Judgement n. 471 by the United States Supreme Court of Justice on the protection of intelligence sources’ identity - GNOSIS

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Per Aspera Ad Veritatem n.13

Judgement n. 471 by the United States Supreme Court of Justice on the protection of intelligence sources’ identity.
Argued December 4, 1984

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In No. 83-1075, we granted certiorari to decide whether 102(d)(3) of the National Security Act of 1947, as incorporated in Exemption 3 of the Freedom of Information Act, exempts from disclosure only those sources of intelligence information to which the Central Intelligence Agency had to guarantee confidentiality in order to obtain the information. In No. 83-1249, the cross-petition, we granted certiorari to decide whether the Freedom of Information Act requires the Agency to disclose the institutional affiliations of persons whose identities are exempt from disclosure as "intelligence sources."

I

Between 1953 and 1966, the Central Intelligence Agency financed a wide-ranging project, code-named MKULTRA, concerned with "the research and development of chemical, biological, and radiological materials capable of employment in clandestine operations to control human behavior (1) ." The [471 U.S. 159, 162] program consisted of some 149 subprojects which the Agency contracted out to various universities, research foundations, and similar institutions. At least 80 institutions and 185 private researchers participated. Because the Agency funded MKULTRA indirectly, many of the participating individuals were unaware that they were dealing with the Agency.
MKULTRA was established to counter perceived Soviet and Chinese advances in brainwashing and interrogation techniques. Over the years the program included various medical and psychological experiments, some of which led to untoward results (2) . These aspects of MKULTRA surfaced publicly during the 1970's and became the subject of executive and congressional investigations (3) .
On August 22, 1977, John C. Sims, an attorney, and Sidney M. Wolfe, M.D., the director of the Public Citizen [471 U.S. 159, 163] Health Research Group (4) , filed a request with the Central Intelligence Agency seeking certain information about MKULTRA. Respondents invoked the Freedom of Information Act (FOIA), 5 U.S.C. 552. Specifically, respondents sought the grant proposals and contracts awarded under the MKULTRA program and the names of the institutions and individuals that had performed research (5) .
Pursuant to respondents' request, the Agency made available to respondents all of the MKULTRA grant proposals and contracts. Citing Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3)(B) (6) , however, the Agency declined to disclose the names of all individual researchers and 21 institutions (7) . Exemption 3 provides that an agency need not disclose "matters that are . . . specifically exempted from disclosure by statute . . . provided that such statute . . . refers to particular [471 U.S. 159, 164] types of matters to be withheld." Ibid. The Agency relied on 102(d)(3) of the National Security Act of 1947, 61 Stat. 498, 50 U.S.C. 403(d)(3), which states that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."
Dissatisfied with the Agency's limited disclosure, respondents filed suit under the FOIA, 5 U.S.C. 552(a)(4)(B), in the United States District Court for the District of Columbia. That court ordered disclosure of the withheld names, holding that the MKULTRA researchers and affiliated institutions were not "intelligence sources" within the meaning of 102(d)(3). 479 F. Supp. 84 (1979).
On appeal, the United States Court of Appeals concluded, as had the District Court, that 102(d)(3) qualifies as a withholding statute under Exemption 3 of the FOIA. The court held, however, that the District Court's analysis of that statute under the FOIA lacked a coherent definition of "intelligence sources." Accordingly, it remanded the case for reconsideration in light of the following definition: "[A]n ‘intelligence source' is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it." 206 U.S. App. D.C. 157, 166, 642 F.2d 562, 571 (1980).
On remand, the District Court applied this definition and ordered the Agency to disclose the names of 47 researchers and the institutions with which they had been affiliated.

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The court then turned to the question whether the Agency could show, as the Court of Appeals' definition requires, that it could not reasonably have expected to obtain the information supplied by the MKULTRA sources without guaranteeing confidentiality to them. The court concluded that the Agency's policy of considering its relationships with MKULTRA researchers as confidential was not sufficient to satisfy the Court of Appeals' definition because "the chief desire for confidentiality was on the part of the CIA." Id., at 24a. The court recognized that some of the researchers had sought, and received, express guarantees of confidentiality from the Agency, and as to those held that their identities need not be disclosed. The court also exempted other researchers from disclosure on the ground that their work for the Agency, apart from MKULTRA, required that their identities remain secret in order not to compromise the Agency's intelligence networks in foreign countries. Id., at 26a-27a, 30a-31a. Finally, the cou
rt held that there was no need to disclose the institutional affiliations of the individual researchers whose identities were exempt from disclosure; this withholding was justified by the need to eliminate the unnecessary risk that such intelligence sources would be identified indirectly. Id., at 27a, 34a.
Both the Agency and respondents appealed. The Court of Appeals affirmed that part of the District Court's judgment exempting from disclosure the institutional affiliations of individual researchers found to be intelligence sources. However, it reversed the District Court's ruling with respect to which individual researchers satisfied "the need-for-confidentiality" aspect of its formulation of exempt "intelligence sources." 228 U.S. App. D.C. 269, 275, 709 F.2d 95, 101 (1983). [471 U.S. 159, 166].
At the outset, the court rejected the suggestion that it reconsider the definition of "intelligence sources." Id., at 271, 709 F.2d, at 97. The court then criticized the District Court for focusing its inquiry on whether the Agency had in fact promised confidentiality to individual researchers. The court held that the District Court's decision automatically to exempt from disclosure those researchers to whom confidentiality had been promised was erroneous; it directed the District Court on remand to focus its inquiry on whether the Agency offered sufficient proof that it needed to cloak its efforts in confidentiality in order to obtain the type of information provided by the researcher. Only upon such a showing would the individual qualify as an "intelligence source" exempt from disclosure under the FOIA (8) .
We granted certiorari 465 U.S. 1078 (1984) and 467 U.S. 1240 (1984). We now reverse in part and affirm in part.

II

A
The mandate of the FOIA calls for broad disclosure of Government records (9) . Congress recognized, however, that [471 U.S. 159, 167] public disclosure is not always in the public interest and thus provided that agency records may be withheld from disclosure under any of the nine exemptions defined in 5 U.S.C. 552(b). Under Exemption 3 disclosure need not be made as to information "specifically exempted from disclosure by statute" if the statute affords the agency no discretion on disclosure, 552(b)(3)(A), establishes particular criteria for withholding the information, or refers to the particular types of material to be withheld, 552(b)(3)(B).
The question in No. 83-1075 is twofold: first, does 102(d)(3) of the National Security Act of 1947 constitute a statutory exemption to disclosure within the meaning of Exemption 3; and second, are the MKULTRA researchers included within 102(d)(3)'s protection of "intelligence sources."

B
Congress has made the Director of Central Intelligence "responsible for protecting intelligence sources and methods from unauthorized disclosure." 50 U.S.C. 403(d)(3). As part of its postwar reorganization of the national defense system, Congress chartered the Agency with the responsibility of coordinating intelligence activities relating to national security (10) . In order to carry out its mission, the Agency was expressly entrusted with protecting the heart of all intelligence operations - "sources and methods."
Section 102(d)(3) of the National Security Act of 1947, which calls for the Director of Central Intelligence to protect "intelligence sources and methods," clearly "refers to particular types of matters," 5 U.S.C. 552(b)(3)(B), and thus qualifies as a withholding statute under Exemption 3. The "plain meaning" of the relevant statutory provisions is sufficient to resolve the question, see, e. g., Garcia v. United [471 U.S. 159, 168] States, 469 U.S. 70, 75 (1984); United States v. Weber Aircraft Corp., 465 U.S. 792, 798 (1984). Moreover, the legislative history of the FOIA confirms that Congress intended 102(d)(3) to be a withholding statute under Exemption 3 (11) . Indeed, this is the uniform view among other federal courts (12) .
Our conclusion that 102(d)(3) qualifies as a withholding statute under Exemption 3 is only the first step of the inquiry. Agency records are protected under 102(d)(3) only to the extent they contain "intelligence sources and methods" or if disclosure would reveal otherwise protected information.

C
Respondents contend that the Court of Appeals' definition of "intelligence sources," focusing on the need to guarantee confidentiality in order to obtain the type of information desired, draws the proper line with respect to intelligence sources deserving exemption from the FOIA. The plain meaning of the statutory language, as well as the legislative history of the National Security Act, however, indicates that Congress vested in the Director of Central Intelligence very [471 U.S. 159, 169] broad authority to protect all sources of intelligence information from disclosure. The Court of Appeals' narrowing of this authority not only contravenes the express intention of Congress, but also overlooks the practical necessities of modern intelligence gathering - the very reason Congress entrusted this Agency with sweeping power to protect its "intelligence sources and methods."

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The "plain meaning" of 102(d)(3) may not be squared with any limiting definition that goes beyond the requirement that the information fall within the Agency's mandate to conduct foreign intelligence. Section 102(d)(3) does not state, as the Court of Appeals' view suggests, that the Director of Central Intelligence is authorized to protect intelligence sources only if such protection is needed to obtain information that otherwise could not be acquired. Nor did Congress state that only confidential or nonpublic intelligence sources are protected (13) . Section 102(d)(3) contains no such limiting language. Congress simply and pointedly protected all sources [471 U.S. 159, 170] of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence. The plain statutory language is not to be ignored. Weber Aircraft Corp., supra, at 798.
The legislative history of 102(d)(3) also makes clear that Congress intended to give the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections the Agency would be virtually impotent.
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Against this background highlighting the requirements of effective intelligence operations, Congress expressly made the Director of Central Intelligence responsible for "protecting intelligence sources and methods from unauthorized disclosure." This language stemmed from President Truman's Directive of January 22, 1946, 11 Fed. Reg. 1337, in which he established the National Intelligence Authority and the Central Intelligence Group, the Agency's predecessors. These institutions were charged with "assur[ing] the most effective accomplishment of the intelligence mission related to the national security," ibid., and accordingly made "responsible [471 U.S. 159, 173] for fully protecting intelligence sources and methods," id., at 1339. The fact that the mandate of 102(d)(3) derives from this Presidential Directive reinforces our reading of the legislative history that Congress gave the Agency broad power to control the disclosure of intelligence sources.

III

A
Applying the definition of "intelligence sources" fashioned by the Congress in 102(d)(3), we hold that the Director of Central Intelligence was well within his statutory authority to withhold the names of the MKULTRA researchers from disclosure under the FOIA. The District Court specifically ruled that the Agency "could reasonably determine that this research was needed for its intelligence function," (14) and the Court of Appeals did not question this ruling. Indeed, the record shows that the MKULTRA research was related to the Agency's intelligence-gathering function in part because it revealed information about the ability of foreign governments to use drugs and other biological, chemical, or physical agents in warfare or intelligence operations against adversaries. During the height of the cold war period, the Agency was concerned, not without reason, that other countries were charting new advances in brainwashing and interrogation techniques (15) .
Consistent with its responsibility to maintain national security, the Agency reasonably determined that major research [471 U.S. 159, 174] efforts were necessary in order to keep informed of our potential adversaries' perceived threat. We thus conclude that MKULTRA researchers are "intelligence sources" within the broad meaning of 102(d)(3) because these persons provided, or were engaged to provide, information the Agency needs to fulfill its statutory obligations with respect to foreign intelligence.
Respondents' belated effort to question the Agency's authority to engage scientists and academic researchers as intelligence sources must fail. The legislative history of 102(d)(3) indicates that Congress was well aware that the Agency would call on a wide range and variety of sources to provide intelligence. Moreover, the record developed in this case confirms the obvious importance of scientists and other researchers as American intelligence sources. Notable examples include those scientists and researchers who pioneered the use of radar during World War II as well as the group which took part in the secret development of nuclear weapons in the Manhattan Project. See App. 43; App. to Pet. for Cert. in No. 83-1075, p. 88a (16) .
B
The Court of Appeals narrowed the Director's authority under 102(d)(3) to withhold only those "intelligence sources" who supplied the Agency with information unattainable without guaranteeing confidentiality. That crabbed reading of the statute contravenes the express language of 102(d)(3), the statute's legislative history, and the harsh realities of the present day. The dangerous consequences of that narrowing of the statute suggest why Congress chose to vest the [471 U.S. 159, 175] Director of Central Intelligence with the broad discretion to safeguard the Agency's sources and methods of operation.
The Court of Appeals underestimated the importance of providing intelligence sources with an assurance of confidentiality that is as absolute as possible. Under the court's approach, the Agency would be forced to disclose a source whenever a court determines, after the fact, that the Agency could have obtained the kind of information supplied without promising confidentiality (17) . This forced disclosure of the identities of its intelligence sources could well have a devastating impact on the Agency's ability to carry out its mission. "The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp v. United States, 444 U.S. 507, 509, n. 3 (1980) (per curiam). See Haig v. Agee, 453 U.S. 280, 307 (1981). If potentially valuable intelligence sources come to think that the Agency will be unable to maintain the confidentiality of its relat
ionship to them, many could well refuse to supply information to the Agency in the first place.
Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to "close up like a clam." To induce some sources to cooperate, the Government must tender as absolute an assurance of confidentiality as it possibly can. "The continued availability of [intelligence] sources depends upon the CIA's ability to guarantee the security of information [471 U.S. 159, 176] that might compromise them and even endanger [their] personal safety." Snepp v. United States, supra, at 512.

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The Court of Appeals also failed to recognize that when Congress protected "intelligence sources" from disclosure, it was not simply protecting sources of secret intelligence information. As noted above, Congress was well aware that secret agents as depicted in novels and the media are not the typical intelligence source; many important sources provide intelligence information that members of the public could also obtain. Under the Court of Appeals' approach, the Agency could not withhold the identity of a source of intelligence if that information is also publicly available. This analysis ignores the realities of intelligence work, which often involves seemingly innocuous sources as well as unsuspecting individuals who provide valuable intelligence information.
Disclosure of the subject matter of the Agency's research efforts and inquiries may compromise the Agency's ability to gather intelligence as much as disclosure of the identities of intelligence sources. A foreign government can learn a great deal about the Agency's activities by knowing the [471 U.S. 159, 177] public sources of information that interest the Agency. The inquiries pursued by the Agency can often tell our adversaries something that is of value to them. See 228 U.S. App. D.C., at 277, 709 F.2d, at 103 (Bork, J., concurring in part and dissenting in part). For example, disclosure of the fact that the Agency subscribes to an obscure but publicly available Eastern European technical journal could thwart the Agency's efforts to exploit its value as a source of intelligence information. Similarly, had foreign governments learned the Agency was using certain public journals and ongoing open research projects in its MKULTRA research of "brainwashing" and possible countermeasures, they might have been a
ble to infer both the general nature of the project and the general scope that the Agency's inquiry was taking (18) .

C
The "statutory mandate" of 102(d)(3) is clear: Congress gave the Director wide-ranging authority to "protec[t] intelligence sources and methods from unauthorized disclosure." Snepp v. United States, supra, at 509, n. 3. An intelligence source provides, or is engaged to provide, information the Agency needs to fulfill its statutory obligations. The record establishes that the MKULTRA researchers did in fact provide the Agency with information related to the Agency's intelligence function. We therefore hold that the Director was authorized to withhold the identities of these researchers from disclosure under the FOIA.

IV

The cross-petition, No. 83-1249, calls for decision on whether the District Court and the Court of Appeals correctly [471 U.S. 159, 178] ruled that the Director of Central Intelligence need not disclose the institutional affiliations of the MKULTRA researchers previously held to be "intelligence sources." Our conclusion that the MKULTRA researchers are protected from disclosure under 102(d)(3) renders unnecessary any extended discussion of this discrete issue.

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Here the Director concluded that disclosure of the institutional affiliations of the MKULTRA researchers could lead to identifying the researchers themselves and thus the disclosure posed an unacceptable risk of revealing protected "intelligence sources (19) ."

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The District Court, in a ruling affirmed by the Court of Appeals, permitted the Director to withhold the institutional affiliations of the researchers whose identities were exempt from disclosure on the ground that disclosure of "the identities of the institutions... might lead to the indirect disclosure of" individual researchers. App. to Pet. for Cert. in No. 83-1075, p. 27a. This conclusion is supported by the record (20) . The Director reasonably concluded that an observer [471 U.S. 159, 180] who is knowledgeable about a particular intelligence research project, like MKULTRA, could, upon learning that research was performed at a certain institution, often deduce the identities of the individual researchers who are protected "intelligence sources." The FOIA does not require disclosure under such circumstances.

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The national interest sometimes makes it advisable, or even imperative, to disclose information that may lead to the identity of intelligence sources. And it is the responsability of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unaccetable risk of compromising the Agency's intelligence-gathering process.

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V

We hold that the Director of Central Intelligence properly invoked 102(d)(3) of the National Security Act of 1947 to withhold disclosure of the identities of the individual MKULTRA researchers as protected "intelligence sources." We also hold that the FOIA does not require the Director to disclose the institutional affiliations of the exempt researchers in light of the record which supports the Agency's determination that such disclosure would lead to an unacceptable risk of disclosing the sources' identities.
Accordingly, we reverse that part of the judgment of the Court of Appeals regarding the disclosure of the individual researchers and affirm that part of the judgment pertaining to disclosure of the researchers' institutional affiliations.
It is so ordered.

(*) Abstract by the Editors of the most significant passages of Decision n. 471 U.S. 159 of 1985 adopted by the U.S. Supreme Court relating to intelligence sources protection by the Central Intelligence Agency (CIA). On this subject the District Court of Columbia Circuit had previously expressed itself and such decision was subsequently impugned by both the appellants before the Court of Appeal for the District of Columbia Circuit.
The complete text of the Decision is available at the following Internet address: http://caselaw.findlaw.com.
(1) Final Report of the Select Committee to Study Government Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, Book I, p. 389 (1976) (footnote omitted) (Final Report). MKULTRA began with a proposal [471 U.S. 159, 162] from Richard Helms, then the Agency's Assistant Deputy Director for Plans. Helms outlined a special funding mechanism for highly sensitive Agency research and development projects that would study the use of biological and chemical materials in altering human behavior. MKULTRA was approved by Allen Dulles, then the Director of Central Intelligence, on April 13, 1953.
(2) Several MKULTRA subprojects involved experiments where researchers surreptitiously administered dangerous drugs, such as LSD, to unwitting human subjects. At least two persons died as a result of MKULTRA experiments, and others may have suffered impaired health because of the testing. See id., at 392-403. This type of experimentation is now expressly forbidden by Executive Order. Exec. Order No. 12333, 2.10, 3 CFR 213 (1982).
(3) See generally Final Report, at 385-422, 471-472; Report to the President by the Commission on CIA Activities Within the United States 226-228 (June 1975); Project MKULTRA, the CIA's Program of Research in Behavioral Modification: Joint Hearings before the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977); Human Drug Testing by the CIA, 1977: Hearings on S. 1893 before the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977).
An internal Agency report by its Inspector General had documented the controversial aspects of the MKULTRA project in 1963. See Report of Inspection of MKULTRA (July 26, 1963).
(4) Sims and Wolfe are the respondents in No. 83-1075 and the cross-petitioners in No. 83-1249. In order to avoid confusion, we refer to Sims and Wolfe as respondents throughout this opinion.
(5) Twenty years after the conception of the MKULTRA project, all known files pertaining to MKULTRA were ordered destroyed. Final Report, at 389-390, 403-405. In 1977, the Agency located some 8,000 pages of previously undisclosed MKULTRA documents. These consisted mostly of financial records that had inadvertently survived the 1973 records destruction. Upon this discovery, Agency Director Stansfield Turner notified the Senate Select Committee on Intelligence and later testified at a joint hearing before the Select Committee and the Subcommittee on Health and Scientific Resources of the Senate Committee on Human Resources. Although the Joint Committee was given a complete list of the MKULTRA researchers and institutions, the Committee honored the Agency's request to treat the names as confidential. Respondents sought the surviving MKULTRA records that would provide this information.
(6) The Agency also cited Exemption 6, 5 U.S.C. 552(b)(6), which insulates from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." This claim, rejected by the District Court and the Court of Appeals, is no longer at issue.
(7) The Agency tried to contact each institution involved in MKULTRA to ask permission to disclose its identity; it released the names of the 59 institutions that had consented. Evidently, the Agency made no parallel effort to contact the 185 individual researchers. See n. 22, infra.
(8) Judge Bork wrote a separate opinion, concurring in part and dissenting in part. He criticized the majority's narrow definition of "intelligence sources," urging in particular that there is "no reason to think that section 403(d)(3) was meant to protect sources of information only if secrecy was needed in order to obtain the information." 228 U.S. App. D.C., at 277, 709 F.2d, at 103. He noted that "[i]t seems far more in keeping with the broad language and purpose of [403(d)(3)] to conclude that it authorizes the nondisclosure of a source of information whenever disclosure might lead to discovery of what subjects were of interest to the CIA." Ibid. He also took issue with the majority's conclusion that the FOIA sometimes requires the Agency to break a promise of confidentiality it has given to an intelligence source. This is "not an honorable way for the government of the United States to behave," and would produce "pernicious results." Id., at 276-277, 709 F.2d, at 102-103.
(9) The Court has consistently recognized this principle. See, e. g., Baldrige v. Shapiro, 455 U.S. 345, 352 (1982); NLRB v. Robbins Tire & (471 U.S. 159, 167) Rubber Co., 437 U.S. 214, 220 (1978); EPA v. Mink, 410 U.S. 73, 80 (1973).
(10) See, e. g., H. R. Rep. No. 961, 80th Cong., 1st Sess., 3 (1947); S. Rep. No. 239, 80th Cong., 1st Sess., 1 (1947).
(11) See H. R. Rep. No. 94-880, pt. 2, p. 15, n. 2 (1976). See also H. R. Conf. Rep. No. 93-1380, p. 12 (1974); S. Conf. Rep. No. 93-1200, p. 12 (1974); S. Rep. No. 93-854, p. 16 (1974). For a thorough review of the relevant background, see DeLaurentiis v. Haig, 686 F.2d 192, 195-197 (CA3 1982) (per curiam).
Recently, Congress enacted the Central Intelligence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209, exempting the Agency's "operational files" from the FOIA. The legislative history reveals that Congress maintains the position that 102(d)(3) is an Exemption 3 statute. See, e. g., H. R. Rep. No. 98-726, pt. 1, p. 5 (1984); S. Rep. No. 98-305, p. 7, n. 4 (1983).
(12) See, e. g., Miller v. Casey, 235 U.S. App. D.C. 11, 15, 730 F.2d 773, 777 (1984); Gardels v. CIA, 223 U.S. App. D.C. 88, 91, 689 F.2d 1100, 1103 (1982); Halperin v. CIA, 203 U.S. App. D.C. 110, 113, 629 F.2d 144, 147 (1980); National Comm'n on Law Enforcement and Social Justice v. CIA, 576 F.2d 1373, 1376 (CA9 1978).
(13) Congress certainly is capable of drafting legislation that narrows the category of protected sources of information. In other provisions of the FOIA and in the Privacy Act, Congress has protected "confidential source[s]," sources of "confidential information," and sources that provided information under an express promise of confidentiality. See 5 U.S.C. 552(b)(7)(D), 552a(k)(2) and (5).
(14) App. to Pet. for Cert. in No. 83-1075, pp. 22a-23a.
(15) For example, Director of Intelligence Stansfield Turner explained in an affidavit that the MKULTRA program was initiated because the Agency was confronted with "learning the state of the art of behavioral modification at a time when the U.S. Government was concerned about inexplicable behavior of persons behind the 'iron curtain' and American prisoners of war who had been subjected to so called 'brainwashing.'" Id., at 89a.
(16) Indeed, the legislative history of the recently enacted Central Intelligence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209, in which Congress exempted the Agency's "operational files" from disclosure under the FOIA, 50 U.S.C. 431 (1982 ed., Supp. III), reveals Congress' continued understanding that scientific researchers would be valuable intelligence sources. See H. R. Rep. No. 98-726, pt. 1, p. 22 (1984).
(17) Indeed, the Court of Appeals suggested that the Agency would be required to betray an explicit promise of confidentiality if a court determines that the promise was not necessary, or if a court concludes that the intelligence source to whom the promise was given was "unreasonably and atypically leery" of cooperating with the Agency. 228 U.S. App. D.C., at 273, 709 F.2d, at 99. However, "[g]reat nations, like great men, should keep their word." FPC v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting).
(18) In an affidavit, Director of Central Intelligence Turner stated that "[t]hroughout the course of the [MKULTRA] Project, CIA involvement or association with the research was concealed in order to avoid stimulating the interest of hostile countries in the same research areas." App. to Pet. for Cert. in No. 83-1075, pp. 89a-90a.
(19) During the congressional inquiries into MKULTRA, then Director of Central Intelligence Turner notified the 80 institutions at which MKULTRA research had been conducted. Many of these institutions had not previously been advised of their involvement; Director Turner notified them as part of "a course of action [designed to] lead to the identification of unwitting experimental subjects." Id., at 92a, n. 1. As a result of inquiries into the MKULTRA program, many of these institutions disclosed their involvement to the public. Others advised the Agency that they had no objection to public disclosure. Director Turner disclosed the names of these institutions; he did not disclose the names of any institutions that objected to disclosure. See n. 7, supra.
(20) For example, an affidavit filed by an Agency operations officer familiar with MKULTRA stated that disclosure of the institutions at which MKULTRA research was performed would pose "a threat of damage to existing intelligence-related arrangements with the institutions or exposure of past relationships with the institutions." App. 27.