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Fall 2007 Bulletin
Court Rules President Johnson’s CIA Briefings can Remain Secret
A federal appeals court ruled on Sept. 4, 2007, that the Central Intelligence Agency (CIA) may refuse to grant public access to briefings it gave to President Johnson over 40 years ago.
In Berman v. CIA, 501 F.3d 1136 (9th Cir. 2007), the 9th Circuit U.S. Court of Appeals held that two of the President’s Daily Briefs (PDB), documents containing summaries of the most timely intelligence information relating to defense and foreign policy, were exempt from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The FOIA sets out a policy of government disclosure of records subject to certain exemptions, one of which is for intelligence sources and methods.
PDBs are classified documents that the CIA has prepared for the president and his advisors since the Kennedy administration.
On Sept. 4, 2007, a three-judge panel of the 9th Circuit Court of Appeals ruled unanimously that the CIA did not have to release two PDBs delivered to President Lyndon Johnson, one from 1965 and the other from 1968, because their disclosure would implicate national security concerns. Judge Raymond C. Fisher wrote “the CIA has provided ample justification that the disclosure of the ... PDBs would reveal protected intelligence sources and methods.” There were no dissenting opinions.
A number of PDBs have been released to the public, some by mistake and others deliberately, according to the court’s opinion. Two PDBs were released by the CIA in connection with the 9/11 Commission Report. Fifteen PDBs from the Johnson administration have also been declassified and released in redacted form.
According to a New York Sun article published on July 11, 2007, plaintiff Larry Berman, a University of California-Davis political science professor, requested the documents for his research on the reaction of American political leaders to developments in the Vietnam War.
Berman requested access to the two PDBs from the CIA in 2004, but the documents’ release was denied. A letter from the CIA’s Acting Information and Privacy Coordinator dated April 15, 2004 informed Berman that the PDBs requested contained “inherently privileged, predecisional and deliberative material for the President.” Moreover, the letter stated that the briefings were protected by three Freedom of Information Act exemptions concerning national defense or foreign policy.
Berman filed a suit in federal district court in Sacramento in December 2004 demanding the release of the PDBs, according to The Davis (Calif.) Enterprise in an article published Sept. 5, 2007. In July 2005, the district court dismissed the suit, and Berman appealed the decision.
According to the opinion, Berman argued before the 9th Circuit that there was no evidence disclosed in now publicly-available Johnson-era PDBs justifying nondisclosure of the two PDBs at issue in the case. According to the plaintiff’s appellate brief, the previously released Johnson-era PDBs include information about countries and regimes that no longer exist.
Berman also argued that much of the information contained in the PDBs was “similar if not identical to” information contained in the Central Intelligence Bulletins (CIBs), which are publicly available, according to the majority opinion. CIBs are summaries of intelligence information that are distributed to senior officials in the executive branch.
Berman’s appellate brief also stated that the CIA had failed to demonstrate specifically what impact the PDBs would have upon national security if they were released “beyond the vaguely defined process of conveying intelligence to the President.” This lack of judicial scrutiny of the dangers of disclosure, Berman argued in his brief, could give rise to a “particularly illusive expansion of governmental power to deny access to public records.”
The CIA argued that PDBs were too sensitive to become part of the public domain because they contain information that would expose technical methods of collecting intelligence, according to the opinion. The release of such information, claimed the CIA, could have a chilling effect on potential sources of intelligence information in the future, causing them to reconsider sharing valuable information with the CIA for fear of having their identities disclosed. The CIA argued that even in redacted form, PDBs can provide significant contextual information that could be sufficient to identify sources and methods. Moreover, because the briefings contain the most current information “fresh from the field,” the briefings could reveal sensitive information such as an understanding of the kind of intelligence that is most important to the President and senior CIA officials at a given time.
The 9th Circuit’s holding accorded broad deference to the CIA’s advocacy of restricted access to the PDBs despite the lack of specific detail in the CIA’s arguments. The court accepted the CIA’s assertion that identification of the specific harms that would result if the documents were disclosed might allow foreign intelligence agents to determine the contours of CIA intelligence and possibly discern the agency’s intelligence sources and targets in other countries.
The 9th Circuit refused to apply a per se status exemption to all PDBs, however. The CIA had argued, according to the opinion, that PDBs should be accorded a per se status exemption because they are themselves protected intelligence methods. The 9th Circuit rejected this argument, finding that whether a document used by the CIA is an intelligence method depends upon the content of the document itself.
- Amba Datta,
Silha Research Assistant
University of Minnesota | College of Liberal Arts | School of Journalism and Mass Communication
