Court decision spares CIA embarrassment on Capitol Hill and in Havana

CIA wins secrecy for Bay of Pigs history reports POLITICO.com.

“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 cover of a commemorative album about the Cuban Revolution, pubilshed by a Havana confectioneer in 1959

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

Judge Brett Kavanaugh:, Langley’s friend

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.

Secrecy Skeptic

Judge Judith Rogers

Judge Judith Rogers, secrecy skeptic

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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8 comments

  1. Dave says:

    The quality and nuance of Judge Rogers’ insightful dissenting opinion is in stark contrast to the narrow and simplistic analysis of the “Republican” majority opinion. Rogers is rightly critical of the District Court’s failure to even bother to read the draft Volume V to test the CIA’s bald assertion that it is fully protected under Exemption 5, and she would remand the matter back to the lower court to reconsider their decision, if she had her druthers.

    I think this flawed, suppressive and “anti-historical” judgment would stand an excellent chance of being overturned on appeal, and hope the NSA will pursue it.

    Did I read that part right, about the CIA’s own historian staffer bringing his own FOIA application against the Agency?

  2. Ronnie Wayne says:

    Bullshit. These too are our files, release them. Along with the 7 most wanted (plus allen dulles).
    FREETHEFILES.

  3. Gerry Simone says:

    Blanton’s remarks are discouraging.

    What’s the prospect of another trial or appeal to the SC?

    • Dan says:

      The National Security Archive can move for reconsideration en banc, which means that if several judges wish, the case can be reheard by all the judges on the U.S. Court of Appeals for the D.C. Circuit. In this case such a motion might well be worthwhile since the three judge panel was split 2-1 and there are strong arguments in favor of Judge Rogers’ dissent. In addition, there are several new judges on the court recently appointed by President Obama and confirmed by the Senate.

      The other option is an appeal to the U.S. Supreme Court, however such appeals are only granted at the discretion of the Supreme Court and very few are granted as compared to the number of appeals sought.

  4. Dan says:

    Judge Rogers in her dissent quotes the declaration of the CIA Chief Historian that gives some information about the content of the draft history of the Bay of Pigs operation.
    It “offers a polemic of recriminations against CIA officers who later criticized the operation, and against those U.S. officials who [the staff historian] contends were responsible for its failure,” Decl. of J. Kenneth McDonald, CIA Chief Historian ¶¶ 6, 13 (Nov. 4,1987)

  5. Sandy K. says:

    Roger Stone has a new book asserting that Nixon was indeed tricky when it came to saving his own hide by threatening to expose the CIA. Here is a portion of the book’s preview as posted today on lewrockwell.com:

    “Roger Stone, the New York Times bestselling author of The Man Who Killed Kennedy, gives us the inside scoop on how Nixon avoided prosecution after the Watergate scandal. Using Gen Al Haig as his agent, Nixon let Vice President Ford know that he would expose the CIA’s involvement in the JFK assassination and Ford’s role in altering autopsy records for the Warren Commission if he went to trial in the Watergate scandal. “Tell them if Dick Nixon’s going down I’m taking everyone down with me, that prick [CIA Director Richard] Helms, Lyndon, and Jerry Ford are going down with me” was the way Haig phrased it.

    Thus Nixon would use this information to avoid prosecution and jail to blackmail Gerald Ford for a full, free and unconditional pardon. Nixon’s secret would not only destroy his presidency—it would save him from prison.

    Stone examines the bungled Watergate break-in to determine what exactly Nixon’s agents were looking for and how the CIA infiltrated the burglar team and sabotaged the break-in to gain leverage over Nixon who was demanding the CIA turn over the records of the Bay of Pigs and Kennedy Assassination. He also explains the 18 1/2 minute gap in the White House Tapes, although the point is moot as the government has still redacted all references to the Bay of Pigs, the Kennedy Assassination, and the CIA from the publicly released Nixon tapes and the Obama Administration’s fighting in Federal Court to keep the CIA’s Bay of Pigs records sealed.”

    • Gerry Simone says:

      Stone examines the bungled Watergate break-in to determine what exactly Nixon’s agents were looking for and how the CIA infiltrated the burglar team and sabotaged the break-in to gain leverage over Nixon who was demanding the CIA turn over the records of the Bay of Pigs and Kennedy Assassination.

      Interesting, however, how could Nixon blackmail the CIA or Ford if he didn’t have those records in the first place?

      How could the CIA blackmail him after they already had sabotaged the break-in?

      The only person who might have blackmailed Nixon was E. Howard Hunt, after he was arrested (did he not get money from the President’s CREEP fund?).

      Perhaps he knew enough and as POTUS, people might listen and take him seriously just on his word. As insurance, he would’ve written a letter and sealed it or left it with someone in case something happened to him.

      • Gerry Simone says:

        My bad.

        If Nixon was POTUS, he didn’t have to blackmail the CIA for the release of those documents, but why oh why would he want them released if they were locked away and safe from prying eyes?

        Perhaps he was worried what they may contain.

        Isn’t this what he was looking for at the Watergate Hotel (info that the Dems had on him about the JFK Assassination?)?

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