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CIA must disclose some operational files

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information         Aug 19, 2002    

CIA must disclose some operational files

  • A Washington, D.C., reporter may view operational files on mind control experiments by the Central Intelligence Agency, a federal district court ruled in early August.

A federal district court in Washington, D.C., August 8 granted reporter John F. Kelly limited but highly unusual access to some Central Intelligence Agency operational files in his request for records concerning the federal government’s mind control experiments of the 1950s.

Judge Thomas Hogan ruled that the CIA must search and review its operational files for information concerning the MKULTRA project, and make all releasable information from those files available to Kelly.

MKULTRA was the government’s attempt begun in 1953 to respond to “brainwashing” activities attributed to Soviet and Chinese governments by conducting drug and other behavior modification experiments on unwitting victims. It involved more than 149 subprojects contracted out to 80 institutions.

Under the CIA Intelligence Act of 1984 Congress allowed the CIA to simply exclude its operational files from Freedom of Information Act processing in exchange for its promise to greatly improve its pace for responding to FOI requests for other, less sensitive, files.

However, that act specifically stated that the CIA could not claim the operational files exclusion when an FOI request concerned a matter that had been investigated by intelligence committees in Congress, the Intelligence Oversight Board, or specific, named, investigatory offices at the CIA or the Department of Justice.

Because the MKULTRA program has been the subject of numerous investigations by Congress, the CIA and the Justice Department, the CIA must search its operational files for records on it and grant Kelly access to those that are not exempt, Hogan ruled.

In briefs to the court, neither Kelly nor the CIA cited any other cases in which the statutory exclusion of operational files had been set aside because of previous governmental investigations. The government interprets the statute as authorizing it to pretend that records which are requested but excludable simply do not exist. Only those requesters who actually know of this practice realize that they can challenge the government for withholding records that it will not admit it has.

Kelly, author of “Tainted Evidence,” a book about the FBI’s failures to preserve evidence, has written earlier articles about victims of the MKULTRA program.

In December 2000, he asked for all information showing CIA connections with the University of Cincinnati and the University of California at Los Angeles. The CIA refused to confirm or deny the existence of records that might reveal covert relationships but ultimately released some records showing an overt relationships between the agency and the schools, claiming several exemptions to withhold portions of the records. Kelly sued.

The court allowed the agency to refuse to confirm or deny that responsive records concerning covert activities exist and allowed it to withhold other information under the FOI Act’s exemptions for classified records, for records protected by other statutes and for privileged information. The court’s sole concession to Kelly was for a chance to see operational files on a subject that had been investigated.

Few of the MKULTRA records still exist. Then CIA Director Richard Helms, who as a deputy 20 years earlier initiated the MKULTRA project, ordered records of it destroyed before his retirement in 1973. However, an FOI request for them in 1977 uncovered 16,000 pages of financial records on the project that had been overlooked.

The U.S. Supreme Court in 1985 in CIA v. Sims ruled that intelligence sources who had been guaranteed confidentiality on the MKULTRA projects would remain secret.

(Kelly v. CIA; Media Counsel: Dan Alcorn, Vienna, Va.) RD

© 2002 The Reporters Committee for Freedom of the Press

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