Sacramento, California, 15 July 2005
- U.S. District Judge David Levi this week contradicted the
U.S. Supreme Court, which held that presidential privilege erodes
over time, by accepting CIA
and Bush administration claims that presidential privilege
still applies to two intelligence briefs given to President
Johnson in 1965 and 1968, according to a memorandum
of opinion and order dated 11 July in the Freedom of Information
Act lawsuit brought by University of California Davis professor
Larry Berman against the CIA.
Levi also accepted CIA claims that the two documents are actually
an intelligence "method" that the Director of Central
Intelligence has authority to keep secret, despite the evidence
in the case that the actual methods used by the CIA in the 1960s
have been largely declassified. These include more than 800,000
spy satellite photographs
taken by the CORONA and KH-5,6,7 and 9 systems, extensive data
on signals intercepts including the Gulf
of Tonkin (1964) intercepts of North Vietnamese traffic,
and thousands of pages of source material produced by CIA agents
in the Soviet Union (such as Penkovsky) or operating
against Cuba (such as Luis Posada).
Levi never actually examined the two Briefs at issue himself,
relying instead on the affidavit
of CIA officer Terry Buroker, who claimed that no Briefs
could be released, no matter how old, without damage to U.S.
national security. Buroker himself actually reviewed and released
two other LBJ-era Briefs in December 2004 when their cable format
did not include a President's Daily Brief cover sheet and he
considered them only on their merits. Buroker's affidavit said
this was a mistaken release but identified no damage done nor
distinguished the two other Briefs at issue in the lawsuit.
Levi accepted Buroker's generic claims that release of two
more LBJ Briefs "could" impair the CIA's mission by
revealing its sources and methods, even though Buroker never
asserted that release of 35 other PDBs and excerpts (including
August 2001 PDB given to President Bush about the Bin Ladin
threat) have actually done any identifiable damage to the
CIA's mission or to U.S. national security.
The plaintiff in the case, noted Vietnam scholar Larry Berman,
commented, ""Judge Levi's decision is extremely disappointing
to me and certainly discouraging for historical inquiry. Judge
Levi has redefined the meaning of Freedom of Information and
presidential privilege. In doing so, he becomes another foot
soldier in the administration's war on restricting public access
to government documents, in this case for decisions made over
thirty years ago."
Levi's opinion states that "the public's interest in
protecting frank exchange between the leadership of the CIA
and the President could not be greater," ignoring the fact
that C-SPAN and various web sites routinely broadcast actual
declassified White House tapes that contain
frank discussion between Presidents Kennedy, Johnson and Nixon
and their CIA directors - surely a far more "deliberative"
exchange than the factual briefing material contained in the
two Briefs at issue in the case.
"Judge Levi doesn't understand that he actually damages
our national security with this opinion, because he upholds
a farcical secrecy claim about which currently serving officials
privately chuckle, and thus he encourages leaks by undermining
the credibility essential to keeping our country's real secrets,"
said Thomas Blanton, director of the National Security Archive
at George Washington University, whose general counsel, Meredith
Fuchs, represented Professor Berman in the case, along with
Thomas Burke and Duffy Carolan of Davis, Wright, Tremaine.
"By accepting at face value the hollow claims of the government
without even looking at the two, nearly 40 year-old PDBs and
despite substantial evidence contradicting the specious claims
by the government that disclosure of even one word of the PDBs
poses a threat to our nation's security, Judge Levi has set
the bar dangerously low for continued secrecy over matters of
historical importance," said Carolan.
Levi's opinion reverses the plain meaning of one of the key
exhibits in the case, a fully declassified CIA
history of its briefings to Presidents and presidential candidates,
which states that "CIA did not receive from Johnson the
steady presidential feedback it had received from Kennedy."
In Levi's hands, this clear debunking of the PDB as any kind
of direct dialogue between LBJ and CIA turns into the following
phrase: "President Johnson did regularly communicate his
reactions, criticisms, and requests concerning the PDBs to the
CIA through one of his top aides." In fact, nowhere in
the CIA history does the word "regularly" appear in
regards to Johnson's PDB communications. Instead, the CIA history
compliments a Johnson aide for having been "consistently
helpful" in communicating.
The Sacramento-based judge rejects the statutory language of
the Freedom of Information Act requiring that "any reasonably
segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which
are exempt." Levi's
opinion holds the contrary:
1. "[R]elease of any portion of the requested PDBs necessarily
constitutes information about the application of an intelligence
method." In fact, hours of public testimony by top Bush
administration and CIA officials about the 6 August 2001 PDB
and the process that created it, as well as the declassified
CIA history of presidential briefings and 35 examples of PDBs
and segregable portions on the public record, have already declassified
this particular "method," if it really is a method.
2. "[A]ny intelligence information that is not classified
is nevertheless part of a mosaic of PDB information that could
provided damaging insight into how the CIA conducts its intelligence
business." In fact, none of the declassifications to date
have actually done any damage, not even the CIA's Buroker claims
any identifiable damage, and both Buroker and Levi can only
use the speculative "could."
3. "[T]he presidential communications privilege applies
to documents in their entirety." Yet the government reviewers
of the White House tapes have released thousands of hours to
the public featuring JFK, LBJ and Richard Nixon deliberating
with their top advisers including various CIA directors. Despite
this, Levi says, two factual briefing summaries totaling fewer
than a dozen pages are privileged, forever.
Intelligence Sources and Methods