National Security Archive Update, July 15, 2005

JUDGE GRANTS IMMORTALITY TO PRESIDENTIAL PRIVILEGE
Withholds Two CIA Daily Briefs to LBJ Despite Release of 35 Others with No Damage to U.S.

LINK

Sacramento, California, 15 July 2005 - U.S. District Judge David Levi this week contradicted the U.S. Supreme Court, which held that presidential privilege erodes over time, by accepting CIA and Bush administration claims that presidential privilege still applies to two intelligence briefs given to President Johnson in 1965 and 1968, according to a memorandum of opinion and order dated 11 July in the Freedom of Information Act lawsuit brought by University of California Davis professor Larry Berman against the CIA.

Levi also accepted CIA claims that the two documents are actually an intelligence "method" that the Director of Central Intelligence has authority to keep secret, despite the evidence in the case that the actual methods used by the CIA in the 1960s have been largely declassified. These include more than 800,000 spy satellite photographs taken by the CORONA and KH-5,6,7 and 9 systems, extensive data on signals intercepts including the Gulf of Tonkin (1964) intercepts of North Vietnamese traffic, and thousands of pages of source material produced by CIA agents in the Soviet Union (such as Penkovsky) or operating against Cuba (such as Luis Posada).

Levi never actually examined the two Briefs at issue himself, relying instead on the affidavit of CIA officer Terry Buroker, who claimed that no Briefs could be released, no matter how old, without damage to U.S. national security. Buroker himself actually reviewed and released two other LBJ-era Briefs in December 2004 when their cable format did not include a President's Daily Brief cover sheet and he considered them only on their merits. Buroker's affidavit said this was a mistaken release but identified no damage done nor distinguished the two other Briefs at issue in the lawsuit.

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Bush Administration Claims Presidential Privilege for LBJ Documents
CIA Refuses Release of 35-Year-Old President's Daily Briefs

UC-Davis Professor, Top Johnson Aide Bill Moyers Rebut Secrecy
Claims
National Security Archive
Posted 6 May 2005

LINK

For more information: Professor Larry Berman 202/974-6202
Thomas Burke/Duffy Carolan, Davis Wright Tremaine 415/276-6500
Meredith Fuchs/Thomas Blanton, National Security Archive 202/994-7000

Washington, D.C., May 6, 2005 - Legal motions and sworn declarations filed in federal court this week have refuted Bush administration claims that the CIA can never release President's Daily Briefs given to President Lyndon Johnson in the 1960s because that would damage national security and violate presidential privilege, according to the Web posting of the documents by the National Security Archive at George Washington University.

University of California, Davis professor Larry Berman, a scholar of the Vietnam War, filed suit against the CIA when it refused to release two Briefs from the day before and the day after Briefs that had been declassified and made public more than a decade ago. He is represented by Thomas R. Burke and Duffy Carolan of the law firm Davis Wright Tremaine LLP, and by Meredith Fuchs, general counsel of the National Security Archive.

In support of Professor Berman's case, former Johnson aide Bill Moyers, who reviewed many of the Briefs when President Johnson read them, said in a declaration that the Briefs were not "deliberative" or policy advice, but rather factual reports on world events, and that release of the Briefs could be accomplished without damage to national security by redacting any still-sensitive sources-and-methods information.

CIA information review officer Terry Buroker had filed a sworn declaration with the court claiming that every single word of the two Briefs had to be kept secret because release would contribute to a "mosaic" of knowledge about sources and methods and violate Presidential Privilege. He did not explain why 30 Briefs or excerpts of Briefs already have been publicly released without any harm.

The filings this week included copies of more than 30 Briefs and excerpts from Briefs that had previously been declassified and released. Two of the released Briefs provided to President Johnson were declassified the same month Professor Berman filed his lawsuit in December 2004, under Mr. Buroker's purview, apparently because neither was on PDB stationery.

Documents
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Complaint

Larry Berman, Plaintiff v. Central Intelligence Agency, Defendant.
Complaint for Declatory and Injunctive Relief for Violation of the Freedom of Information Act, 23 December 2004[Click here for the full list of exhibits attached to this complaint]

Government Answer

Central Intelligence Agency Answer to Berman Complaint, 22 February 2005

Declaration of Terry N. Buroker, Directorate of Intelligence Information Review Officer, Central Intelligence Agency, 1 April 2005

Notice of Plaintiff Larry Berman's Cross-Motion for Summary Judgment, 2 May 2005