The D.C. Circuit U.S. Court of Appeals ruled 2-1 on July 9th that the CIA does not have to pay my court costs incurred in the long-running FOIA lawsuit Morley v. CIA. The split decision was joined by Judge Brett Kavanaugh, who was nominated by President Trump later that day to serve on the the Supreme Court.
Kavanaugh’s opinion disparaged my reporting and vouched for the very “reasonable” actions of the CIA.” ( The word appears 23 times in the decision; “reasonably,” and unreasonably,” another 23 times.) It is reasonable to conclude that Kavanaugh is deferential to the CIA.
About the information I obtained via litigation, the unsigned opinion said, “the public benefit was small.” The decision made no reference to extensive coverage of Morley v . CIA in the New York Times, Fox News, San Diego Union, St. Paul Pioneer Press, CBS News in Dallas, and the New Yorker, among many other news organizations. It is not surprising that the CIA denies any “public benefit” to a closer look at some of its shadier JFK secrets. But does the DC Court of Appeals, the second highest court in the land, deny it too?
No. A strong dissent by Judge Karen Henderson takes a much more balanced and independent view of the case, in my view. Appointed by President George H.W. Bush in 1990, Henderson points out that the court had previously found that I had met the standard of “public benefit” established in case law.
In a 2013 decision the court stated.
Morley’s request had potential public value. He has proffered—and the CIA has not disputed— that Joannides served as the CIA case officer for a Cuban group, the DRE, with whose officers Oswald was in contact prior to the assassination. Travel records showing a very close match between Joannides’s and Oswald’s times in New Orleans might, for example, have (marginally) supported one of the hypotheses swirling around the assassination. In addition, this court has previously determined that Morley’s request sought information “central” to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies in investigating the assassination. Under these circumstances, there was at least a modest probability that Morley’s request would generate information relevant to the assassination or later investigations.
In sum, I believe the district court erred on two levels: it erred in evaluating each of the four factors individually and abused its discretion in weighing them against one another. Accordingly, this case does not call for “[d]eference piled on deference.” Maj. Op. 11. It calls for an adherence to Davy IV and our four earlier Morley opinions. Because I believe the district court ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.
Unfortunately, the majority, meaning Kavanaugh and Trump appointee Judge Gregory Katsas, disagreed. I have 45 days to appeal.
18 thoughts on “In his last decision before his Supreme Court nomination, Brett Kavanaugh sided with the CIA”
Kavanaugh’s cover up in the Vince Foster case would raise anyone’s eyebrows, and how he ridiculed and besmirched the character of a very important Grand Jury witness, Patrick Knowlton before the Grand Jury should tell you all you need to know about Kavanaugh. https://www.telegraph.co.uk/news/my-battle-brett-kavanaugh-over-truth-ambrose-evans-pritchard/
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Kavanaugh is a “Judge” as much as JFK was a “President”. Supreme Court is a Circus of 9 clowns, White House is a Circus of one clown, each circus with different jokes. Once people get tired of the jokes, they will get rid of the clowns
Kavanaugh, as is common today, is not a jurist. All his adult life, he’s been a political operative, and that’s why so many are determined to see him elevated to the high court, instead of being referred to the Justice Dept. for investigation of perjury.
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Sorry to hear about the result of the case, Jeff. Like everyone else said thank you for the great work you are doing for everyone in our country. You are a hero to me and lots of other people. I can’t believe this ruling. It’s ludicrous.
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Gee, I wonder if the court realizes just how long and at a higher level the CIA has been dissembling with regards to the DRE. After more than 5 decades, there are hiding something incredibly embarrassing.
Egads. I had no opinion on Kavanaugh. But now….
I see Judge Henderson rightly cited my case as precedent (I believe she wrote the majority opinion) that as long as you have “substantially prevailed ” in your original case you are entitled to attorneys fees. We won that case 2-1. It might have been Cavanaugh that was the lone dissenter, but I think it was another Bush appointee. Been too many years.
Isn’t Kavanaugh supposed to have a thing about government agency “over reach” and defers to the law as it is written? Isn’t the CIA one such agency? And isn’t he supposed to be such a great judge because he doesn’t waiver and is the paramount of consistency?
Thanks once again Jeff for fighting the good fight along with Mr. Lesear. It reminds me of JFK himself, you are doing what he asked when he said “ask not what your country can do for you, but what you can do for your country.” You and those who help you are True Patriots. It also reminds me of JFK, Robert Frost, Miles to go before I sleep… through the dark woods…
I can’t believe, well, yes I can, that the current president nominated Kavanaugh to the supreme court. If he can’t get this right We the People don’t need him there.
Kavanaughs job is to protect the corporate-military-industrial-spy complex and he knows it.
I would say it is the industrial (Corporate)- Intelligence- military complex with its revolving door of opportunity. Corproate industry is in charge.