Wednesday, September 5, 2007
Court Rules Vietnam War-Era CIA Records Can Remain Confidential
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals ruled yesterday that the CIA can keep confidential two briefing reports it provided President Lyndon Johnson during the Vietnam War.
The panel ruled that the two President’s Daily Brief reports were exempt from disclosure under the Freedom of Information Act.
“We hold that the CIA has provided ample justification that the disclosure of the two PDBs would reveal protected intelligence sources and methods....,” Judge Raymond C. Fisher wrote for the court.
UC Davis political scientist Larry Berman, backed by attorneys from Davis Wright Tremaine’s San Francisco office and the National Security Archive—a private organization based at the George Washington University in Washington, D.C. that collects national security documents for historic purposes—had sued the agency after it turned down his FOIA request.
Berman argues that disclosure of the documents is appropriate given the length of time that has passed and the light that they might shed on the intelligence that Johnson relied on in formulating Vietnam policy.
U.S. District Judge David Levi ruled for the agency after an official declared that disclosure would compromise intelligence sources. Fisher, in concluding that the district judge was correct, noted that only a handful of the more than 13,000 PDBs complied over the years have found their way into the public domain.
Fisher said the CIA can keep the 40-year-old briefings under wraps to protect the agency’s sources and intelligence gathering methods. He said that releasing even decades-old records could chill future sources from working with the CIA.
“Such potential sources may be frightened off if they believe promises of confidentiality are subject to an implicit time-based sunset clause at the discretion of the judiciary,” Fisher wrote for the unanimous three-judge panel, which also included Judge Pamela Rymer and Senior Judge David Thompson.
Fisher rejected the argument that the agency’s objections to disclosure were insufficiently detailed. Noting that the case law places a heavy burden on the requesting party when intelligence documents are sought under FOIA, he said that the declaration filed in this case, unlike a CIA declaration found insufficient in an earlier case, “strikes the appropriate balance between justifying the applicability of the exemption with sufficient specificity to permit Berman meaningfully to challenge it and the CIA’s need to avoid providing a description that is so specific that it risks revealing protected sources and methods.”
Berman was reportedly traveling in Vietnam and could not immediately reached for comment.
The case is Berman v. Central Intelligent Agency, 05-16820.
Copyright 2007, Metropolitan News Company