CENTRAL INTELLIGENCE AGENCY AND WILLIAM J. CASEY, DIRECTOR OF CENTRAL INTELLIGENCE, PETITIONERS V. JOHN CARY SIMS AND SIDNEY M. WOLFE No. 83-1075 In the Supreme Court of the United States OCTOBER TERM, 1984 On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Reply Brief for the Petitioners The argument of our opening brief is staightforward: Exemption 3 of the Freedom of Information Act incorporates by reference certain statutes that authorize agencies to withhold documents; 50 U.S.C. 403(d)(3), which makes the Director of Central Intelligence responsible for protecting "intelligence sources and methods" from unauthorized disclosure, is an Exemption 3 statute; and in determining whether a document can be withheld pursuant to this provision, the term "intelligence sources" should be given its plain meaning, since there is no evidence whatever that Congress intended otherwise. Respondents' somewhat confusing brief makes a variety of arguments, but respondents do not identify anything in Section 403(d)(3) or its legislative history suggesting that Congress believed the term "intelligence sources" should be given something other than its plain meaning. Instead, respondents contend that the FOIA itself somehow mandates that the term "intelligence sources" not be given its plain meaning. /1/ Respondents also attempt to sidestep the question presented in this case -- the definition of "intelligence sources" for purposes of Section 403(d)(3) and Exemption 3 -- by asserting that they are entitled to prevail because Congress would in any event not have intended to protect the identity of MKULTRA researchers. Finally, respondents reiterate the plainly erroneous contention that Section 403(d)(3) need not be given its plain meaning because the CIA can manipulate other FOIA exemptions if it is truly determined to protect particular materials. 1. Respondents, unable to identify anything in the language or legislative history of Section 403(d)(3) that suggests that the term "intelligence sources" should not be given its plain meaning, invoke the FOIA itself in support of a "narrow" construction of Section 403(d)(3) (see Resp. Br. 2, 12, 14-18). Specifically, respondents contend that Congress's actions at the time it amended Exemption 3 in 1976 are relevant to the interpretation of Section 403(d)(3), which was enacted in 1947; and that if Section 403(d)(3) is not interpreted in the way respondents suggest, it will not qualify as an Exemption 3 statute at all. a. In our opening brief, we explained (Pet. Br. 22-24) why it is an obvious error to read the prodisclosure policies of the FOIA into the statutes incorporated by Exemption 3. Exemption 3 provides that the FOIA "does not apply to matters that are * * * specifically exempted from disclosure by statute * * * provided that such statute" meets certain criteria. 5 U.S.C. 552(b)(3). Accordingly, once it is determined that a staute meets the specified critieria, the only question is whether that statute exempts the materials in issue from disclosure. If Section 403(d)(3) is an Exemption 3 statute, the FOIA "does not apply" to any materials "exempted from disclosure by" Section 403(d)(3); once it is determined that Section 403(d)(3) is an Exemption 3 statute, the purposes and policies of the FOIA are irrelevant, and the only question is whether the Director is authorized to withhold the documents in question under Section 403(d)(3). As we noted in our opening brief, that is the way this Court has always interpreted Exemption 3. See Pet. Br. 23 n.6, citing Baldrige v. Shapiro, 455 U.S. 345 (1982), and Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102 (1980). The legislative history of Exemption 3 also confirms this point; it states that Exemption 3 "incorporat(es) by reference exemptions contained in (the) * * * statutes" that satisfy its criteria. H.R. Conf. Rep. 94-1441, 94th Cong., 2d Sess. 14 (1976) (emphasis added); see id. at 25. We know of nothing in the language or legislative history of Exemption 3 or its amendment suggesting that the exemption modifies those statutes that it incorporates. /2/ Respondents nevertheless assert (Resp. Br. 18) that the 1976 amendment to Exemption 3 was "a later development" in "an evolving scheme" that began with Section 403(d)(3). But respondents identify nothing in the legislative history of the amendment to Exemption 3 -- or anywhere else -- that reflects any intention by Congress to reconsider or modify the scope of the protection afforded by Section 403(d)(3), to narrow the Director's authority under that provision, or to give the term "intelligence sources" anything other than the meaning it had when Congress enacted Section 403(d)(3) in 1947. b. As discussed in our opening brief (Pet. Br. 15), the legislative history of Exemption 3 specifically identifies Section 403(d)(3) as one of the statutes incorporated by reference, and every court of appeals decision dealing with the issue has held that Section 403(d)(3) is an Exemption 3 statute. Respondents are careful not to deny that Section 403(d)(3) is an Exemption 3 statute. /3/ Instead, they assert that Section 403(d)(3) must be interpreted according to the definition devised by the court of appeals -- rather than according to its plain language -- or it would not be an Exemption 3 statute. Respondents never explain why this assertion is correct, however. See, e.g., Resp. Br. 12, 13, 17, 23. Exemption 3 incorporates statutes that "refer() to particular types of matters to be withheld" (5 U.S.C. 552(b)(3)(B)). Section 403(d)(3) -- interpreted, as we urge, according to its plain meaning -- authorizes the withholding of information that would reveal "intelligence sources and methods." Respondents nowhere explain why this description is insufficiently "particular"; and as we show (pages 5-6 note 3, supra), the legislative history demonstrates that Congress considered Section 403(d)(3) to be a sufficiently "particular" statute. See also Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980). /4/ Respondents assert that Section 403(d)(3), if interpreted according to its plain meaning, "would be too expansive and too discretionary to pass muster under Exemption 3" (Resp. Br. 17) and would "become () the sort of open-ended discretionary withholding statute which is now excluded from the ambit of Exemption 3(B)" (Resp. Br. 23). But neither the discretionary character nor the alleged "expansiveness" of Section 403(d)(3) prevents it from being an Exemption 3 statute. The fact that Section 403(d)(3) affords discretion only disqualifies it from being incorporated by Exemption 3(A), a provision on which we do not rely; the manifest purpose of Exemption 3(B) is to incorporate by reference certain statutes that do not require withholding but permit discretionary decisions about disclosure. See also pages 5-7 note 3, supra. Similarly, respondents' assertion that Section 403(d)(3) is "too expansive" is nothing more than an expression of respondents' disagreement with Congress's decision to grant the Director the authority to protect all intelligence sources from disclosure, without qualification. 2. Respondents also contend (Resp. Br. 18-21) that when Congress used the term "intelligence sources" in Section 403(d)(3), it did not intend to refer to persons like the MKULTRA researchers but instead "had a very different sort of 'intelligence source' in mind" (Resp. Br. 19). The best indication of what Congress "had in mind" is, of course, the plain language of the statute it enacted, and respondents do not explain why the MKULTRA researchers are not sources of intelligence within the ordinary meaning of that term. Respondents instead argue that they are entitled to prevail because scientific researchers were not specifically adverted to as potential intelligence sources in the legislative debates on the National Security Act of 1947. See, e.g., Resp. Br. 19-20. See also Resp. Supp. Br. 2, 10. /5/ But Congress, undoubtedly well aware that the gathering of intelligence is a complex matter and that intelligence techniques change over time, never purported to provide an exhaustive list of the kinds of intelligence sources it envisioned. Cf. United States v. Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 9-10. Indeed, as we noted in our opening brief (Pet. Br. 17) and as respondents acknowledge (Resp. Br. 12), the congressional discussions reveal that Congress expected that a wide variety of diverse entities might potentially serve as intelligence sources. Accordingly, Congress chose not to limit the definition of "intelligence sources" in the legislative history but rather simply authorized the Director to protect "intelligence sources and methods," without qualification. The fact that Congress did not mention scientific researchers in the legislative history is unquestionably not a reason to exclude them from the category of intelligence sources. /6/ See, e.g., Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980). Respondents' assertion that MKULTRA research was "far removed from the basic mission of the CIA" (Resp. Br. 2) simply ignores the fact that -- as we noted in our opening brief (Pet. Br. 15-16) -- the courts below had no difficulty in determining that MKULTRA research was an important aspect of the Agency's intelligence-gathering mission. The district court specifically ruled that the CIA "could reasonably determine that this research was needed for its intelligence function" (Pet. App. 11a-23a), and the court of appeals did not question that ruling. Even Judge Markey, who would have ordered the researchers' identities disclosed without further proceedings, acknowledged that "the Agency's need for research data "to perform its intelligence function effectively' has not been challenged on this record" (id. at 62a). As the courts below explained, 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 the United States. The district court ruled that "(e)ven some of the more innocuous subjects researched" under the auspices of MKULTRA were connected to the Agency's foreign intelligence mission because the Agency had a legitimate "concern that potential foreign enemies could be engaged in similar research" and "desire(d) to take effective countermeasures" (Pet. App. 22a). Judge Markey similarly explained that the Agency "has established its claimed need for the information (provided by the researchers), that is, to counter use of such drugs by potential adversaries and to develop its own capacity for their use." Id. at 62a; see also id. at 89a-90a; J.A. 29, 35. Consequently, there is no basis for respondents' assertion that MKULTRA did not involve a legitimate foreign intelligence concern. /7/ 3. Respondents are confident that the court of appeals will interpret its definition of "intelligence sources" in highly creative ways that will avoid some of the damaging results that that definition seems to dictate (see Resp. Br. 26-31). But respondents make no mention of Fitzgibbon v. CIA, 578 F. Supp. 704 (D.D.C. 1983), appeal pending, No. 84-5611 (D.C. Cir.), a decision we discussed in both the petition (Pet. 11 n.2, 15) and our opening brief (Pet. Br. 33 n.12, 37 n.14), in which the district court applied the court of appeals' definition to require the disclosure of intelligence sources in the Dominican Republic on the basis of highly speculative judgments about that nation's political system. (We note that on October 29, 1984, the court of appeals issued an order suspending briefing and further proceedings in Fitzgibbon pending this Court's decision in the present case. Respondents' self-serving predictions about the ways in which the court of appeals' definition will be construed are based on their assertion that courts will not take the definition at face value if doing so would lead to results that are inconsistent with "the practical requirements of intelligence operations" (Resp. Br. 27). Courts, however, are ill-equipped to assess the practicalities of intelligence operations; Congress has entrusted that task to the Director. Moreover, even respondents are forced to recognize that the court of appeals' definition would require the Agency to breach explicit promises of confidentiality (Resp. Br. 29); to reveal the subjects in which it is interested (Resp. Br. 31-32); and to give its sources less assurance that it will be able to protect them (Resp. Br. 33-35). /8/ Respondents' answer to these concerns appears to be that the Agency can protect highly sensitive information by classifying it and invoking Exemption 1 of the FOIA, 5 U.S.C. 552(b)(1). See, e.g., Resp. Br. 2, 6, 13, 24. It is ironic that respondents, who claim to champion the values underlying the FOIA, prescribe the classification of materials that would otherwise be left unclassified as the panacea for what they apparently agree are the unacceptable effects of the court of appeals' decision. /9/ Respondents made a similar contention in opposing our petition for a writ of certiorari, and we discussed it in our reply brief supporting the petition (Reply Br. 2-4). As we explained there, material that can reveal the identity of an intelligence source will not always be classified. Moreover, respondents' contention again loses sight of the fact that Congress itself, in enacting Section 403 (d)(3), determined that the national interest required the protection of intelligence sources and methods from unauthorized disclosure; there is no basis for imposing on the Director the further requirement that he show that the identities of the sources were properly classified, or that secrecy was needed to obtain the kind of information that a source supplied. This case involves discerning Congress's intentions in enacting a specific, comprehensive "statutory mandate" to the Director to protect intelligence sources (Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)). There is no reason whatever to believe that when Congress, in 1947, granted the Director of Central Intelligence the authority to protect "intelligence sources and methods," it also intended sub silentio to withhold or qualify that authority in important categories of cases because it envisioned that other means of maintaining secrecy might be available. See FBI v. Abramson, 456 U.S. 615, 629-630 (1982). /10/ 4. In their supplemental brief, respondents contend that the enactment on October 15, 1984 of the Central Intelligence Agency Information Act, Pub. L. No. 98-477, is a reason for this Court either to dismiss the writ of certiorari or to affirm the judgment below. We note that when respondents opposed our petition, they made a similar contention (Memo. in Opp. 12-13) about the proposed legislation that became the Central Intelligence Agency Information Act. We answered that contention in our reply brief supporting the petition (Reply Br. 7-8). As respondents acknowledge (Resp. Supp. Br. 1-2), the new legislation does not affect the legal issue presented in this case, because it in no way modifies the definition of "intelligence sources" in 50 U.S.C. 403 (d)(3). Moreover, as we have explained (Reply Br. 8), this legislation does not solve the practical problems created by the court of appeals' definition of "intelligence sources"; the new legislation partially excludes CIA operational files from the FOIA, but information pertaining to intelligence sources is found in nonoperational CIA files, and in the operational files that are not excluded as well. /11/ Respondents assert that in enacting the new legislation "Congress has eliminated any basis for the 'perception' argument upon which the CIA relies so heavily" (Resp. Supp. Br. 2), that "Congress * * * did not agree that the perception argument was a serious one" (id. at 3), and that "the perception * * * problem * * * cannot be advanced as the guiding principle for construing section 403(d)(3)" (ibid.). It is unclear what respondents mean by these vague statements. Congress of course recognized, repeatedly, that the CIA is legitimately concerned about the extent to which potential sources perceive the Agency as being unable to protect their confidences. This is hardly a controversial proposition, and the legislative history of the new Act contains abundant and unequivocal evidence that Congress endorsed it. /12/ It is therefore plainly wrong to suggest that Congress jettisoned the common sense notion that in construing Section 403(d)(3), courts should take into account the Agency's need to maintain the perception that it can be trusted to keep its sources' identities secret. Respondents are correct in asserting (Resp. Supp. Br. 6-8) that there was a disagreement among the committees of Congress that considered the new legislation on a question relating to potential intelligence sources' perception of the CIA's ability to keep their identities confidential. But that disagreement concerned whether the fact that the FOIA applies to the CIA at all gives rise to a perception among potential sources that the Agency cannot be trusted and, if so, whether that perception is warranted. Compare S. Rep. 98-305, supra, at 16 (proposing a legislative finding that "(t)he full application of the Freedom of Information Act to the Central Intelligence Agency is perceived by individuals who cooperate with the United States Government as a means by which their cooperation and the information they provide may be disclosed") and H.R. Rep. 98-726, supra, Pt. 1, at 16-17 with id. at 10 and H.R. Rep. 98-726, supra, Pt. 2, at 8. Those questions are immaterial to this case, because we have never challenged the applicability of the FOIA to the CIA. Our submission is that -- apart from any "perception" problems created by the FOIA when it is correctly construed to exempt from disclosure the identities of all sources of intelligence -- the court of appeals' decision threatens to impair the CIA's ability to give the necessary assurances to its sources, because it defines "intelligence sources" in a way that would require the disclosure of sources' identities if the Agency does not demonstrate to a reviewing court's satisfaction that it had to promise confidentiality. Nothing in the legislative history of the new statute remotely calls that proposition into question. It was understood by all concerned that the new legislation did not address the court of appeals' decision in this case or any other questions concerning the definition of "intelligence sources." /13/ For this reason, respondents' further contention (Resp. Supp. Br. 3, 8) that Congress believed the new legislation would remedy whatever "perception" problems arose from the fact that the CIA is subject to the FOIA is -- even if correct -- also irrelevant; Congress was not attempting to remedy the problems that might arise from the court of appeals' decision in this case. On the contrary, as we have previously noted (Reply Br. 8), the legislation was premised on the assumption that Exemption 3 of the FOIA and Section 403(d)(3) broadly exempt from disclosure all information that would reveal the identities of intelligence sources. See, e.g., S. Rep. 98-305, supra, at 13, 21, 21-22, 23 (quoted at Reply Br. 8); H.R. Rep. 98-726, supra, Pt. 1, at 5 ("Exemption 3 * * * exempt(s) from disclosure * * * information relating to intelligence sources and methods"); id. at 13 ("The FOIA currently contains exemptions from disclosure for agency records * * * which would compromise intelligence sources or methods, and the CIA has never been forced in litigation * * * to disclose information which the Agency believed to be within these exemptions."); id. at 15-16 ("(T)he existing Freedom of Information Act contains exemptions which would enable the CIA to withhold * * * information" that would "enable() a hostile intelligence service to identify a CIA source"); id. at 17-18; H.R. Rep. 98-726, supra, Pt. 2, at 5 ("(M)any of (the CIA's) records have always been exempt from disclosure because the information in these records * * * would reveal intelligence sources or methods."); id. at 8. CONCLUSION For these reasons and the reasons stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General STANLEY SPORKIN General Counsel Central Intelligence Agency NOVEMBER 1984 /1/ At one point, respondents "agree that an intelligence source is one who provides the CIA with a certain kind of information, namely intelligence" (Resp. Br. 11). This suggests that respondents agree with us on the question presented in the petition -- that is, they agree that the term "intelligence sources" should be given its plain meaning -- and disagree only over the application of the term to the MKULTRA researchers, a point we discuss at pages 8-10, infra. But respondents also defend, at length, the court of appeals' definition of "intelligence sources" (see Resp. Br. 21-35). That definition, of course, would not protect all those "who provide the CIA with a certain kind of information, namely intelligence"; it would protect such individuals only when the Agency can demonstrate, after the fact, that it had to guarantee confidentiality to the source in order to obtain the kind of information that was provided. /2/ Moreover, if Section 403(d)(3) were interpreted more narrowly when it is incorporated by reference in Exemption 3 than in other contexts, various anomalies would result. For example, the Director's efforts to exercise his authority directly under Section 403(d)(3) to protect information -- such as by denying information that would reveal an intelligence source to a civil litigant who sought it in discovery -- could be circumvented by the filing of an FOIA request. The Court has consistently refused to interpret the FOIA in a way that would lead to such peculiar results. See, e.g., United States v. Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 9. /3/ Respondents do take issue with our statement that the legislative history of Exemption 3 explicitly identifies 50 U.S.C. 403(d)(3) as an Exemption 3 statute. See Resp. Br. 16-17 & n.6. Respondents' reason for doing so is unclear, because they do not ever deny that Section 403(d)(3) is an Exemption 3 statute. In any event, our statement is correct. An early version of the 1976 amendment to Exemption 3 would have exempted only "matters that are * * * required to be withheld from the public by any statute establishing particular criteria or referring to particular types of information" (H.R. Rep. 94-880, 94th Cong., 2d Sess., Pt. 1, at 25 (1976) (emphasis omitted)). Congress recognized that because this language referred only to statutes that "require()" withholding, it would presumably not incorporate provisions like Section 403(d)(3), which give an agency discretion to decide whether to disclose certain materials. Accordingly, the House Judiciary Committee broadened the exemption to apply to matters that are "required or permitted to be withheld from the public by any statute establishing particular criteria or referring to particular types of information." H.R. Rep. 94-880, 94th Cong., 2d Sess., Pt. 2, at 25 (1976) (emphasis omitted). The Judicial Committee explained that the purpose of this amendment was precisely to include within Exemption 3 certain statutes that afford agencies discretion in deciding whether to withhold materials (id. at 15; footnote omitted): (U)nder the original language of this bill, a statute that permits withholding rather than actually requiring it would not come within the exception * * *. While the committee agrees that the language concerning criteria or types of information should be retained, it was felt that limiting the exemption to information required to be withheld by statute would be too restrictive. Rather, the exemption should extend to those statutes which require or permit information to be withheld from the public where the statute establishes criteria or refers to particular types of information. The committee specifically stated that Section 403(d)(3) was one of the statutes it had in mind (H.R. Rep. 94-880, supra, Pt. 2, at 15 n.2): This would clarify the fact that statutes such as 50 U.S.C. 403(d)(3) concerning security information * * * are included. This legislative history establishes two points. First, Congress considered Section 403(d)(3) to be a "statute establishing particular criteria or referring to particular types of information." Second, Congress intended to make Section 403(d)(3) an Exemption 3 statute even though the Director has discretion in making disclosure decisions. Respondents emphasize that the term "permit" was not ultimately enacted (see Resp. Br. 16-17 & n.6). But the deletion of this term did not reflect any intention by Congress to reconsider its decision to include discretionary statutes like Section 403(d)(3) within Exemption 3. It is entirely clear that Subsection 3(B) of Exemption 3 as enacted, applies to statutes that permit but do not require nondisclosure; indeed, Subsection 3(B) refers only to such statutes. In fact, the term "permit" was deleted from the proposed amended version of Exemption 3 in the course of a rewriting of the exemption that was needed for a purpose that is immaterial to this case -- to ensure that the exemption would apply to all statutes that mandate withholding. On the House floor, Rep. McCloskey successfully moved to replace the version of Exemption 3 drafted by the House Judiciary Committee with a version that closely resembles the provision that was subsequently enacted. Rep. McCloskey stated that his sole purpose in offering this amendment was to ensure that all statutes mandating nondisclosure, as well as those statutes permitting disclosure that establish specific criteria or specify particular types of information, would be incorporated by reference. 122 Cong. Rec. 24211-24213 (1976). See also 122 Cong. Rec. 28473 (1976) (remarks of Rep. Abzug). Nothing in the legislative history of this floor amendment remotely suggests that it was intended to exclude discretionary statutes in general, or Section 403(d)(3) in particular, from Exemption 3. See DeLaurentiis v. Haig, 686 F.2d 192, 195-197 (3d Cir. 1982). /4/ Indeed respondents acknowledge (Resp. Br. 16) that Section 403(d)(3) was an Exemption 3 statute before the 1976 amendment to Exemption 3, and they do not suggest that at that time only a qualified protection was afforded to "intelligence sources." It is highly unlikely that when Congress enacted the 1976 amendment it would have eliminated or substantially narrowed this sensitive and vital protection without explicitly addressing the matter in the legislative history or the statute itself. Cf. Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 572-573 (1983). Instead, the legislative history unmistakably reveals Congress's intention to continue to protect "intelligence sources" (see pages 5-7 note 3, supra). /5/ "Resp. Supp. Br." refers to respondents' Supplemental Brief on the Central Intelligence Agency Information Act. /6/ In fact, contrary to respondents' assertion (Resp. Supp. Br. 10), the legislative history of the recently enacted Central Intelligence Agency Information Act, Pub. L. No. 98-477 (enacted Oct. 18, 1984), reveals Congress's understanding that scientific researchers would be intelligence sources. See H.R. Rep. 98-726, 98th Cong., 2d Sess., Pt. 1, at 22 (1984). /7/ Respondents' suggestion (e.g., Resp. Br. 20, 30) that scientific researchers can never qualify as intelligence sources is manifestly wrong. The record contains several examples of the importance of scientists as American intelligence sources, including those scientists involved in "(t)he secret development and use of radar during World War II, as well as the secret development of nuclear weapons in the Manhattan Project" (J.A. 43). And as Director of Central Intellignece Turner explained in an affidavit filed in this litigation, "the individual who conceived the idea of a particular high altitude photographic platform utilizing previously untried technology and who offered his idea to the CIA was an intelligence source. Had his association with the CIA or the Agency's interest in his concept been revealed in an untimely fashion, the intelligence units which resulted from the development of the U-2 reconnaisance aircraft might never have been realized" (Pet. App. 88a). Respondents also assert (Resp. Br. 20) that many of the MKULTRA researchers cannot be intelligence sources because they performed their functions at universities and other institutions within the United States. But while the CIA's mission is the collection and analysis of foreign intelligence, the legislative history of Section 403(d)(3) makes explicit what common sense dictates -- that the Agency is not precluded from contacting persons located within the United States who possess information that the CIA can use in carrying out its foreign intelligence functions. See National Security Act of 1947: Hearings on H.R. 2319 Before the House Comm. on Expenditures in the Executive Departments, 80th Cong., 1st Sess. 29 (June 27, 1947) (published 1982); Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982). Finally, respondents repeatedly attempt to trivialize the intelligence value of the MKULTRA research by noting that it involved such subjects as sleight-of-hand techniques and the placebo effect (see e.g., Resp. Br. 9 n.4, 19, 20, 24-25, 27-28). As Director Turner's affidavit explained, MKULTRA was initiated because the CIA 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" (Pet. App. 89a). Accordingly, the CIA supported "comprehensive" research aimed at discovering whether a variety of substances would influence human behavior (ibid.; J.A. 29, 33). No one could predict at the time which areas of research would prove most promising, but all of it was directed toward an important foreign intelligence mission. /8/ Director Turner, in his affidavit, explained the importance of this concern to this case. See Pet. App. 91a-92a. Cf. United States v. Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 10-11 n.23. /9/ Respondents impugn the CIA's motives by suggesting that the Agency did not classify the documents at issue in this case and invoke Exemption 1 because it wished to create a "test case" (Resp. Br. 35). We note in this regard that the decision to declassify the researchers' identities was made in the summer of 1977 (Pet. App. 90a), and the complaint in this case was not filed until November 30, 1978 (J.A. 1). /10/ Respondents also frequently repeat the erroneous argument that the CIA is seeking "unreviewable" discretion to withhold documents and is in effect seeking complete exemption from the FOIA. See, e.g., Resp. Br. 7, 11, 13, 24, 33-35; Resp. Supp. Br. 3, 8-10. We have previously answered this argument. See Reply Br. 6-7; Pet. Br. 28. /11/ The new legislation does not apply to this litigation because it applies only to civil actions filed on or after February 7, 1984 (Section 4). In addition, because MKULTRA was subject to an investigation by Congress and others, under the new legislation even operational files pertaining to MKULTRA would have to be searched (Section 2(a), adding 50 U.S.C. 701(c)(3)). /12/ See, e.g., S. Rep. 98-305, 98th Cong., 1st Sess. 12 (1983) ("This bill is also crucial from a national security perspective because it will enhance confidence that intelligence sources and methods are being protected."); id. at 16; H.R. Rep. 98-726, 98th Cong., 2d Sess., Pt. 1, at 4 (1984) (One purpose of the proposed legislation was "to provide additional assurance of confidentiality to sources who assist the United States by cooperating with the Central Intellignece Agency."); id. at 6 ("The legislation will have the additional benefit() * * * of providing additional assurance to CIA intelligence sources that public access to government files under America's Freedom of Information Act poses no risk to the confidentiality of their relationship with the United States Government."); id. at 9; id. at 16 ("A potential source is willing to cooperate with the CIA only if he believes the secrecy of his relationship with the CIA will be protected. If he believes that the CIA cannot provide an ironclad guarantee of secrecy and deliver on that guarantee, he will not cooperate. The critical element in establishing and maintaining the cooperation of a source is the source's perception that he can safely cooperate with the CIA because the CIA can protect the secrecy of the relationship."); id. at 17; id. at 18; H.R. Rep. 98-726, 98th Cong., 2d Sess., Pt. 2, at 8 (1984) ("If (the new legislation) leads to any improvement in the perception of foreign sources about the ability the willingness of the CIA to protect confidential and sensitive intelligence data, this is a welcome byproduct of the legislation."). /13/ See, e.g., Legislation to Modify the Application of the Freedom of Information Act to the Central Ingelligence Agency: Hearing Before the Subcomm. on Legislation of the Permanent Select Comm. on Intelligence, 98th Cong., 2d Sess. 22, 26 (1984) (remarks of Rep. Goodling and testimony of CIA officials Mayerfeld and Moffett); id. at 43 (statement of Mark H. Lynch on behalf of the American Civil Liberties Union) ("(O)ne of the reasons this bill is not highly controversial is that it does not address the substantive scope of the FOIA's exemptions from disclosure.").