrangements in great
detail. Our review is continuing, and I anticipate that we
will issue guidelines sometime this year with regard to
non-price vertical arrangements. Those will review the current
state of the law and hopefully will help advise courts and
antitrust practicioners as to our likely enforcement posture.
Mr. Chairman, before concluding I would like briefly to
touch upon three other areas in which expenditure of Division
resources can promote sound competition policy. First, the
Division will continue to devote substantial resources to the
-9-
important task of promoting competition and efficiency in key
regulated industries through advocacy before federal regulatory
agencies and the Congress of approaches that maximize
competition while achieving necessary regulatory goals. We
will continue this Administration's strong efforts to
deregulate industries that are capable of performing
competitively, and we believe continued governmental regulation
to be appropriate only where social losses from competitive
failure exceed regulatory costs. We also will continue our
efforts to secure passage of the National Productivity and
Innovation Act. As you know, that legislation is intended to
clarify and reform the antitrust and intellectual property
laws, and encourage desirable joint research and development
activities.
Second, the Division will continue its efforts to review
systematically the hundreds of outstanding decrees in
government antitrust cases to identify those decrees that may
be having anticompetitive effects, that may otherwise disserve
the public interest, or that simply no longer serve any useful
purpose. A good example is the recently terminated Safeway
decree, which was not only unnecessary but was also harmful to
consumers by deterring that company from offering legitimate
price reductions. At the same time, our review will seek to
identify other decrees that merit special enforcement attention.
-10-
We have made significant progress in this important task.
To date, we have reviewed approximately 350 decrees, have
identified approximately 250 as likely candidates for
termination or modification and have some 125 under active
investigation. Thus far, 16 decrees have been terminated or
modified by the courts as a result of this review.
Finally, the Division will continue its efforts to
systematically and effectively review private antitrust cases.
This activity is not new, for the Department historically has
been asked to provide its views on significant legal issues and
questions of statutory interpretation, principally by the
Supreme Court. Because of our strong interest that the law
evolve in a reasoned manner, we seek to identify cases that
raise issues of such general importance meriting government
participation before the Supreme Court as well as the lower
federal courts. The courts are free, of course, to accept or
reject our analysis. Our participation in appropriate selected
cases costs us relatively few resources, and I believe it will
assist the courts in assessing the antitrust issues before them
in a manner consist with principles of competition and consumer
welfare.
Mr. Chairman, I am very much looking forward to working
with you and the other members of the Subcommittee in the
coming year. I extend my sincere appreciation for your
long-standing support of the Antitrust Division's law
-11-
enforcement and competition advocacy efforts. I would, of
course, be happy to address any questions you or other members
of the Subcommittee may have.
THE WHITE HOUSE
WASHINGTON
February 7, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Draft CIA Statement (John McMahon) for
the House Intelligence Committee on
H.R. 3460 and H.R. 4431, Bills to Regulate
Public Disclosure of Information Held by CIA
OMB has asked for our views by noon today on the attached
testimony, which CIA Deputy Director McMahon proposes to
deliver tomorrow before the House Select Committee on
Intelligence. The testimony concerns H.R. 3460 and
H.R. 4431, two bills designed to exempt CIA operational
files from the Freedom of Information Act. H.R. 4431 is a
companion to S. 1324, the Administration-supported bill that
passed the Senate by unanimous consent. McMahon's testimony
is substantially the same as testimony and reports
previously cleared in the course of securing Senate passage
of S. 1324.
The testimony cites four principal reasons in support of
exempting CIA operational files from FOIA. First, review of
such files imposes an enormous burden on the agency with
practically no benefit to the public under FOIA. All the
files must be painstakingly reviewed, by properly cleared
and knowledgeable intelligence officers (not FOIA clerks),
and yet the result is almost always that nothing meaningful
can be released because of the applicability of existing
exemptions from disclosure. Exempting the files from review
under FOIA would remove the burden of processing FOIA
requests, with little loss of disclosure.
Second, an exemption from FOIA review for operational files
would help restore the confidence of CIA sources in the
ability of our government to keep a secret. At present, CIA
operatives cannot give their agents blanket assurances that
secrets will be kept, because all operational files are
subject to FOIA review. While the information can usually
be kept from disclosure by an exemption, it is far more
reassuring to be able to tell potential sources that the
files are not even subject to FOIA review.
Third, there is always the possibility of error in the FOIA
review process. Under FOIA, segregable material not subject
to an exemption must be disclosed. The usual result is
- 2 -
disclosure of a highly expurgated document. Each black mark
on a document, however, requires careful consideration, and
there is always the possibility of letting important
information slip out during review of files subject to a
FOIA request.
Finally, exempting operational files from FOIA review would
permit much quicker processing of other FOIA requests by the
agency. Again, since the laborious review of operational
files typically yields little disclosable material, the loss
to achieve this significant gain in processing other
requests is minimal.
I have reviewed the testimony and have no objections. It
is, as noted, substantially similar to previous testimony we
have cleared.
Attachment
THE WHITE HOUSE
WASHINGTON
February 7, 1984
MEMORANDUM FOR JAMES C. MURR
CHIEF, ECONOMICS-SCIENCE-GENERAL
GOVERNMENT BRANCH, OMB
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft CIA Statement (John McMahon) for
the House Intelligence Committee on
H.R. 3460 and H.R. 4431, Bills to Regulate
Public Disclosure of Information Held by CIA
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
FFF:JGR:aea 2/7/84
CC: FFFielding/JGRoberts/Subj/Chron
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
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Subject: Draj- C.I.A doement (John Mr Mahon) for
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
within
OFFICE OF MANAGEMENT AND BUDGET
SPECIAL
WASHINGTON, D.C. 20503
February 6, 1984
LEGISLATIVE REFERRAL MEMORANDUM
TO:
LEGISLATIVE LIAISON OFFICER
Department of Defense
Department of State
National Security Council
Department of Justice
SUBJECT:
Draft CIA statement (John McMahon) for the
House Intelligence Committee on H.R. 3460
and H.R. 4431, bills to regulate public
disclosure of information held by the CIA.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than
Noon - Tuesday, February 7, 1984.
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office.
James John C. Murr/for
Assistant Director for
Legislative Reference
Enclosure
CC: Ceceila Wirtz
Fred Fielding
Arnold Donahue Karen Wilson
DRAFT
2/6/84
STATEMENT OF
JOHN N. MCMAHON
DEPUTY DIRECTOR OF CENTRAL INTELLIGENCE
BEFORE THE
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES
HOUSE OF REPRESENTATIVES
ON
THE FREEDOM OF INFORMATION ACT
FEBRUARY 8, 1984
Mr. Chairman, Members of the Subcommittee on Legislation,
it is a pleasure to appear before you today to discuss H.R.
3460 introduced by you, Mr. Chairman, and H.R 4431, introduced
by Representative Whitehurst. As you know, both pieces of
legislation seek to provide relief to the CIA from some of the
most serious problems the Agency has encountered in working to
comply with the Freedom of Information Act (FOIA). And, at the
same time, both Bills are designed to ensure that the public's
access to records of the CIA is preserved. Neither bill would
totally exclude the CIA from the requirements of the FOIA, but
rather each is based on a carefully crafted approach which
would exclude from the FOIA process only our sensitive
operational files contained in three specific components of the
Agency. Removing these operational files from the FOIA search
and review process would substantially lessen the ever-present
risk that a human error might result in the exposure of
intelligence sources and methods. Most importantly, I believe
that this legislation would go far toward alleviating the
perception of our sources and potential sources that the United
States Government cannot be trusted to protect them from
exposure. At the same time, Mr. Chairman, the public would
receive improved service from the Agency under the FOIA because
requesters would no longer have to wait two to three years to
receive whatever responsive information that could be released
to them. Furthermore, it is important for everyone to
understand that enactment of this legislation would not result
in any meaningful loss of information now released under the
Act.
Mr. Chairman, last June I testified before the Senate
Select Committee on Intelligence on S. 1324, a Bill which, at
that stage, was very similar to your Bill. The problems we
have with the FOIA are no different from the ones we faced
several months ago. Therefore, my testimony before you today
will basically reiterate the points I made last summer to the
Senate. After doing so, I would also like to briefly discuss
the differences between the two Bills under consideration today.
Under present law any FOIA requester can cause a search and
review to be made in all CIA files, including operational
files, and the Agency must defend a denial of our most
sensitive information to anyone who asks for it line by line,
sometimes word by word. We, of course, attempt to assure our
sources, who live in fear of this process, that the exemptions
available under the FOIA are sufficient to protect their
identities, but that assurance is too often seen as hollow.
They ask, with justification in my view, that, in exchange for
the risks which they undertake on our behalf, we provide them
with an absolute assurance of confidentiality. So long as we
are compelled by law to treat our operational files as
potentially public documents, we are unable to provide the
iron-clad guarantee which is the backbone of an effective
intelligence service. In addition, the review of operational
files withdraws uniquely capable personnel from intelligence
operations, and compels us to violate our working principles of
good security. Let me explain these points in more detail.
For security reasons, Agency information is compartmented
into numerous self-contained file systems which are limited in
order to serve the needs of a particular component or to
accomplish a particular function. Agency personnel are given
access to specific files only on a "need to know" basis.
Operational files are more stringently compartmented because
they directly reveal intelligence sources and methods. Yet a
typical request under the FOIA will seek information on a
generally described subject wherever it may be found in the
Agency and will trigger a search which transgresses all
principles of compartmentation. A relatively simple FOIA
request may require as many as 21 Agency records systems to be
searched, a difficult request can involve over 100.
In many instances the results of these searches are
prodigious. Thousands of pages of records are amassed for
review. Here is a graphic illustration of the product of an
FOIA search (Exhibit 1). Although, in the case of records
gleaned from operational files, virtually none of this
information is released to the requester, security risks remain
which are inherent in the review process. The documents are
scrutinized line by line, word by word, by highly skilled
operational personnel who have the necessary training and
experience to identify source-revealing and other sensitive
information. These reviewing officers must proceed upon the
assumption that all information released will fall into the
hands of hostile powers, and that each bit of information will
be retained and pieced together by our adversaries in a
painstaking effort to expose secrets which the Agency is
dedicated to protect. At the same time, however, the reviewing
officer must be prepared to defend each determination that an
item of information is classified or otherwise protected under
the FOIA. Furthermore, the officer must bear in mind that
under the FOIA each "reasonably segregable" item of unprotected
information must be released. Sentences are carved into their
intelligible elements, and each element is separately studied.
When this process is completed for operational records, the
result is usually a composite of black markings, interspread
with a few disconnected phrases which have been approved for
release. Here is a typical example. (Exhibit 2)
The public derives little or nothing by way of meaningful
information from the fragmentary items or occasional isolated
paragraph which is ultimately released from operational files.
Yet we never cease to worry about these fragments. We can
never be completely certain what other pieces of the jigsaw
puzzle our adversaries already have, or what else they need to
complete the picture. Perhaps we missed the source-revealing
significance of some item. Perhaps we misplaced one of the
black markings. The reviewing officer is confronted with a
dizzying task of defending each deletion without releasing any
clue to the identity of our sources. He has no margin for
error. Those who have trusted us may lose their reputation,
their livelihood, or their lives; the well-being of their
families is at stake if one apparently innocuous item falls
into hostile hands and turns out to be a crucial lead. As long
as the process of FOIA search and review of CIA operational
files continues, this possibility of error cannot be
eradicated. The harm done to the Agency's mission by such
errors is, of course, unknown and uncalcuable. The potential
harm is, in our judgment, extreme.
Aside from this factor of human error, we recognize that
under the current Freedom of Information Act, subject to
judicial review, national security exemptions do exist to
protect the most vital intelligence information. The key
point, however, is that those sources upon whom we depend for
that information have an entirely different perception.
I will explain how that perception has become, for us, a
reality which hurts the work of the Agency on a daily basis.
The gathering of information from human sources remains a
central part of CIA's mission. In performance of this mission,
Agency officers must, in essence, establish a secret
contractual relationship with people in key positions with
access to information that might otherwise be inaccessible to
the United States Government.
This is not an easy task, nor is it quickly accomplished.
The principal ingredient in these relationship is trust. To
build such a relationship, which in many cases entails an
individual putting his life and the safety of his family in
jeopardy to furnish information to the U.S. Government, is a
delicate and time-consuming task. Often, it takes years to
convince an individual that we can protect him. Even then, the
slightest problem, particularly a breach or perceived breach of
trust, can permanently disrupt the relationship. A public
exposure of one compromised agent will obviously discourage
others.
One must recognize also that most of those who provide us
with our most valuable and, therefore, most sensitive
information live in totalitarian countries. In such places
individuals suspected of anything less than total allegiance to
the ruling party or clique can lose their lives. In societies
such as these, the concepts behind the Freedom of Information
Act are totally alien, frightening, and indeed contrary to all
that they know. It is virtually impossible for most of our
agents and sources in such societies to understand the law
itself, much less why the CIA operational files, in which their
identities are revealed, should be subject to the Act. It is
difficult, therefore, to convince one who is secretly
cooperating with us that some day he will not awaken to find in
a U.S. newspaper or magazine an article that identifies him as
a CIA spy.
Also, imagine the shackles being placed on the CIA officer
trying to convince the foreign source to cooperate with the
United States. The source, who may be leaning towards
cooperation, will demand that he be protected. He wants
absolute assurance that nothing will be given out which could
conceivably lead his own increasingly sophisticated
counter-intelligence service to appear at his doorstep. Of
course, access to operational files under FOIA is not the only
cause of this fear. Leaks, the deliberate exposure of our
people by Agee and his cohorts, and espionage activities by
foreign powers all contribute, but the perceived harm done by
the FOIA is particularly hard for our case officers to explain
because it is seen as a deliberate act of the United States
Government.
Although we try to give assurances to these people, we have
on record numerous cases where our assurances have not
sufficed. Foreign agents, some very important, have either
refused to accept or have terminated a relationship on the
grounds that, in their minds -- and it is unimportant whether
they are right or not -- but, in their minds the CIA is no
longer able to absolutely guarantee that they can be
protected. How many cases of refusal to cooperate where no
reasons are given are based on such considerations, I cannot
say. I submit, however, that knowing of numerous such cases,
there are many more instances where sources who have
discontinued relationships or reduced their information flow
have done so because of their fear of disclosure. No one can
quantify how much information vital to the national security of
the United States has been or will be lost as a result.
The FOIA also has had a negative effect on our
relationships with foreign intelligence services. Our stations
overseas continue to report increasing consternation over what
is seen as an inability to keep information entrusted to us
secret. Again, the unanswerable question is how many other
services are now more careful as to what information they pass
to the United States.
This legislation will go a long way toward relieving the
problems that I have outlined. The exclusion from the FOIA
process of operational files will send a clear signal to our
sources and to those we hope to recruit that the information
which puts them at risk will no longer be subject to the
process. They will know that their identities are not likely
to be exposed as a result of a clerical error and they will
know that the same information will be handled in a secure and
compartmented manner and not be looked at by people who have no
need to know that information. In his decision in a lawsuit
brought by Phillip Agee against the CIA, FBI, NSA, Department
of State, and Department of Justice, Judge Gerhard Gesell of
the U.S: District Court for the District of Columbia summarized
the problem this way: "It is amazing that a rational society
tolerates the expense, the waste of resources, the potential
injury to its own security which this process necessarily
entails."
At the same time, as I have explained before, by removing
these sensitive operational files from the FOIA process, the
public is deprived of no meaningful information whatosever.
The paltry results from FOIA review of operational files
are inevitable. These records discuss the describe the nuts
and bolts of sensitive intelligence operations. Consequently,
they are properly classified and are not releasable under the
FOIA. The reviewing officers who produce these masterpieces of
black markings are doing their job and doing it properly. The
simple fact is that information in operational records is by
and large exempt from release under the FOIA, and the few bits
and pieces which are releasable have no informational value.
When I speak of reviewing officers absorbed in this
process, it is important to stress that these individuals are
not and cannot be simply clerical staff or even "FOIA
professionals." In order to do their job, they must be capable
of making difficult and vitally important operational
judgments, and, consequently, most of them must come from the
heart of the Agency's intelligence cadre. Moreover, before any
item of information is released under the FOIA, the release
must be checked with a desk officer with current responsibility
for the geographical area of concern. Hence, we must not only
remove intelligence officers on a full-time basis from their
primary duties, we must also continually tap the current
personnel resources of our operating components. That is so
because we have a practice in the Operations Directorate which
requires that every piece of paper which is released, even
including those covered with black marks like the one I showed
you before, must be reviewed by an officer from the particular
desk that wrote the documents or received it from the field,
and we cannot alter this practice because the risk of
compromise is so great. You can imagine the disruption, for
example, on the Soviet desk when the people there must take
time off from the work they are supposed to do to review a
document prepared for release under the FOIA. And it is
obvious, of course, that when a CIA operation makes the front
pages of the newspapers, the FOIA requests on that subject
escalate. This loss of manpower cannot be cured by an
augmentation of funding. We cannot hire individuals to replace
those lost, we must train them. After the requisite years of
training, they are a scarce resource needed in the performance
of the Agency's operational mission.
Let me make clear that this legislation exempts from the
FOIA only specified operational files. It leaves the public
with access to all other Agency documents and all intelligence
disseminations, including raw intelligence reports direct from
the field. Files which are not exempted from search and review
will remain accessible under the FOIA even if documents taken
from an operational file are placed in them. This will ensure
that all disseminated intelligence and all matters of policy
formulated at Agency executive levels, even operational policy,
will remain accessible under FOIA. Requests concerning those
covert actions the existence of which is no longer classified
would be searched as before. And, of particular importance, a
request by a U.S. citizen or permanent resident alien for
personal information about the requester would trigger all
appropriate searches throughout the Agency.
I would also like to address the benefit to the public from
this legislation. As I mentioned earlier in my testimony, FOIA
requesters now wait two to three years to receive a final
response to their requests for information when they involve
the search and review of operational files within the
Directorate of Operations. We estimate that with enactment of
appropriate legislation the CIA could, in a reasonable time,
substantially reduce the FOIA queue. Indeed, I can assure you
that following enactment, every effort will be made to pare
down the queue as quickly as possible. This would surely be of
great benefit if the public could receive final responses from
the CIA in a far more timely and efficient manner. The public
would continue to have access to the disseminated intelligence
product and all other information in files which would not be
exempted under the terms of these Bills.
I would also like to address the issue of how it would be
possible for the American public to have access to information
concerning any Agency intelligence activity that was improper
or illegal. My firm belief is that, given the specific
guidance which we now have in Executive Orders and Presidential
directives, along with the effective oversight provided by this
Committee and its counterpart in the Senate there will not ever
again be a repeat of the improprieties of the past. And let me
assure you, as I did the members of the Senate Intelligence
Committee, that Bill Casey and I consider it our paramount
responsibility that the rules and regulations not be violated.
However, should there be an investigation by the Inspector
General's Office, the Office of General Counsel, or my own
office of any alleged impropriety or illegality, and it is
found that these allegations are not frivolous, records of such
an investigation will be found in nonexempted files. In such a
case, information relevant to the subject matter of the
investigation would be subject to search and review in response
to an FOIA request because this information would be contained
in files belonging to the Inspector General's office, for
example, and these files cannot be exempted under the terms of
the legislation before this Subcommittee. The same would be
true, for similar reasons, Mr. Chairman, whenever a senior
Intelligence Community official reports an illegal intelligence
activity to this Committee or to the Senate Intelligence
Committee pursuant to the requirements in Section 501 of the
National Security Act.
As I mentioned earlier, I testified last June before the
Senate Intelligence Committee on S. 1324, which, as introduced,
was very similar to your bill, Mr. Chairman, H.R. 3460. After
two days of testimony on that bill it was clear that there were
differences of opinion and issues which had to be addressed.
For the next five months a great deal of effort was spent by
Committee staff, Agency personnel, and interested
non-government organizations to work out solutions to the
remaining issues. Several Senators personally participated in
this process as well. Committee staff were given detailed
briefings on our records systems and inspected our files. Just
last week the staff of your Committee were given briefings on
our file systems. In addition, we responded to numerous pages
of detailed questions from the Committee as a whole, as well as
from individual Members. The result of this lengthy process
was unanimous Committee (SSCI) approval of a substitute bill
containing several amendments. These amendments were achieved
through good faith negotiations and compromise on the part of
all parties involved. S. 1324, as amended and reported out of
the Intelligence Committee, then passed the Senate by unanimous
consent. It has now been referred to your Committee. One of
the two bills you are considering today is Representative
Whitehurst's bill, H.R. 4431, which is virtually identical to
S. 1324 as passed by the Senate.
This concludes my testimony, Mr. Chairman. I have with me
the Deputy Director of the Office of Legislative Liaison,
Ernest Mayerfeld, who is prepared to answer any questions you
may have regarding the differences between the two bills. Also
with me are Deputy Director for Operations, John H. Stein,
Deputy Director for Science and Technology, R. Evan Hineman,
Director of Security, William Kotapish, and Chief, Information
and Privacy Division, Larry Strawderman. We will be pleased to
answer any specific questions you or the other Members may have.