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The "Death Squad Protection" Act

Senate Measure Would Restrict Public Access to Crucial Human Rights Information Under the Freedom of Information Act

National Security Archive Electronic Briefing Book No. 34

Published – July 17, 2000

Edited by Thomas S. Blanton, Michael L. Evans and Kate Martin

For more information contact:
202/994-7000 or nsarchiv@gwu.edu

 

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Read Tom Blanton's Op-Ed,
"Seeking Secrecy Where There Was Sunshine"
The Washington Post, Wednesday, July 19, 2000

Released Documents that would be Withheld under Proposed Legislation

Analysis of Proposed Legislation

Proposed Exemption

DIA vs. The Facts: Analysis of the DIA's Statement on the Proposed Legislation

More on the Defense HUMINT Service

CIA Information Act of 1984

American Library Association Opposes DIA Exemption

Washington, D.C., July 17, 2000 – On July 13, 2000 the Senate passed a measure in the FY 2001 Defense Authorization Act that – if approved by the full Congress – would severely undercut the public's ability to obtain critical human rights information gathered by U.S. defense attachés (DATT) and other U.S. military representatives abroad.  The provision would exempt from release under the Freedom of Information Act (FOIA) the "operational files" of the Defense Intelligence Agency (DIA).  This would include most of the documents produced by the Defense HUMINT Service – files that have been declassified routinely in the past and which in many cases contain crucial information about human rights violations committed by foreign military and intelligence units and other important information about political and military developments around the world.

The DIA and the military services maintain a large number of military attachés and a much smaller network of clandestine case officers to satisfy foreign intelligence requirements.  The Defense HUMINT Service became operational October 1, 1995, to consolidate the human intelligence (HUMINT) capabilities of the DIA, Army, Navy, and Air Force.

The proposed section extends to the DIA the language of the CIA Information Act of 1984, which exempted certain files in the CIA's directorate of operations from the Freedom of Information Act on the basis of an extensive public record, multiple hearings, and specificity as to exactly which files would be covered.  Unlike the CIA Act, however, there were no public hearings on the proposed DIA exemption, no debate, no testimony, and no public record other than a misleading five-paragraph "background paper" from the DIA.  And while the CIA had argued in 1984 that the operational exemption would actually produce a net increase in released material, it is clear that the application of such an exemption to the DIA would drastically reduce the number of documents currently being released.

 

Released Documents that would be Withheld under the Proposed Legislation

Excerpt of a February 1976 report from the U.S. defense (DATT) and Air Force (AIRA) attachés in Santiago, Chile.

 
HUMINT Reports on Human Rights Abuses in Chile and Guatemala

HUMINT Reports on other Political and Military Issues

The State Department's Electronic Reading Room

    If passed by the full Congress the legislation would effectively shield the activities of foreign death squads, torturers and kidnappers from public scrutiny and would greatly undermine the efforts of official truth commissions – many of which have been aided by the declassification of such records – to clarify responsibility for human rights violations.  Below are examples of the kinds of military HUMINT reports that would be exempt from release if the Senate language is included in the final bill.  The first eleven documents – released through FOIA and special declassification projects – contain important information on human rights abuses committed by Chilean and Guatemalan security forces.  The next set of documents cover a range of political and military matters and are included to illustrate the broad range of topics covered by defense intelligence operational reports.  These records are just a small sample of the hundreds of DIA HUMINT reports that the Archive has obtained.  There are also many more of these kinds of DIA documents available at the State Department's Electronic Reading Room, including dozens of additional reports about human rights violations in Chile and Guatemala.

 


HUMINT Reports on Human Rights Abuses in Chile and Guatemala

U.S. Defense Attaché, Santiago, "DINA, Its Operations and Power," February 6, 1974.

The reporting officer ("R.O.") relates a conversation he had with an undisclosed source about a pending legal matter in Chile shortly after the military coup led by Gen. Augusto Pinochet.  Referring to a matter unrelated to intelligence, the source tells the officer that it can be accomplished as long as the Chilean National Intelligence Directorate (DINA) approves.  The source explains that there are three souces of power in Chile: "Pinochet, God, and DINA."

 

U.S. Defense Attaché, Santiago, to DIA, "Activity at Suspected Chilean Air Force Interrogation Building," February 2, 1976.

The U.S. Defense and Air Force attachés provide an eyewitness account of the beating of detainees outside a suspected Chilean Air Force interrogation building in Santiago.  The officers report that guards "armed with police type billy clubs" repeatedly struck prisoners "most frequently at the rear of knee joints."  Another source reports that one of the prisoners, a small boy, was repeatedly struck by the guards, who also banged the head of an elderly man against the wall.

 

U.S. Defense Attaché, Santiago, to DIA, "Disappearance of Eduardo and Julio Budnick," August 5, 1976.

A source confirms to the U.S. Air Force attaché that two Jewish businessmen, Eduardo and Julio Budnick, have been detained by the Chilean government.  "Based on source's position" and on information from a separate source, the reporting officer believes that the Budnicks are being held by Chilean intelligence.

 

U.S. Navy Defense Attaché, Santiago, "Covert Countersubversive Activities in Chile," November 5, 1977. [Best Copy Available]

The U.S. Defense attaché in Santiago provides information concerning recent covert intelligence operations carried out by Chilean security forces.  The operations, the source reports, are intended "to deal with the threat, real or imagined, of extremist subversion."  The report details the involvement of Chilean security forces in kidnappings and robberies designed to appear to be the work of leftist subversives, and in bombings directed against safe houses used by the left.  A source explains that the military intelligence chiefs had determined that "the best way to deal with the safe house problem was blowing them up, if possible, with the terrorists present."

 

DIA, "Suspected Presence of Clandestine Cemeteries on a Military Installation," April 11, 1994. [Guatemala]

Sources tell U.S. military intelligence officials that from 1984-86, the army's intelligence directorate (D-2) coordinated the counterinsurgency campaign in southwest Guatemala from the southern airbase at Retalhuleu, using it as both an operations post and an interrogation center.  Small buildings that were once used as interrogation cells have since been destroyed, and pits "that were once filled with water and used to hold prisoners" have been filled with concrete.  To dispose of the prisoners after interrogation, D-2 personnel would fly them out over the ocean and push them – sometimes still alive – out of the aircraft.  "In this way, the D-2 has been able to remove the majority of evidence showing that the prisoners had been tortured and killed."  Officers currently stationed at Retalhuleu wishing to grow plots of vegetables have been denied permission to cultivate certain areas "because the locations . . . were burial sites that had been used by the D-2 during the mid-eighties."

 

DIA, "The Fate of Those Captured," November 3, 1994. [Guatemala]

An informant attests that guerrillas captured by the Guatemalan military must work with military intelligence (D-2) against their former units or face summary execution.  Only those with significant "propaganda value" are paraded before the media, while most all others are interrogated extensively, and then either recruited by the D-2 or killed.  The source adds that this has been a long-standing practice that has not changed under the army's current leadership.

 

DIA, "The Rising Impact of the Bamaca Case on the Guatemalan Military Establishment," November 24, 1994. [Guatemala]

A source within the Guatemalan military describes the army's response to increasing U.S. pressure to clarify the fate of captured rebel leader Efraín Bámaca Velásquez – the husband of an American lawyer.  The army high command, the source states, has ordered military personnel to destroy any "incriminating evidence . . . which could compromise the security or status of any member of the Guatemalan military."  The destruction of documents, holding pens and interrogation facilities has already been accomplished at the Retalhuleu air base, and the army has designed a strategy to block future "United Nations investigating commissions" from entering bases to examine army files.  The author of the cable asserts that, "All written records concerning this case and probably a thousand others like it have, by now, been destroyed."

 

DIA, "Problems with Military History," February 24, 1995. [Guatemala]

The Guatemalan army vice chief of staff has reportedly prevented an army historical commission – charged with writing an official history of the internal conflict – from gaining access to the Guatemalan army archives.  In doing so, Pineda has defied orders from his immediate superiors, and is said to be working with officers from the Intelligence Directorate (D-2) "to keep ‘embarrassing' events from reaching public scrutiny."  The source is concerned "that some records may ‘disappear' as a result of BG Pineda and friends [sic] efforts."

 

Memorandum for Director of Operations, US Army Foreign Intelligence Activity, "Operational Summary of Intelligence Information [Excised] RE: Efraín Bamaca, Michael DeVine, and Colonel Julio Alpirez," April 17, 1995. [Guatemala]

 

An undisclosed source provides information on the involvement of Guatemalan Col. Julio Alpirez in the murders of U.S. citizen Michael DeVine and guerrilla commander Efraín Bámaca Velásquez, the husband of an American lawyer.  Bámaca, who was captured by the army in 1989, was placed in a full body cast to prevent escape, and later executed.  DeVine, an innkeeper, was picked-up by an army patrol investigating his ties to arms and narcotics trafficking.  He "was tortured and murdered" by one of the soldiers who reportedly "wanted to rob him of what he carried."

 

DIA, "HUMINT to Suffer with Loss of Military Commissioners," July 20, 1995. [Guatemala]

A source tells the reporting officer that a recent decision by the Guatemalan president to disband a nation-wide network of civilian intelligence informants will dramatically weaken the army's HUMINT capability.  The military commissioners have historically "formed the backbone of the G-2's HUMINT networks," but have also been involved in activities "which could have been labeled as illegal by current human rights standards," such as "the elimination of individuals viewed to be a threat to the government and the army."

 

DIA, "Transition of the Military Commissioners," August 29, 1995. [Guatemala]

Although the network of some 35,000 Guatemalan military commissioners is to be formally decommissioned [see previous document], more than 25,000 will be secretly retained as "army collaborators" and "will continue to have an invisible role within the army."  This arrangement, according to the source, "allows the army total deniability if and when they are asked if the military commissioners have been totally disbanded."

 


HUMINT Reports on other Political and Military Issues

Below are examples of defense intelligence operational reports obtained through the Freedom of Information Act on a range of other subjects.  Such information, routinely declassified in the past, would also be withheld under the proposed legislation.

 

DIA, "Various Attitudes on MLA" [Military Coup in Pakistan], Ca. July 1977.

U.S. Defense Attaché, Moscow, "Sov[iet] Communist Party Member's Views on Polish Crisis," October 22, 1980.

U.S. Defense Attaché, Bucharest, "Soviet Estimates on Polish Intervention Forces," November 4, 1980.

U.S. Defense Attaché, Moscow, "Chinese View on Polish Crisis," November 18, 1980.

U.S. Defense Attaché, Bonn, "Weekend of 28-29 March Ominous for Poland," March 27, 1981.

U.S. Defense Attaché, Belgrade, "Yugoslavia/Military Intelligence Chief Comments on Poland and Kosovo," April 7, 1981.

DIA, "Nicaragua: Refugee Exodus," August 22, 1983.

Commander, U.S. Army Operations Group, "Iranian Travel Controls," May 29, 1986.

Commander, U.S. Army Operations Group, "Impact of the Stinger Missile on Soviet and Resistance Tactics in AF [Afghanistan]," Ca. 1987.

DIA, "[Pakistan's] Nuclear Industry," Ca. 1987.

DIA, [Alleged Transfer of Patriot Missile Technology from Israel to China], March 26, 1992.

DIA, "Cuban Facilities Associated with Biotechnology," March 1993.

DIA, "Biological and Chemical Defense [in Cuba]," March 1992.

DIA, "Members of the Cuban Biological Front," March 1992.

 


Further Information on the Defense HUMINT Service

For more information on the evolution and consolidation of the Defense HUMINT Service see, Richelson, Jeffrey T., "From MONARCH EAGLE to MODERN AGE: The Consolidation of U.S. Defense HUMINT," International Journal of Intelligence and Counterintelligence, Vol.10, No.2, pp. 131-164.

Chart: Country and Subjects of Army HUMINT Intelligence Information Reports, FY 1992-93
Sources: Office of the Deputy Chief of Staff for Intelligence, Annual Historical Review, 1 October 1991 to 30 September 1992 (Washington, D.C.: ODCSI, 1995), pp. 4-3 and 4-18; Office of the Deputy Chief of Staff for Intelligence, Annual Historical Review, 1 October 1992 to 30 September 1993 (Washington, D.C.: ODCSI 1995), pp. 4-32 to 4-43.  Table compiled by Jeffrey T. Richelson.

 

Defense HUMINT Service Organizational Chart
Source: DIA Unclassified release.

 


Proposed Legislation

S.2549
National Defense Authorization Act for Fiscal Year 2001
(passed by the Senate July 14, 2000)
SEC. 1045. PROTECTION OF OPERATIONAL FILES OF THE DEFENSE INTELLIGENCE AGENCY.

(a) Authority.--Subchapter I of chapter 21 of title 10, United States Code, is amended by adding at the end the following:

"Sec. 426. Protection of sensitive information: operational files of the Defense Intelligence Agency

"(a) Authority To Withhold Operational Files.--The Secretary of Defense may withhold from public disclosure operational files described in subsection (b) to the same extent that operational files may be withheld under section 701 of the National Security Act of 1947 (50 U.S.C. 431), subject to judicial review under the same circumstances and to the same extent as is provided in subsection (f) of such section.

"(b) Decennial Review of Exempted Operational Files.--Section 702 of the National Security Act of 1947 (50 U.S.C. 432), setting forth requirements for decennial review of exemptions from public disclosure and related provisions for judicial review shall apply with respect to the exemptions from public disclosure that are in force under subsection (a), subject to the following requirements:

"(1) The Secretary of Defense shall conduct the decennial review under this subsection.
"(2) In the application of the judicial review provisions under subsection (c) of such section 702--
"(A) the references to the Central Intelligence Agency shall be deemed to refer to the Secretary of Defense; and
"(B) the reference in paragraph (1) of that subsection to the period for the first review shall be deemed to refer to the 10-year period beginning on the day after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2001.
"(c) Operational Files Defined.--In this section, the term 'operational files' has the meaning given that term in section 701(b) of the National Security Act of 1947 (50 U.S.C. 431(b)), except that the references to elements of the Central Intelligence Agency do not apply.''.

(d) Clerical Amendment.--The table of sections at the beginning of such subchapter is amended by adding at the end the following:

"426. Protection of sensitive information: operational files of the Defense Intelligence Agency.''.

The CIA Information Act of 1984
Full text as amended to the National Security Act of 1947 [50 U.S.C., Title VII]

Sec. 701. Exemption of certain operational files from search, review, publication, or disclosure

(a) Exemption by Director of Central Intelligence
Operational files of the Central Intelligence Agency may be exempted by the Director of Central Intelligence from the provisions of section 552 of title 5 (Freedom of Information Act) which require publication or disclosure, or search or review in connection therewith.

(b) ''Operational files'' defined
For the purposes of this title the term ''operational files'' means -

(1) files of the Directorate of Operations which document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services;
(2) files of the Directorate for Science and Technology which document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems; and
(3) files of the Office of Personnel Security which document investigations conducted to determine the suitability of potential foreign intelligence or counterintelligence sources; except that files which are the sole repository of disseminated intelligence are not operational files.
(c) Search and review for information
Notwithstanding subsection (a) of this section, exempted operational files shall continue to be subject to search and review for information concerning -
(1) United States citizens or aliens lawfully admitted for permanent residence who have requested information on themselves pursuant to the provisions of section 552 of title 5 (Freedom of
Information Act) or section 552a of title 5 (Privacy Act of 1974);
(2) any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of title 5 (Freedom of Information Act); or
(3) the specific subject matter of an investigation by the intelligence committees of the Congress, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of Central Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.
(d) Information derived or disseminated from exempted operational files
(1) Files that are not exempted under subsection (a) of this section which contain information derived or disseminated from exempted operational files shall be subject to search and review.
(2) The inclusion of information from exempted operational files in files that are not exempted under subsection (a) of this section shall not affect the exemption under subsection (a) of this section of the originating operational files from search, review, publication, or disclosure.
(3) Records from exempted operational files which have been disseminated to and referenced in files that are not exempted under subsection (a) of this section and which have been returned to exempted operational files for sole retention shall be subject to search and review.
(e) Supersedure of prior law
The provisions of subsection (a) of this section shall not be superseded except by a provision of law which is enacted after October 15, 1984, and which specifically cites and repeals or modifies its provisions.

(f) Allegation; improper withholding of records; judicial review
Whenever any person who has requested agency records under section 552 of title 5 (Freedom of Information Act), alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with any provision of this section, judicial review shall be available under the terms set forth in section 552(a)(4)(B) of title 5, except that -

(1) in any case in which information specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign relations which is filed with, or produced for, the court by the Central Intelligence Agency, such information shall be examined ex parte, in camera by the court;
(2) the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties;
(3) when a complaint alleges that requested records were improperly withheld because of improper placement solely in exempted operational files, the complainant shall support such allegation with a sworn written submission, based upon personal knowledge or otherwise admissible evidence;
(4) (A) when a complainant alleges that requested records were improperly withheld because of improper exemption of operational files, the Central Intelligence Agency shall meet its burden
under section 552(a)(4)(B) of title 5 by demonstrating to the court by sworn written submission that exempted operational files likely to contain responsive records currently perform the functions set forth in subsection (b) of this section; and
(B) the court may not order the Central Intelligence Agency to review the content of any exempted operational file or files in order to make the demonstration required under subparagraph (A) of this paragraph, unless the complainant disputes the Central Intelligence Agency's showing with a sworn written submission based on personal knowledge or otherwise admissible evidence;
(5) in proceedings under paragraphs (3) and (4) of this subsection, the parties shall not obtain discovery pursuant to rules 26 through 36 of the Federal Rules of Civil Procedure, except that requests for admission may be made pursuant to rules 26 and 36;
(6) if the court finds under this subsection that the Central Intelligence Agency has improperly withheld requested records because of failure to comply with any provision of this section, the court shall order the Central Intelligence Agency to search and review the appropriate exempted operational file or files for the requested records and make such records, or portions thereof,
available in accordance with the provisions of section 552 of title 5 (Freedom of Information Act), and such order shall be the exclusive remedy for failure to comply with this section; and
(7) if at any time following the filing of a complaint pursuant to this subsection the Central Intelligence Agency agrees to search the appropriate exempted operational file or files for the requested records, the court shall dismiss the claim based upon such complaint.


Sec. 702. Decennial review of exempted operational files

(a) Review by Director of Central Intelligence
Not less than once every ten years, the Director of Central Intelligence shall review the exemptions in force under subsection (a) of section 431 of this title to determine whether such exemptions may be removed from any category of exempted files or any portion thereof.

(b) Consideration; historical value; public interest
The review required by subsection (a) of this section shall include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.

(c) Judicial review
A complainant who alleges that the Central Intelligence Agency has improperly withheld records because of failure to comply with this section may seek judicial review in the district court of the United States of the district in which any of the parties reside, or in the District of Columbia. In such a proceeding, the court's review shall be limited to determining (1) whether the Central Intelligence Agency has conducted the review required by subsection (a) of this section within ten years of enactment of this title or within ten years after the last review, and (2) whether the Central Intelligence Agency, in fact, considered the criteria set forth in subsection (b) of this section in conducting the required review.

 

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