The CIA has denied that it has any information about intelligence budget-line items earmarked for Israel between 1990 and 2015—a claim which a federal judge in Washington DC has dismissed as “neither logical nor plausible.”
According to a report by the Courthouse News Service (“CIA Hammered After Shrug on Israel Records”), the ruling came in response to a Freedom of Information Act request from the director of the Institute for Research: Middle Eastern Policy who asked for the information back in March 2015.
Citing the underlying complaint, U.S. District Judge Tanya Chutkan says Grant Smith originally sought “the information ‘for use in vital public interest research into how nuclear weapons related know-how, material and technology have been unlawfully diverted into Israeli entities conducting clandestine nuclear weapons-related research and development.’”
In response to Smith’s request, the CIA issued what is known as a Glomar response, neither confirming or denying the existence of such information.
On April 21, hoping to avoid a public hearing, Justice Department legal counsel Joseph Borson made a second attempt to get Chutkan to dismiss the CIA aid FOIA lawsuit. (PDF)
Avoiding entirely the topic of whether the CIA is providing intelligence support to Israel, Borson argued that because there are “17 separate intelligence agencies,” it was wrong for Chutkan to assume definitively that the CIA had any budget data on Israel.
In an attached affidavit, Chief Management Officer of the Director of National Intelligence Mark W. Ewing cautioned that if the court forced the CIA to go beyond a “GLOMAR” response (neither confirming nor denying such information exists) it would reveal too much. (PDF)
“If the CIA were to confirm or deny that a portion of its individual Agency intelligence budget relates to Israel, it would tend to show whether or not the intelligence assistance provided was related to HUMINT (a CIA area of expertise).”
One way to overcome a Glomar response is to show that the information sought already exists in the public domain, however, and Chutkan said President Barack Obama himself helps Smith on this point.
“The fact is,” Obama had said during a speech at American University, “partly due to American military and intelligence assistance, which my administration has provided at unprecedented levels, Israel can defend itself against any conventional danger.”
Smith had pointed to the statement as evidence that the records he sought do in fact exist.
In his official reaction to the ruling, Smith wrote that on August 5, 2015, President Barack Obama quantified the possible dollar value boundaries of intelligence aid during a speech at American University, claiming “…due to American military and intelligence assistance, which my administration has provided at unprecedented levels, Israel can defend itself against any conventional danger…”
Given historic military aid is publicly known, secret intelligence aid to Israel in 2015 was either an additional $1.9 billion per year or $13.2 billion if the president adjusted for inflation. These are the amounts Obama would have had to provide to meet “unprecedented” combined levels of military and intelligence assistance, Smith said.
The judge went on to say that the CIA failed to show that Obama’s comment was general, did not mention line items specifically, and failed to specify “financial or budgetary support.”
“The inferences available from President Obama’s statement are (1) that the CIA provides intelligence support to Israel, and (2) that it therefore must have some means of appropriating funds to do so, meaning that the budget line items must exist,” the 8-page ruling states.
It is possible Obama had been referring to nonmonetary assistance, Chutkan allowed, but she said that is also something for which the agency would have to budget.
“Information sharing, training, or anything else that might constitute ‘intelligence assistance’ other than direct financial support would cost the CIA money to provide or perform,” the ruling says.
“The CIA must have a budget line item for expenses that it incurs; even if the budget is secret or classified or subject to FOIA’s exemptions, it must exist in order for the CIA to operate,” the opinion continues.
Chutkan drew a parallel from the case to the D.C. Circuit’s ruling in ACLU v. CIA. In the latter case, public statements made by Obama administration officials about drone strikes rendered it impossible for the agency to issue a Glomar response about its records related to drones use in targeted killings.
“Similarly, in this case, it is ‘neither logical nor plausible’ that the CIA does not have budget line items related to intelligence assistance for Israel,” Chutkan wrote.
“This may make the percentage of total U.S. aid received by Israel jump from an average of 9 percent over the past four years to 20–30 percent, or even more, of the total foreign aid pie.
This worries many within the Israel lobby who wish to obscure how disproportionate it has become.