Case Detail
| Case Title | NATIONAL SECURITY ARCHIVE v. CENTRAL INTELLIGENCE AGENCY | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2011cv00724 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2011-04-14 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2012-05-14 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Gladys Kessler | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | NATIONAL SECURITY ARCHIVE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | CENTRAL INTELLIGENCE AGENCY | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Appeal | D.C. Circuit 12-5201 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [16] FOIA Project Annotation: In a decision that single-handedly makes a mockery of all of President Obama's elegant words supporting greater transparency, Judge Gladys Kessler has ruled that an unpublished volume in a multi-volume CIA history of the Bay of Pigs operation need not be released because it is completely protected by the deliberative process privilege. The National Security Archive requested Volumes I, II, IV and V in August 2005. Although the agency acknowledged the requests one month later, the NSA heard nothing more from the CIA until it filed suit in July 2011. A perplexed Kessler observed that "the CIA has offered no explanation as to why it failed to provide any materials to the NSA in the five years and seven months that elapsed between acknowledgment of the FOIA requests and the filing of this lawsuit, but was able to release extensive materials three months after this lawsuit was filed." The agency released three volumes with minimal redactions, but withheld Volume V under Exemption 5. In a footnote, Kessler explained that "because, for the reasons given below, the entirety of Volume V is covered by Exemption 5, there is no need to address the applicability of Exemption 1 or 3," which the agency had invoked to cover some portions of the Volume V. The agency told Kessler that former CIA historian Jack Pfeiffer was "tasked during the 1970s and 1980s with preparing a classified history of the Bay of Pigs Operation. Two chapters from Pfeiffer's 1981 draft fourth volume, which addressed the Inspector General's report for the Bay of Pigs Operation and the Directorate of Plans' response to that report, became the first draft of Volume V, which covers the Internal Investigation of the Bay of Pigs Operation. Despite multiple drafts, Pfeiffer's supervisor, then Chief Historian Dr. J. Kenneth McDonald, found serious deficiencies with Pfeiffer's proposed Volume V, and therefore it never moved beyond the first stage of the CIA's review process." Kessler then, in what would appear as an almost insurmountable obstacle for the National Security Archive, pointed out that Pfeiffer himself has requested Volume V after he retired from the CIA and Judge John Pratt had agreed with the agency in Pfeiffer v. CIA, 721 F. Supp. 337 (D.D.C. 1989), that the report was protected by the deliberative process privilege. With that decision clearly in hand, Kessler noted that "this Court finds no reason to depart from Judge Pratt's sound conclusion. Volume V was undoubtedly 'generated before the adoption of an agency policy,' and is therefore predecisional. Volume V represents only the first step in a multi-step process of creating an official CIA history. As the current Chief Historian for the CIA, Dr. David S. Robarge, explains Volume V did not even pass through the first stage of a multilayer review process." She indicated that "Volume V represents a proposal by a subordinate member of the history staffâ€"a proposal which was rejected by the Chief Historian due to significant deficiencies. Volume V was therefore generated prior to and in preparation for completion of the CIA's official history, i.e., its final policy, but was rejected for inclusion in the final publication and remained a draft." Kessler then concluded that Volume V was deliberative as well. "Volume V represents an intermediate step in the CIA's intensive review process. Further, in the view of Pfeiffer's superiors, Volume V contained significant problems, including 'offer[ing] a polemic of recriminations against CIA officers who later criticized the operation' and was therefore unfit for publication. Hence, Volume V 'reflect[s] the personal opinions of the writer rather than the policy of the agency.'" The agency also explained why disclosure would harm the deliberative process. Robarge told Kessler that "releasing a draft history may cause staff historians not 'to reachâ€"or even proposeâ€"judgments that may be critical of the Agency's performance or otherwise unpopular within the Agency.' Disclosure of a draft history would risk public release of inaccurate historical information. The CIA has also explained why release of Volume V, in particular would cause harm. Specifically, while Pfeiffer's approach may have had it deficiencies, it clearly contained controversial opinions and therefore '[d]isclosure of Volume V would have a chilling effect on CIA's current historians who would henceforth be inhibited from trying out innovative, unorthodox or unpopular interpretations in a draft manuscript.'" The National Security Archive argued that the passage of time favored disclosure. But Kessler indicated that "the NSA does not, however, cite any case supporting the notion that a document becomes less predecisional or deliberative over time. More importantly, the CIA has shown why, in this case, the passage of time has not affected the rationale for invoking Exemption 5: the CIA does not want to discourage disagreement, of which there was clearly much in this instance, among its historians." She added that "given the fact that, as an agency, the CIA operates in secrecy and faces relatively little public scrutiny of its operations for that reason, and given the importance of the activities and operations it undertakes, it is particularly important that in-house historiansâ€"who do have the factsâ€"feel free to present their views, theories, and critiques of the Agency's actions." Although her reasons for concluding that Volume V needs to remain secret seem quite weak, Kessler's analysis of the law is probably right, particularly in light of the 1989 Pfeiffer decision allowing the agency to withhold the exact same document. But government agencies can be right on the law and, at the same time, completely wrong on policy. From the beginning of his administration, Obama has preached a gospel of transparency that posits that disclosure should typically trump withholding, particularly where there is no foreseeable harm in disclosure. One of the worst aspects of the deliberative process privilege is that once its legitimacy is recognized, its entire purpose is to protect the process rather than the substance of decision-making. If the process is considered sacrosanct, then, of course, any records created as a result of that process must require exemption. But much of our ability to understand how government works comes from a more complete understanding of how decisions were made and why they were made one way rather than another. Volume V of the Bay of Pigs Operation history certainly strikes the CIA as a document that needs protection. But regardless of whether it is a completely accurate presentation of what happened, it is a crucial piece of one of the most notorious chapters in U.S. cold war history. To think that this kind of document needs to be protected in perpetuity to preserve the sanctity of the deliberative process privilege is to seriously short-change our understanding of our own history.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| User-contributed Documents | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Declaration of David S. Robarge | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 Docket Events (Hide) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
