Prominent Historians, Political Scientists Urge Court to Reverse Lower Court Decision Withholding Two 40-Year-Old Memos to LBJ
The nation's leading history and political science associations, along with a number of prominent scholars of the Presidency and the Vietnam War, yesterday filed an amicus brief in a lawsuit brought by University of California, Davis, Professor Larry Berman. The case involves Berman's effort to obtain release under the Freedom of Information Act of two almost 40-year-old CIA memos to President Johnson.
Represented by Matthew W.S. Estes, the scholars seek to alert the United States Court of Appeals for the Ninth Circuit to the broad implications of the lower court’s ruling.
In the lower court, U.S. District Judge David Levi held that the CIA may categorically refuse to review for release all President's Daily Briefs, in perpetuity, regardless of their content, because the intelligence reports are a protected intelligence method. Attorney Matthew Estes commented, "Judge Levi's expansive ruling could reverse 40 years of access to historical CIA intelligence products. The decision is not required by the Freedom of Information Act or court precedents and, in fact, is in direct conflict with applicable Supreme Court holdings and Congressional action. It also represents poor public policy that runs counter to the principle that historical presidential records should be made public that has been cited by the Supreme Court, Congress and our past Presidents."
Further, Judge Levi held that the Briefs also could be categorically withheld because they are protected by a limitless presidential privilege for confidential communications with advisers. The scholars argue that this holding contradicts the Supreme Court's decision 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. Moreover, the rationale for the privilege makes no sense in light of the extensive public availability of President Johnson's deliberations, including over 400 hours of tapes of his oval office conversations.
Appelants include: American Historical Association, American Political Science Association, National Coalition For History, Organization Of American Historians, Presidency Research Group, Society Of American Archivists, Society For Historians Of American Foreign Relations, Barton J. Bernstein, Robert Dallek, Lloyd C. Gardner, Fred I. Greenstein, George C. Herring, Jeffrey P. Kimball, Stanley I. Kutler, Walter Lafeber, Anna Nelson, and Robert D. Schulzinger
EXCERPT FROM THE BRIEF
This case involves the question of whether two President's Daily Briefs ("PDBs") prepared by the Central Intelligence Agency ("CIA") 40 and 37 years ago for President Johnson should be subject to a blanket exemption from disclosure under the Freedom of Information Act ("FOIA") regardless of their contents. Although the FOIA request at issue involves only two specific PDBs, the district court's ruling was not based on the contents of those specific documents, but rather on broad principles that would exempt all PDBs from disclosure under FOIA in perpetuity, regardless of their content.1
The district court's broad holdings are not mandated either by FOIA or by any precedents interpreting FOIA. Instead, the court has gone well beyond any previous ruling regarding the applicability of exemptions from FOIA. Indeed, in some respects the court's decision represents a de facto overruling both of applicable Supreme Court precedent and Congressional findings. It is the broad nature of the district court's holdings that concerns the Amici and causes them to participate here. The Amici have no interest in the disclosure of materials that could threaten the national security or endanger sensitive intelligence sources or methods. The PDBs, however, provide a vital historical record of what issues were important to President Johnson and what information President Johnson consulted as part of his decision-making process. There has been no showing by the CIA that the release of PDBs from the Johnson administration, redacted to prevent disclosure of intelligence sources and methods, would have any material impact on national security. The Amici concede that it very well could be the case that more recent PDBs could be exempted from disclosure under FOIA for some period of time. However, it is not necessary for this Court to decide that issue, nor to define precisely how long such a blanket exemption should last. This Court need only find that PDBs are not subject to a blanket exemption from FOIA in perpetuity, and that PDBs from the Johnson administration should be released under FOIA, subject to redaction of specific references to intelligence sources and methods. ...
I. THE PDBs SHOULD NOT BE DEEMED TO BE AN "INTELLIGENCE METHOD"
One of the arguments made below by the CIA was that the PDBs should be considered an "intelligence method" subject to protection under the National Security Act, which charged the Director of the CIA with "protecting intelligence sources and methods from unauthorized disclosure." See 50 U.S.C. §§ 403-3(c)(7), 403g (2004).3 If accepted, this argument would entitle the CIA to withhold PDBs in response to FOIA requests under Exemption 3 of FOIA –which applies to information "exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). Consequently, the CIA would be able to withhold PDBs in perpetuity, regardless of the age of the PDBs and regardless of their content.
Although the district court noted this argument in its discussion of whether FOIA Exemption 3 applies, 378 F.Supp. 2d at 1215, the court never specifically ruled whether the PDBs are an intelligence method in that section of its opinion. Instead, the district court addressed both this claim and the CIA's "mosaic theory" (discussed below), and concluded that Exemption 3 applies, without ever specifically stating which of the two CIA theories it adopted. 378 F. Supp. 2d at 1215-18. However, in a subsequent section of its opinion, the court stated that "the PDB is itself an intelligence method," to support its finding that the PDBs are exempt from disclosure in their entirety, regardless of their content Id. at 1222.
Because the district court never specifically articulated why it agreed that the PDBs should be considered to be an intelligence method, it is difficult to discern the exact basis for the court's conclusion. However, based on the record –principally the affidavit submitted by the CIA –it is clear that this finding is erroneous, whatever the court's reasoning....
1 The district court opinion is reported at Berman v. CIA, 378 F. Supp. 2d 1209 (E.D. Cal. 2005).
3 Subsequent to the date of Berman's FOIA request, the responsibility for protecting intelligence sources and methods has been transferred to the Director of National Intelligence. See Berman, 378 F.Supp 2d at 1214 n.5.
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