Judge Sides with CIA: You Do Not Have the Right to Read the Final Volume of the Agency’s History of the 1961 Bay of Pigs Debacle

“No information may remain classified indefinitely.” –President Obama, in Executive Order 13526.

Today Judge Gladys Kessler of the DC District Court decided the Central Intelligence Agency can withhold a volume of its history about the 1961 Bay of Pigs debacle as “predecisional” because the Agency “does not want to discourage disagreement… among its historians.”  The CIA had previously argued to the court that the history could “confuse the public” and should therefore remain withheld under the b(5) exemption.

Peter Kornbluh, director of the National Security Archive’s Cuba Documentation Project, wrote that the decision sustains the cover up of the history of the Bay of Pigs, and was a “regrettable blow to the right-to-know.”

He’s right.  Judge Kessler’s ruling is a clear setback for those who believe that they should be able to know what their government has done in their name but without their knowledge.  By accepting the CIA’s (and Department of Justice’s) arguments, the court has expanded the veil of government secrecy to include any document which any agency claims is out of line with its official story.

That’s a bad opinion and bad news for those who still believe in a government “of the people, by the people, for the people.”

Worse, it took more than eight years for the National Security Archive to receive a decision on this document.   Kessler noted, “The CIA has offered no explanation as to why it failed to provide any materials to the NSA [National Security Archive] in the five years and seven months that elapsed between acknowledgment of the FOIA request and the filing of the lawsuit.”

But she offered little rebuke and no penalty for this common Agency practice.

In her opinion, Kessler restates the CIA’s assertion that the release of this history would actually harm the public by confusing it.  She asserts: “Disclosure of a draft history would risk public release of inaccurate historical information.”  Thank you, Judge Kessler, for protecting us from confusing ourselves.

Finally, the head-scratching crux of her decision reads:

“Given the fact that, as an agency, the CIA operates in secrecy and faces relatively little public scrutiny of its operations for that reason, and given the importance of the activities and operations it undertakes, it is particularly important that in-house historians –who do have the facts– feel free to present views, theories, and critiques of the Agency’s actions.”

The obvious problem with this logic is that the author of this document –CIA Historian Dr. Jack Pfeiffer–  was actually eager to present these “views, theories and critiques” to his superiors… and also to have them released to the public.  He was so eager, in fact, he brought a FOIA lawsuit for this history’s release in 1987.  I doubt that that Agency historians are holed up in the depths of Langley, cowering in fear over the proposition that someday their histories could actually be read by interested Americans.

In actuality, the Agency (represented by the Department of Justice) is not interested in protecting the deliberative process of its historians; it is interested in preventing “unpopular” or “unorthodox” opinions from reaching the public.

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* Other thoughts on the ruling:  The b(5) exemption is often called the “withhold whatever you  want to withhold exemption” by FOIA experts. President Obama realized this when he instructed every agency (yes, even the CIA) to “usher in a new era of open government” and apply a  “presumption of disclosure… to all decisions involving FOIA.”  He instructed his the Department of Justice –responsible for enforcing FOIA throughout the government– to issue a guidance to all agencies (yes, even the CIA), that explained that the b(5) exemption should be used as sparingly as possible:

“A requested record might be a draft, or a memorandum containing a recommendation.  Such records might  be properly withheld under Exemption 5, but that should not be the end of the review.  Rather, the content of that particular draft and that particular memorandum should be reviewed and a determination made as to whether the agency reasonably foresees that disclosing that particular document, given its age, content, and character, would harm an interest protected by Exemption 5.  In making these determinations, agencies should keep in mind that mere ‘speculative or abstract fears’ are not a sufficient basis for withholding.  Instead, the agency must reasonably foresee that disclosure would cause harm…

For all records, the age of the document and the sensitivity of its content are universal factors that need to be evaluated in making a decision whether to make a discretionary release.”

It’s not clear why DOJ attorneys would agree to argue this case for the CIA, especially after Attorney General Eric Holder sent a government-wide memo which promised to defend denials of FOIA requests only when disclosures would truly harm agency interests.   What is more clear is the reason why many agencies have failed to implement the Obama FOIA reforms –the Department of Justice has done a poor job implementing them within its own divisions, and the DOJ Office of Information Policy has done a poorer job forcing other agencies to comply with the law.

* Even Presidential predecisional documents –actual working documents that decide actual policies, not histories– are barred from being withheld under “predecisional pretenses” after a period of time.  The Presidential Records Act expressly states that exemption b(5) cannot be invoked to withhold records once the president has been out of office twelve years.  If presidential communication and work process is not threatened by this provision, there is no reason that the CIA’s history staff should be.

* At a minimum Judge Kessler should have ordered the CIA to release a segregable copy of the document that redacted predecisional opinions, but left sentences which were purely factual.  (See Paisley v. CIA) Last time I checked, histories have lots of those.

* The Archive’s Peter Kornbluh makes a valid point when he writes:

“The CIA seems to have a double-standard on history when it comes to protecting its own. [] The CIA had no problem declassifying Vol. 4 of the report, also a draft, in which Pfeiffer attacked President Kennedy for his role in setting restrictions on the overt elements of what was supposed to be a covert, and “plausibly deniable” operation, and Attorney General Robert Kennedy for his role in the official commission that investigated the failed invasion, led by Gen. Maxwell Taylor.  [] Apparently, the CIA sees no problem in the American public reading a polemic of recriminations against the White House but it claims ‘historical accuracy’ as a reason to withhold documents critical of its own officials.”

* The Archive’s lawsuit did succeed in releasing three volumes of the five volume history.  One volume was released by the JFK Assassination Records Review Board.  Read them here.

* Using Judge Kessler’s logic, the recently released Zelikow Memo, which criticized the use of torture by the Bush administration, could have been withheld as a predecisional document.  It had a stamp saying “draft” at its top.