“This decision would put off limits half of the contents of the National Archives,” said Tom Blanton, director of the non-profit National Security Archive.
The majority opinion of a Washington appellate court, issued today, would allow the so-called “deliberative process” exemption to swallow up most of the benefit of the Freedom of Information Act, Blanton said.
“This decision gives total discretion to every bureaucrat to withhold anything they want,” Blanton said. “It turns it into a burqa for bureaucratic obfuscation.”
What’s in the suppressed report?
The defeat on the beaches of Cuba set bitter recriminations between the White House and the agency — and a deep animosity toward JFK himself among anti-Castro exiles and CIA covert operations officers. The report likely contains diatribes of CIA officials against President Kennedy, who declined to provide air cover to the embattled rebels, and the generals of the Joint Chiefs of Staff, who vetted the plan for military plausibility.
(Here’s the National Security Archives summary of the litigation to obtain what is known as Volume 5 of the CIA’s Bay of Pigs History.)
If made public today these angry sentiments might have generated a news story that could have flared through a news cycle or two. That’s not a big concern to an agency that has its share of public relations disasters.
The CIA also has to worry that the lease of the secret history would also give propaganda fodder to the Cuban government, now headed by Raul Castro, who saw action at the Bay of Pigs. The U.S. government’s latest covert effort to undermine Cuba’s government — a secret scheme to create a Cuban Twitter — collapsed in risible failure earlier this year.
“From the Bay of Pigs to the Bay of Tweets,” said Sarah Stephens, a Cuba policy analyst.
Anything that reminds the American taxpayer of Washington’s epic fail on the island south of Key West is not welcome in Langley.
Judge to the Rescue
Judge Brett Kavanaugh, writing for the majority, ruled that because the report was a draft, it contained “predecisional and deliberative” material. The Freedom of Information Act, he declared, allowed withholding of this material in order to encourage candid discussion in governmental deliberations.
But the CIA is not exactly panicked that its analysts today will shy from robust debate because their deliberations might become public in the year 2064. A good argument around the seminar is not all the Agency is hoping to protect.
There’s also that thing known as the “black budget.”
What CIA officialdom has to actually worry about in 2014 is how the airing the agency’s dirty laundry might undermine its current budgetary request on Capitol Hill.
With CIA paramilitary operations now commanding billions of dollars around the world, the agency cannot want the already pissed off Senate Intelligence Committee and the Snowden-ized citizenry to be reminded of how catastrophically stupid and destructive CIA paramilitary operations can be.
And how would release of this ancient record discourage people making decisions in Washington today?
Judge Brett Kavanaugh’s opinion (read it here) contends that the deliberative process privilege does not erode over time. In other words, it seems, government officials are entitled to keep their deliberations secret indefinitely. Judge Kavanaugh was appointed by President George W. Bush. Judge Williams was appointed by President Reagan.
In a dissent Judge Judith Rogers, appointed by President Clinton, questioned the justification for withholding the history wholesale when FOIA requires that agencies release non-exempt portions of documents.
Judge Rogers issued a favorable ruling in the first round of my lawsuit, Morley v. CIA, seeking CIA records related to the assassination of President Kennedy.
In a 2007 decision, Rogers ruled for the unanimous majority that the CIA had to turn over addition records related to deceased undercover officer George Joannides. In 1978 Joannides stonewalled JFK investigators about what he knew of contacts between anti-JFK, anti-Castro Cuban exiles and accused assassin Lee Oswald shortly before President Kennedy was killed.
In that case, Rogers ordered the CIA to do more searches for records.
“Even the CIA recognizes that the focus of the [House] committee’s investigation was the relationship between organizations like the DRE and the Kennedy assassination. The evidence proferred by Morley indicates that Joannides was in a position of central importance to such an investigation and was thus covered by its specific subject matter.”
As a result of Rogers’s decision, the CIA was forced to disclose for the first time that Joannides had received a Career Intelligence Medal in 1981, two years after stonewalling congressional JFK investigators about his covert assignment in 1963.
Rogers’s ruling also compelled the agency to release records related to Joannides’s presence in New Orleans in 1964 when the Warren Commission was investigating Oswald’s activities there.
Read Judge Rogers’s December 2007 Court of Appeals decision. (See pp. 11-12 for the quote)
Background on Morley v. CIA
CIA admits undercover officer lived in New Orleans (Nov. 11, 2013)
5 Decades Later Some JFK FIles Still Sealed (Associated Press, Aus. 18. 2013)
Justice Dept. denies CIA officer was honored for coverup (JFK Facts,Dec. 17, 2012)
Court uphold public benefit of disclsoure about CIA officer in JFK story (JFK Facts, June 19, 2013)
CIA Still Cagey About Oswald Mystery (New York Times, October 17, 2009)
Morley v. CIA: Why I sued the CIA for JFK assassination records (JFK Facts, Feb. 23, 2013)
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