Should the CIA's budget be secret? Three former CIA directors say no -- disclosure of the total amount of CIA spending would not harm national security, as long as individual budget items were kept secret.
Currently, the House of Representatives and the Senate are deciding on whether the sum, but not the details, of intelligence spending should be public.
In a sense, the outcome will not change anything, because the total budget is already known: as reported in the Washington Post, next year's appropriation will be $30 billion, up from $29 billion this year.
But in a constitutional sense, the vote is very important. The constitution mandates: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."
That constitutional command is unequivocal: "No" means no.
During the Cold War, however, Congress kept the CIA budget secret. That unconstitutional concealment was not necessary. Canada, Britain and even Israel make their intelligence budgets public. During World War II, Congress and the president adhered to the Constitution, by making public the budget of the Office of Strategic Services (the predecessor to the CIA).
Today, with the Cold War won, there is no plausible risk from disclosing the overall intelligence budget. That was the unanimous conclusion of the Brown-Aspin commission, which was created by Congress to study intelligence budget issues. The conclusion is shared by former CIA directors Turner, Gates and Deutch.
When the disclosure issue came up on the floor of the Senate in June, Republican Senator Richard Shelby of Alabama successfully led the opposition. He argued that terrorist states could analyze budget trends to discover American intelligence capabilities.
But the Brown-Aspin commission, as well as the three retired CIA directors, specifically refuted that argument. They pointed out that no foreign state could learn anything useful by merely looking at the overall budget total or yearly budget trends.
More fundamentally, Senator Shelby's argument proves too much. If Congress can violate one provision of the Constitution because of a remote threat that a foreign enemy might learn something, why not violate the rest of the Constitution? Why not censor any newspaper article from which a terrorist state might glean information? Why not ban all guns, since somebody might sell one to a hostile foreign government's agents?
The Constitution tells us that in the long run, government in secret is far more dangerous than is the disclosure of information.
Senator Shelby also pointed to a 1974 Supreme Court case, United States v. Richardson, in which a taxpayer had brought suit demanding a line-item disclosure of the entire CIA budget.
In that case, the Court's 5-4 majority wrote, "We need not and do not reach the merits of the constitutional attack on the [secrecy] statute." Rather, the Court dismissed Richardson's suit by holding that no taxpayer had legal standing to bring a suit to enforce the "Statement and Account" requirement of the Constitution.
In dicta in a footnote, the majority suggested that the Statement and Account clause could be interpreted "to permit some degree of secrecy of governmental operations."
The Brown-Aspin commission does not disagree. The commission recommended that line items in the CIA budget remain secret. The only issue is a Statement and Account of the total budget.
The Statement and Account clause was not originally a controversial part of the Constitution. It was widely regarded as providing an important check on potential abuses. In the Virginia Ratifying Convention, George Mason stated that certain government information (such as diplomatic correspondence) might need to be secret, but "he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a right to know the expenditures of their money."
In the Richardson case, the only justice who addressed the merits of the Statement and Account clause in detail was William O. Douglas, whose dissent was one of his typically energetic defenses of the first principles of limited government and individual liberty.
Justice Douglas wrote that "Congress of course has discretion; but to say that it has the power to read the clause out of the Constitution when it comes to one or two or three agencies is astounding." If Congress can withhold the entirety (not just the details) of the CIA budget, can the Congress then "withhold 'a regular Statement and Account' respecting any agency it chooses?"
"The sovereign in this Nation is the people, not the bureaucracy," Justice Douglas reminded us. "The statement of accounts of public expenditures goes to the heart of the problem of sovereignty. If taxpayers may not ask that rudimentary question, their sovereignty becomes an empty symbol and a secret bureaucracy is allowed to run our affairs."
As Justice Douglas understood, the Statement and Account clause is designed not for the pleasure of accountants but for the preservation of democracy: "The public cannot intelligently know how to exercise the franchise unless it has a basic knowledge concerning at least the generality of the accounts under every head of government."
In practice, intelligence spending has suffered from precisely the kinds of waste, fraud and abuse that are inevitable when total secrecy prevails. CIA spending has ballooned 80 percent in real dollars since 1980, even though the demise of the Soviet Union vastly reduces intelligence needs.
The CIA's National Reconnaissance Office, which operates spy satellites, bought itself a luxurious $300 million complex with 14 extra acres not authorized by Congress. The office has $4 billion in unspent funds, of which it has lost $2 billion!
Disclosure of the total intelligence budget, Senator Shelby complained, would lead to political pressure to reduce the budget of course. That is what the Constitution requires: the public must know how much its servant the government is spending so that the public may choose to reduce or increase spending of its money.
If the possibility of political demands for reduced spending could justify violating the Statement and Accounts clause, then the defense budget, or any other agency budget, could also be secret.
But our Constitution provides many interlocking controls to protect us from the dangers of what the Framers called the Standing Army and President Eisenhower called the Military-Industrial Complex. One of the core protections is that the United States shall not have government in secret.
The policy questions raised by disclosure of intelligence or military spending have already been conclusively answered by the Constitution. The Constitution tells us that in the long run, government in secret is far more dangerous than is the disclosure of information. The congressional vote on adhering to the Statement and Account clause will be a good indication of whether this Congress means what it told the voters about its fidelity to the Constitution and its commitment to open government.