Federal Court Skeptical of CIA Bid for Secrecy

By JOSH GERSTEIN, Staff Reporter of the Sun
July 11, 2007

SAN FRANCISCO — A federal appeals court is expressing skepticism about the CIA's claim that its technique for briefing presidents is so sensitive that it must be protected from public scrutiny, even 40 years after the fact.

Two judges considering a lawsuit seeking access to so-called Presidential Daily Briefs provided to President Johnson during the Vietnam War era cast doubt yesterday on the spy agency's assertion that the way it updates the nation's chief executive is itself an intelligence method entitled to blanket secrecy under the law.

"It just doesn't compute to me," Judge Pamela Ann Rymer of the 9th Circuit Court of Appeals said as a three-judge panel heard oral arguments on the case.

"It's not as if PDBs have never been made public or they haven't been talked about," Judge Raymond Fisher said. He noted that some have been officially released and that a book, "Bush at War" by Bob Woodward, quotes from a CIA brief prepared on the day after the terrorist attacks of September 11, 2001.

A Justice Department attorney, Mark Stern, told the court that disclosing the amount of detail provided to presidents and "what sort of things they care about" could undermine national security. "This is the crystallization of intelligence," he said.

The suit was brought by a political science professor at the University of California at Davis, Larry Berman, as part of research he was doing on how political leaders in America responded to developments in the Vietnam War. At issue are just two PDBs he requested under the Freedom of Information Act, one from August 1965 and another from April 1968.

As part of his research, the professor discovered that the Johnson Presidential Library in Austin, Texas, released several briefs in part. The CIA now says that was a mistake, but Mr. Berman said in an interview that the release confirms that PDBs are more pedestrian than Langley acknowledges. "Even the reviewing archivists didn't recognize them as PDBs," the professor said in an interview. Last year, a federal district judge in Sacramento ruled against Mr. Berman. Judge David Levi upheld the CIA's right to withhold the entire series of presidential briefs without a document-by-document review. He based his ruling on a variety of grounds, including the claim that briefing techniques are protected intelligence methods.

"That's an extremely expansive definition of ‘method,'" one of Mr. Berman's attorneys, Duffy Carolan, told the appeals court.

Judge Fisher seemed to agree, saying Judge Levi may have made "an overstatement" when he sided with the CIA on that point.

Ms. Carolan complained that the CIA was permitted to withhold the documents without explaining with specificity how the requested PDBs could disclose sources and methods.

"What more could be said without spilling the beans?" Judge Rymer asked.

Ms. Carolan insisted that the agency should at least be required to tell the court how items in the documents might implicate its sources. "Deference to the judgment of the CIA is not the same thing as acquiescing," she said. "What the CIA got away with in this case is remarkable."

While Mr. Stern insisted that the agency justified its actions in "an extremely careful detailed manner," Judge Fisher complained that the CIA's declaration contained a lot of truisms, such as statements that intelligence sources can live for a long time and that disclosure of their affiliation can put their families in harm's way. "That's just a statement of the human condition," the judge said.

Prominent academic groups, including the American Historical Association and the American Political Science Association, have filed amicus briefs urging the appeals court to overturn the lower court's decision.

"This case is about access to history," Ms. Carolan said. She faulted Judge Levi for taking no account of the fact that 40 years have elapsed since the Johnson-era briefs were prepared.

Mr. Stern said the agency has not taken the position that the documents must be kept secret forever, but that the decision of when to release them is not one for the courts. "It is one of the judgments left to the CIA," he said.

Not mentioned during yesterday's arguments were recent public discussions of the presidential briefings at the criminal trial of a former chief of staff to Vice President Cheney, I. Lewis Libby Jr., and in a book published by a former director of central intelligence, George Tenet.

A summary of most items in one day's vice presidential briefing from 2003 was declassified by the CIA and presented at Libby's trial by defense attorneys. Officials have said that the vice presidential and presidential briefings are largely the same.

Mr. Tenet describes the briefing process repeatedly in his book, "At the Center of the Storm," which was cleared by the CIA. He also writes at length about a "threat matrix" that accompanied the briefing. Lawyers at Libby's trial were told they could not use those words because the CIA deemed them to be classified.

According to a private group backing Mr. Berman, the National Security Archive, portions of at least 35 PDBs have been released publicly. President Bush declassified two segments for use by the independent commission that investigated the September 11 attacks.

Ms. Carolan argued that lowerlevel intelligence briefings routinely released by CIA often contain more sensitive information than the president receives. "If that's so, the president has been in deep yogurt," Judge Rymer quipped.

The third judge on the appeals panel, David Thompson, was less vocal than the other two, though he did ask about the damage releasing the documents might do to the CIA's sources. Even if the judges side with Mr. Berman, the CIA is almost certain to be allowed to withhold large chunks of the requested briefs.

Judge Rymer was appointed by President George H.W. Bush, Judge Fisher by President Clinton, and Judge Thompson by President Reagan.

This reporter is in litigation with the CIA over access to records about leaks of classified information. The agency has also withheld some of those records on the grounds that disclosure could jeopardize intelligence sources and methods.