The Death Squad Protection Act

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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
       Analysis by Thomas S.
       Blanton, Michael L.
       Evans and Kate Martin
       July 17, 2000
                                                                                  Read Tom
                                                                                 Blanton's Op-
                                                                                       Ed,
                                                                                   "Seeking
                                                                                Secrecy Where
                                                                                  There Was
                                                                                  Sunshine"
                                                                               The Washington
                                                                                     Post,
                                                                                  Wednesday,
                                                                                 July 19, 2000
Released Documents      On July 13, 2000 the Senate passed a measure in the FY 2001 Defense
that would be           Authorization Act that – if approved by the full Congress – would severely
Withheld under          undercut the public's ability to obtain critical human rights information
Proposed Legislation    gathered by U.S. defense attachés (DATT) and other U.S. military
                        representatives abroad. The provision would exempt from release under the
Analysis of Proposed    Freedom of Information Act (FOIA) the "operational files" of the Defense
Legislation             Intelligence Agency (DIA). This would include most of the documents
                        produced by the Defense HUMINT Service – files that have been
Proposed Exemption      declassified routinely in the past and which in many cases contain crucial
                        information about human rights violations committed by foreign military
DIA vs. The Facts:      and intelligence units and other important information about political and
Analysis of the DIA's   military developments around the world.
Statement on the
Proposed Legislation    The DIA and the military services maintain a large number of military
                        attachés and a much smaller network of clandestine case officers to satisfy
More on the Defense     foreign intelligence requirements. The Defense HUMINT Service became
HUMINT Service          operational October 1, 1995, to consolidate the human intelligence
                        (HUMINT) capabilities of the DIA, Army, Navy, and Air Force.
CIA Information Act
of 1984                 The proposed section extends to the DIA the language of the CIA
                        Information Act of 1984, which exempted certain files in the CIA's
American Library        directorate of operations from the Freedom of Information Act on the basis
Association Opposes     of an extensive public record, multiple hearings, and specificity as to
DIA Exemption           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               If passed by the full Congress the legislation would effectively shield
       Reports on           the activities of foreign death squads, torturers and kidnappers from
       Human Rights         public scrutiny and would greatly undermine the efforts of official
       Abuses in Chile      truth commissions – many of which have been aided by the
       and Guatemala        declassification of such records – to clarify responsibility for human
                            rights violations. Below are examples of the kinds of military
       HUMINT               HUMINT reports that would be exempt from release if the Senate
       Reports on           language is included in the final bill. The first eleven documents –
       other Political      released through FOIA and special declassification projects – contain
       and Military         important information on human rights abuses committed by Chilean
       Issues               and Guatemalan security forces. The next set of documents cover a
                            range of political and military matters and are included to illustrate
       The State            the broad range of topics covered by defense intelligence operational
       Department's         reports. These records are just a small sample of the hundreds of DIA
       Electronic           HUMINT reports that the Archive has obtained. There are also many
       Reading Room         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.




Return to Index of Electronic Briefing Books
Return to National Security Archive Main Page



                                    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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