21 May 2014 — National Security Archive
D.C. CIRCUIT SPLIT DECISION RULES CIA DRAFT HISTORY CAN BE KEPT SECRET INDEFINITELY
NATIONAL SECURITY ARCHIVE FOIA LAWSUIT EXPOSES GAP BETWEEN OBAMA ADMINISTRATION’S “TRANSPARENCY” POLICIES AND ACTUAL BUREAUCRATIC (AND JUDICIAL) BEHAVIOR
Posted May 21, 2014
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Washington, DC, May 21, 2014 — The U.S. Court of Appeals for the D.C. Circuit yesterday joined the CIA’s cover-up of its Bay of Pigs disaster in 1961 by ruling that a 30-year-old volume of the CIA’s draft “official history” could be withheld from the public under the “deliberative process” privilege, even though four of the five volumes have previously been released with no harm either to national security or any government deliberation.
“The D.C. Circuit’s decision throws a burqa over the bureaucracy,” said Tom Blanton, director of the National Security Archive (www.nsarchive.org), the plaintiff in the case. “Presidents only get 12 years after they leave office to withhold their deliberations,” commented Blanton, “and the Federal Reserve Board releases its verbatim transcripts after five years. But here the D.C. Circuit has given the CIA’s historical office immortality for its drafts, because, as the CIA argues, those drafts might ‘confuse the public.'”
“Applied to the contents of the National Archives of the United States, this decision would withdraw from the shelves more than half of what’s there,” Blanton concluded.
The 2-1 decision, authored by Judge Brett Kavanaugh (a George W. Bush appointee and co-author of the Kenneth Starr report that published extensive details of the Monica Lewinsky affair), agreed with Justice Department and CIA lawyers that because the history volume was a “pre-decisional and deliberative” draft, its release would “expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”
This language refers to the fifth exemption (known as b-5) in the Freedom of Information Act. The Kavanaugh opinion received its second and majority vote from Reagan appointee Stephen F. Williams, who has senior status on the court.
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