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Limits to Transparency

by Larry Hancock , 20 Jan 2016

It seems that the issue of government transparency is constantly in the headlines. A casual reader might think that the government holds all its secrets until someone like Edward Snowden risks jail time by disclosing classified information. The reality is a good bit different and considerably more complex.

Legislation such as the Freedom of Information Act (FOIA) and the JFK Records Act allowed the release of a tremendous amount of information to the public. Literally millions of pages of once classified documents are now online in internet sources such as the National Security Archive and the Mary Ferrell Foundation. Historians will be writing for decades from the materials in those collections - ranging from the political assassinations and covert operations of the Cold War years [1] to the Iraq War and beyond. [2] Even technical details of extremely secret military projects such as the early American spy satellites - once held under the strictest classification of "sensitive/compartmentalized" - have been released and are becoming the subject of general interest articles. [3]

The details of the laws which restrict information are open to the general public, as is the national security legislation behind those laws, dating back to the earliest years of the Cold War in 1947 and 1948. The key legal elements controlling information release are contained in Title 50, Chapter 44 of the U.S. legal code. That language proscribes the authority and actions required for protecting national security materials. [4] The code clearly gives intelligence agencies the legal authority, even despite the FOIA, to withhold identities and personnel information as well as any and all information relating to undercover activities - in particular any files and documents designated as dealing with intelligence operations. That legal protection has been interpreted as applying to all agencies conducting intelligence activities, including the CIA, NSA, FBI and military intelligence groups. The protection is extended not just to information related to agency employees and their activities, but also to the agencies' intelligence sources and informants. Practices related to both human and technical collections are rigorously protected.

We know what the restrictions are, and we also know that even with those restrictions much of previously secret history is legally becoming public. So what's the problem? The fundamental issue lies in the fact that the legal code only tells us what agencies such as the CIA are directed and authorized to do in regard to security; it gives no insight into the actual guidelines used or the personal decision-making involved in the process. Some release actions appear inconsistent and arbitrary - such as the CIA's ongoing fight to withhold a number of CIA documents related to George Joannides, an officer involved with Cuban exiles reportedly in contact with Lee Oswald during the summer of 1963. Joannides failed to inform two separate Congressional investigations about those contacts, even when assigned as the CIA liaison to the House Select Committee on Assassinations. Decades later the Agency continues to fight a protracted legal battle to avoid releasing even redacted versions of the documents. [5] The only thing we know is that whatever security standards are being cited in the Joannides case, the result remains that judges involved in the legal battle have generally sided with the CIA.

The reality of Freedom of Information Act (FOIA) requests is that they often proceed simply by trial and error - a document is requested, then denied, the denial is challenged, counter challenges are submitted and in some instances the document (with extensive or sometimes even no redactions) may ultimately be obtained. It can be frustrating and time-consuming for both the requesters and the FOIA staff at the government agencies. It seems that some historical insight into the history of actual document release practice might well help all those involved with the process.

The good news is that information pertaining to the actual process, standards and decisions on document requests can actually be found within the internal agency memoranda involved with the review and release process. Of course with literally millions of documents involved, we still need clues to finding those particular pieces of correspondence. In November of 2015, one of those clues emerged, following the passing of a senior CIA officer who had served a key role in the CIA's release of documents over more than four decades.

His obituary tells us that Charles (Chuck) Briggs Sr. joined the CIA in 1952 and retired in 1986, being brought back as a consultant immediately after retirement and working for the Agency into the 1990's. His professional specialty was administration, and he held positions in all four of the CIA's directorates, serving as Comptroller, Director of Services Staff, Inspector General, Executive Director and Congressional Liaison. In June 1983, while serving as Executive Director, he had the unique distinction of briefly being designated as the Acting Director of Central Intelligence (DCI) and Acting Deputy Director (DDCI), serving in all 3 positions concurrently. [6]

During his tenure, Briggs became very involved with the CIA records systems, including both administrative and operational files. During the Congressional committee inquiries of the 1970's he was personally involved with responding to freedom of information requests as well as in clearing documents for the Church committee inquiry into intelligence practices and the House Select Committee on Assassinations. Dozens of Briggs-related documents are now available and they provide insight into routine CIA document actions such as requests for information on Martin Luther King [7] and E. Howard Hunt. [8] Some of the documents simply provide clues to the offices and individuals involved with responding to such requests; others offer more interesting details.

For example, during the Watergate scandal, a reporter requested documents pertaining to Howard Hunt's domestic travel while employed by the Agency - Hunt was a prime figure in the scandal and known to be a long term CIA employee. At the time one of the major questions about Watergate had to deal with any potential connection between the Agency and Hunt following his "official" retirement. Briggs responded to the Hunt travel documents request by noting that Hunt was indeed assigned to the CIA Domestic Operations group (DO) for a period of time but that office held no travel records. Travel documents were available in the Office of Finance but Briggs offered the opinion that the FOIA request be denied on the basis of protecting Hunt's personal privacy as well as the practical point that when all information relating to operational data was removed, the resulting documents would be "useless" to the requestor. [9]

Other documents are even more revealing. In 1976, following the dismissal of long-time Counter Intelligence chief James Angleton, Briggs inventoried and evaluated all CIA counter intelligence (CI) files including those held outside the standard CIA operational records system. Those records appear to have been assembled by former CI Chief Angleton. Angleton's materials contained information considered to be sensitive/compartmentalized - too sensitive to handle within the integrated filing system. In reading Briggs' report, it appears that such sensitive records would not have been available for search and release to the 1964 Warren Commission inquiry on the Kennedy assassination - the Presidential Commission to which Angleton himself served as CIA liaison.

Briggs' memorandum on the processing of the Counter Intelligence files in question describes a body of documents of over four hundred feet in length. [10] The integration task was estimated to require three full time staff and a part time supervisor to evaluate the files. Overall almost twelve person-years would be required for the job, which actually took some four calendar years to perform. The work was only partially complete as of late 1979. Content which would be too sensitive to integrate into the headquarters filing system was described in an annex to Brigg's report; the circulation of that annex attachment was restricted even within the counter intelligence group. It seems reasonable to conclude that key information in Angleton's files remained beyond the view of any of the Congressional agency investigations of the 1970's - and restricted from any subsequent release requests.

Beyond providing information on what records were not available to the official government investigations of the 1960's and 1970's, Briggs' activities also reveal that in certain instances the CIA feels compelled to withhold information from the American legal system. In 1983, former CIA officer Edwin Wilson had been convicted of selling explosives to Libya and sentenced to 17 years in prison. In his defense, Wilson had pleaded that his activities had actually been sanctioned intelligence collection by the CIA and that he had routinely been contacting and taking assignments from the Agency, even though no longer officially an employee.

The CIA adamantly denied any operational connection to Wilson. Officially acting for the Agency, Briggs submitted a statement to the Court that no documents existed suggesting any such relationship between the CIA and Wilson. The statement specifically asserted that Wilson had not performed any tasks for or provided any services to the Agency, either directly or indirectly. There had been no Agency contact with him since 1972. Following filing of the statement in his trial, Wilson was convicted.

Wilson filed an appeal to his conviction and eventually his lawyer (a former CIA officer) was allowed access to CIA files held by the Justice Department. The lawyer was able to support Wilson's appeal with documents showing at least eighty occasions where Wilson had been in communication with and undertaken tasks for the CIA following his official departure from the Agency. Documents also revealed that lawyers at both the CIA and Justice knew that Briggs' trial statement was untrue. They were also aware they had a duty to disclose that to the trial judge, but did not do so. [11]

A study of Briggs' work in decades of CIA document control is proving informative for a number of reasons, revealing not only the process and criteria applied to releasing documents to individuals and government, but also highlighting issues in providing information to the American justice system. The Wilson case illustrates the fact that if information is considered to have operational sensitivity, it will simply not be released - and actively denied to exist.

As a long term gatekeeper of CIA records, Briggs' career extended far beyond his actual service years. Upon retirement he became an "annuitant", an officially retired CIA officer still on the payroll and available for assignments. We don't have a listing of all those assignments - yet - but we do know he was called back to work on documents being released under the JFK Records Act and in response the work of the Assassinations Records Review Board in the 1990's.

Briggs' obituary also lists another very interesting project - serving as "liaison for creation of the Sixth Floor Museum in Dallas, Texas, dedicated to the JFK Assassination." [12] Understanding that particular assignment has also proved to be quite educational - but that's a story in itself.

- Larry Hancock, author

- Chris Newton, document research


NOTES

[1] The Mary Ferrell Foundation maintains an electronic archive of over 1 million pages of formerly-classified documents at www.maryferrell.org/pages/Documents.html. Short "Starting Points" essays provide a useful gateway to this vast archive; see www.maryferrell.org/pages/Starting_Points.html.

[2] The Iraq War Ten Years After, The National Security Archives
http://nsarchive.gwu.edu/NSAEBB/NSAEBB418/

[3] Dwayne A. Day, "Ike's Gambit: The Development of the KH-7 and KH-8 Satellites", The Space Review, January 5, 2009

[4] Title 50, U.S. Code Section 3141 - Operational Files of the Central Intelligence Agency
https://www.law.cornell.edu/uscode/text/50/chapter-44/subchapter-V

[5] Jefferson Morley, "Who Was George Joannides and Why Is His Story Important?", JFKFacts
http://jfkfacts.org/assassination/who-was-george-joannides-and-why-is-his-story-important/

[6] Charles A. Briggs Sr., Obituary Notice, Washington Post
http://www.legacy.com/obituaries/washingtonpost/obituary.aspx?n=charles-a-briggs&pid=176359949&fhid=17018#sthash.qbuQXzQ5.dpuf

[7] Memorandum for Chief, Information and Privacy Staff, Weisberg FOIA request on MLK and James Earl Ray, August 24, 1976, Mary Ferrell Foundation
http://www.maryferrell.org/showDoc.html?docId=59737&search=%22Charles_Briggs%22#relPageId=2&tab=page

[8] Memorandum for Chief, Information and Privacy Staff, Request for E. Howard Hunt's Records While in Domestic Operations Division, August 30, 1976, Mary Ferrell Foundation
http://www.maryferrell.org/showDoc.html?docId=58793&relPageId=2&search=%22Charles_Briggs%22

[9] Request for E Howard Hunt's Travel Records While on Domestic Operations, NARA Record Number: 1993.07.12.15:41:00:000280, August 30, 1976
http://www.maryferrell.org/showDoc.html?docId=58793&relPageId=2&search=%22Charles_Briggs%22

[10] Memorandum for Chief, Counter Intelligence Staff, Memorandum for the Record Dated 4 February 1976, Mary Ferrell Foundation
http://www.maryferrell.org/showDoc.html?docId=16066&search=%22Charles_Briggs%22#relPageId=3&tab=page>

[11] "Peter Carlson, International Man of Mystery", The Washington Post, June 22, 2003
http://www.washingtonpost.com/wp-dyn/articles/A59212-2004Jun21_4.html

[12] Charles A. Briggs Sr., Obituary Notice, Washington Post
http://www.legacy.com/obituaries/washingtonpost/obituary.aspx?n=charles-a-briggs&pid=176359949&fhid=17018#sthash.qbuQXzQ5.dpuf

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