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The Bay of Pigs' unfinished battle
New Battle Over the Bay of Pigs Invasion
Washington, DC, December 13, 2013 – A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the National Security Archive's arguments yesterday for public release of the last secret volume of the CIA's internal history of the 1961 Bay of Pigs disaster.
Represented pro bono by Allon Kedem of the Skadden Arps law firm, the Archive rebutted the CIA's claims that the 30-year-old draft history of 50-year-old events deserved any protection under the "deliberative process" exemption to the Freedom of Information Act.
Attorney Kedem pointed out that the draft was connected to no policy decision by CIA, and that CIA has already admitted in court why the draft was rejected by supervisors and never published -- apparently it is a polemic against the CIA Inspector General whose devastating report on CIA responsibility for the Bay of Pigs was obtained through the FOIA and published by the National Security Archive in 1998. The author of the draft history, Dr. Jack Pfeiffer, since-deceased, lost a lawsuit in 1987 seeking release of his drafts so he could publish them himself.
When the government's lawyers argued that release of the draft would "confuse the public" about whether the document was CIA official history, Judge Judith Rogers said she did not "find that totally persuasive," since there is no confusion that the CIA disagrees with the draft's conclusions.
Rogers told the government, "You're seeking ad infinitum protection of drafts" when the FOIA is actually a disclosure statute and exemptions have to be narrowly drawn. The other judges on the panel, Brett Kavanaugh and Stephen Williams, pitched in with tough questions for both parties. Kavanaugh remarked that the records of the 1787 Constitutional Convention were sealed for only 30 years, implying that the CIA draft history could easily be released as well.
The case also includes an amicus brief by the National Coalition for History (represented by the Jones Day law firm) noting the pernicious effects on access to historical documents that a ruling for the CIA would impose on government files. According to Tom Blanton, executive director of the National Security Archive, "If the (CIA) wins, it would throw a burqa over future release of any draft document an agency produces."
News coverage of the case includes yesterday's McClatchy News story:
Document 1: Brief for Appellant National Security Archive, January 22, 2013
Document 2: Brief for Appellee [CIA], March 28, 2013
Document 3: Reply Brief for Appellant National Security Archive, April 25, 2013
Document 4: Amicus Brief of the National Coalition for History in Support of Appellant, January 29, 2013
CIA Bay of Pigs Secrecy Case Reaches Appeals Court
National Security Archive Lawsuit Seeks Last Volume of CIA "Official History"
CIA claims release would "confuse the public"
National Security Archive Electronic Briefing Book No. 450
Posted December 13, 2013
Edited by Tom Blanton
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