Declassified Briefing Still Classified, Says CIA

Posted by Meteor Blades, Daily Kos at 6:03 AM on July 30, 2009.

Steven Aftergood, who for years has directed the Project on Government Secrecy at the Federation of American Scientists, is a trooper when it comes to digging out classified material. A dozen years ago, he was the plaintiff in a Freedom of Information Act lawsuit that led to the declassification and publication of the total U.S. intelligence budget for the first time since the CIA was founded. In 2006, PGS won a FOIA lawsuit against the National Reconnaissance Office for release of certain unclassified budget records.

But the main focus has been on turning up and publishing policy-relevant government records that have been suppressed, withdrawn or otherwise withheld.  

Since 2000, his blog and associated newsletter, Secrecy News, has been a heavily sourced must-read for any investigative blogger or journalist interested in what the intelligence side of government is hiding, regardless of the concealed material's value in enhancing national security. A monthly hard-copy predecessor, Secrecy & Government Bulletin, appeared from 1991, when the FAS Project on Government Secrecy began.

It can be argued that current law allows far too much to remain classified that shouldn't be. Leaving that ideological point aside, however, the loosening of declassification rules, the FOIA and basic logic still allows for quite a lot of unaccountable, unacceptable hiding to continue. As witness Aftergood's commentary today:

Even though certain information concerning the President's Daily Brief (PDB) was redacted and declassified for use in the prosecution of former vice presidential aide Scooter Libby in 2006, that same information is nonetheless "currently and properly classified," the Central Intelligence Agency said (pdf) last week. The Agency denied release of the material under the Freedom of Information Act.

The existence of the declassified PDB material was disclosed in a January 9, 2006 letter (pdf) from Special Counsel Patrick J. Fitzgerald to Mr. Libby's attorney. ...

Since declassified PDBs are comparatively rare, we submitted a Freedom of Information Act request in February 2006 for a copy of the PDB-related material that was declassified by CIA for the Libby prosecution. Last week, the CIA responded that it had located the requested material but that "we determined [it] is currently and properly classified and must be denied in its entirety."

This is a somewhat puzzling development.  It is a pity that the CIA Inspector General does not investigate violations of the law of non-contradiction. (Aristotle, Metaphysics, 1005b12-20.)

Aftergood points out that the CIA typically doesn't release PDBs no matter how old they are or what's in them. A previous exception was when, under massive pressure from the 9/11 Commission, it released the August 6, 2001, PDB entitled "Bin Ladin Determined to Strike in US" (pdf), which put the lie to the Cheney-Bush administration's claims about warnings of terrorist attacks.

Aftergood continues:

When challenged under the Freedom of Information Act, courts have upheld the CIA's refusal to release specific PDBs.  But a 2007 ruling in the Ninth Circuit Court of Appeals rejected the CIA view that "PDBs are categorically exempt from FOIA."  In particular, the court denied the CIA assertion that the PDB itself is an intelligence method that is protected by law.  "Although PDBs will typically contain information that reveals intelligence sources and methods, this does not mean that PDBs themselves are intelligence methods."

"If we were to accept the CIA's logic," the court said, "then every written CIA communication -- regardless of content -- would be a protected 'intelligence method' because it is a method that CIA uses in doing its work.... We decline to adopt such a boundless definition, and instead hold that whether or not a particular document used by the CIA in its ordinary course of business is an intelligence method depends upon the content of the document." (Larry Berman v. Central Intelligence Agency, September 4, 2007).

Nobody wants to see the public release of intelligence material to villains who might use it to harm Americans or others. But, as Aftergood has shown time after time, leaving release of such material to the whim of those who classify it, in spite of court rulings, puts far too much authority into the hands of people who have proved themselves, time after time, to be perfectly willing, for pernicious ends, to lie to their supposed overseers.

Tagged as: cia, steven aftergood