Secrets Safe From a Suit, Judge Says
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
A federal judge in Washington has rejected a demand for access to the records of a blue-ribbon panel that examined how intelligence agencies misjudged Iraq’s nuclear and biological weapons program prior to the war.
Judge Rosemary Collyer ruled that the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction was not subject to a federal law that guarantees public access to the records and meetings of most advisory panels, the Federal Advisory Committee Act.
“The risk of applying Faca to the commission is that it would interfere with the president’s prerogative to consult with his advisors — free from limitations and restrictions imposed by Congress — on issues relating to his exclusive powers,” the judge wrote.
An attorney who brought the legal challenge, Jules Zacher, told The New York Sun yesterday that an appeal is likely.
The commission, headed by an appeals court judge, Laurence Silberman, and a former Democratic senator of Virginia, Charles Robb, issued a report last year that found that intelligence analysts jumped to unjustified conclusions and relied excessively on unproven sources. The nine-member panel found no evidence to support allegations that the Bush administration applied political pressure in an effort to get analysts to change their views.
Judge Collyer found that the commission was exempt from public scrutiny because the panel was “utilized” by the CIA. In a similar case in 1989, the Supreme Court ruled that an agency must control an advisory panel in order to utilize it, but the judge declined to apply that definition because it could cause a collision with presidential authority.
President Bush’s 2004 order establishing the bipartisan panel contained seemingly contradictory language about its functions. One section said the commission “shall solely advise and assist the president.”Another part said the CIA and other intelligence agencies “shall utilize the commission and its resulting report.”
Critics said the discrepancy reflected an effort to evade public scrutiny of the workings of the commission, which met in secret and formally dissolved in May 2005.
