Larry Berman: Appeals Lower Court Decision Withholding Two 40-Year-Old Memos to LBJ





Washington D.C., January 19, 2006 - A federal district judge's opinion last year ordering more secrecy for two almost 40-year-old CIA memos to President Johnson contradicted Supreme Court precedent and the plain language of the Freedom of Information Act, as well as time limits on presidential privilege set in the Presidential Records Act, according to the appeal filed yesterday with the U.S. Court of Appeals for the Ninth Circuit by University of California, Davis professor Larry Berman.

Represented by Thomas Burke and Duffy Carolan of Davis Wright Tremaine LLP, and by Meredith Fuchs of the National Security Archive at George Washington University, Professor Berman sought declassification review and release of two President's Daily Briefs prepared by the CIA for President Johnson during the Vietnam War, one from the day before and one from the day after two other Briefs that had previously been declassified by the CIA.

In response, the CIA argued - and U.S. district judge David Levi upheld CIA's claims - that, regardless of their age and content, no Briefs could be released even in part without damage to U.S. national security and to the presidential privilege of confidential communications with advisers. During the same month in which Professor Berman filed his legal complaint, however, the CIA actually declassified two other LBJ-era Briefs when they appeared in cable format rather than on President's Daily Brief letterhead.

Judge Levi declined to review the two Briefs at issue in the case, ignored the millions of pages of declassified and published CIA intelligence products already available (including 35 other declassified Briefs introduced into the record by Professor Berman), and ruled that the Briefs are themselves an "intelligence method" that must be protected. Attorney Duffy Carolan commented, "Judge Levi's decision offers no logical distinction between the CIA's secret methods of gathering intelligence and the intelligence product it prepares for its customers. It essentially ignores 40 years of FOIA history and practice."

Judge Levi also ruled that presidential privilege still applies to the LBJ-era briefs, despite the Supreme Court's finding in the Nixon tapes cases that privilege erodes over time, and Congress's clear finding in the 1978 Presidential Records Act that the privilege no longer applies 12 years after the president leaves office.

"This case is not about revealing intelligence sources and methods," remarked Professor Berman, a noted Vietnam War scholar. "This case is about whether the CIA can declare its factual briefings to the president, no matter how old and no matter what they say, off limits to history and to the American public, forever and without review."

A number of noted scholars of the American Presidency and the Vietnam War, as well as the nation's leading history and political science associations, are planning to file an amicus curiae brief on January 25 in support of Professor Berman's appeal.


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