CIA SUCCESSFULLY CONCEALS BAY OF PIGS HISTORY - 0 views
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May 21, 2014 – The U.S. Court of Appeals for the D.C. Circuit yesterday joined the CIA's cover-up of its Bay of Pigs disaster in 1961 by ruling that a 30-year-old volume of the CIA's draft "official history" could be withheld from the public under the "deliberative process" privilege, even though four of the five volumes have previously been released with no harm either to national security or any government deliberation. "The D.C. Circuit's decision throws a burqa over the bureaucracy," said Tom Blanton, director of the National Security Archive (www.nsarchive.org), the plaintiff in the case. "Presidents only get 12 years after they leave office to withhold their deliberations," commented Blanton, "and the Federal Reserve Board releases its verbatim transcripts after five years. But here the D.C. Circuit has given the CIA's historical office immortality for its drafts, because, as the CIA argues, those drafts might 'confuse the public.'" "Applied to the contents of the National Archives of the United States, this decision would withdraw from the shelves more than half of what's there," Blanton concluded.
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The 2-1 decision, authored by Judge Brett Kavanaugh (a George W. Bush appointee and co-author of the Kenneth Starr report that published extensive details of the Monica Lewinsky affair), agreed with Justice Department and CIA lawyers that because the history volume was a "pre-decisional and deliberative" draft, its release would "expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." This language refers to the fifth exemption (known as b-5) in the Freedom of Information Act. The Kavanaugh opinion received its second and majority vote from Reagan appointee Stephen F. Williams, who has senior status on the court.
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On the 50th anniversary of the Bay of Pigs invasion in 2011, the National Security Archive's Cuba project director, Peter Kornbluh, requested, through the FOIA, the complete release of "The Official History of the Bay of Pigs Operation" — a massive, five-volume study compiled by a CIA staff historian, Jack Pfeiffer, in the 1970s and early 1980s. Volume III had already been released under the Kennedy Assassination Records Act; and a censored version of Volume IV had been declassified years earlier pursuant to a request by Pfeiffer himself. The Archive's FOIA request pried loose Volumes I and II of the draft history, along with a less-redacted version of Volume IV, but the CIA refused to release Volume V, so the Archive filed suit under FOIA in 2012, represented by the expert FOIA litigator, David Sobel. In May 2012, U.S. District Judge Gladys Kessler held that Volume V was covered by the deliberative process privilege, and refused to order any segregation of "non-deliberative" material, as required by FOIA.
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"Causing public confusion" is a weak grounds for withholding government records because the agency has the option of issuing clarifying statements. Indeed, much of what government does causes public confusion. Hopefully, the Archive will pursue en banc reconsideration and/or seek Supreme Court review.