More Secrecy, unaccountability, bad omens for open democracy

CIA Can Keep Johnson's Security Reports Secret, Court Says

By Karen Gullo

Sept. 4 (Bloomberg) -- The Central Intelligence Agency doesn't have to disclose 40-year-old security briefings to President Lyndon Johnson, an appeals court ruled, saying the passage of time hasn't reduced the need for secrecy.

The federal appeals court in San Francisco said today that the president's daily intelligence briefings are ``the most important and timely intelligence'' on national defense and foreign policy. The court left the door open to future disclosure of the briefings, saying they aren't an intelligence method that's automatically exempt from open-records rules.

``The extreme sensitivity of the Presidential Daily Briefing enhances the plausibility of the CIA's assertion that disclosure of the requested PDBs could cause harm even 40 years after their generation,'' the three-judge panel said in a ruling today.

Larry Berman, a University of California political science professor, sued the agency after it refused his Freedom of Information Act request to release two briefings given to Johnson during the Vietnam War. Berman, the author of three books about the war, argued that disclosing the reports wouldn't harm national security.

A handful of historic PDBs have been declassified, including two briefings that are part of the 9/11 Commission Report.

Berman sought a 1968 briefing from two days after Johnson announced he wouldn't seek re-election and a 1965 briefing from nine days after Johnson ordered 50,000 more troops to Vietnam.

PDBs from the days before and after those sought by Berman had previously been released, and Berman argued in court papers that what Johnson's advisers were telling him during those periods is of value to historians, said his lawyer Duffy Carolan of Davis Wright Tremaine in San Francisco.

`Silver Lining'

``The silver lining is that the court did reject the categorical exemption of PDBs and the contention that the process of briefing the president is an intelligence method, which leaves future requests to be determined on a case-by-case basis,'' Carolan said in an interview.

Berman is considering whether to seek a full review of the case by the appeals court, Carolan said.

PDBs started in the Kennedy administration when President John F. Kennedy asked the CIA to produce a briefing summarizing recently collected intelligence information. During the Johnson administration, PDBs were based on satellite photos, signal intercepts, public information and other sources. The CIA said PDBs are exempt from FOIA because they would reveal sources and methods of intelligence gathering.

The case is Berman v. Central Intelligence Agency, 05-16820, 9th U.S. Circuit Court of Appeals (San Francisco).

weazl's note: You may read a copy of the opinion here.

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net .

Original article posted here.