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Judge Refuses In Camera Review of CIA Estimate on Iraq

CIA Secrecy Claims to Iraq Intelligence Given Little Scrutiny
Despite CIA's Numerous Public Statements About the Situation in Iraq

For more information contact
Meredith Fuchs - 202/994-7000

October 21, 2005

Related posting

October 20, 2004
Archive Sues CIA for Speedy Review of Key Iraq Document

Washington, D.C., October 21, 2005 - U.S. District Judge Rosemary M. Collyer has accepted the Central Intelligence Agency's (CIA) contention that every single word of a 50-page National Intelligence Estimate (NIE) on Iraq must be kept secret, according to a September 30 Memorandum Opinion in the Freedom of Information Act (FOIA) lawsuit brought by the National Security Archive against the CIA.

The Archive filed suit after the CIA refused to expedite processing and release of the 2004 Iraq National Intelligence Estimate ("NIE). As the New York Times reported on September 16, 2004, the NIE spells out a dark assessment of prospects for Iraq. The Estimate outlines three possibilities for Iraq through the end of 2005, with the worst case being developments that could lead to civil war.

Although the CIA had not expedited processing of any FOIA request since the 1996 amendments added expedited processing provisions to the law, the CIA suddenly managed to process the Archive's request within a few days after the law suit was filed. Nonetheless, the CIA claimed that every single word of the NIE must be kept secret pursuant to FOIA exemptions 1 (national security), 3 (sources and methods), and 5 (deliberative process).

Judge Collyer accepted the CIA claims without ever looking at the NIE. Instead Judge Collyer deferred to the affidavit of Martha M. Lutz, the Information Review Officer for the Director of Central Intelligence, who claimed that no portion of the NIE could be released without damage to U.S. national security. To rebut Lutz's claims, the Archive filed with the Court the CIA's own unclassified congressional testimony, speeches, and reports that contain the CIA's assessment of the situation in Iraq during the period in which the NIE was written. Refusing to compare this evidence to the actual NIE, Judge Collyer concluded it was only speculative to contend that the NIE contained some of the same information that was in these disclosed CIA statements.

"The court's refusal to conduct an in camera review puts the FOIA requester in a box with no way out. The FOIA requester can't prove that the agency already released the information unless the FOIA requester already has the document and does not really need it. Frankly, this kind of blanket claim with no review undermines the credibility of the government's security system and encourages insiders to leak documents," commented the Archive's Director Thomas Blanton.

In its one definitive statement about the role of the judiciary in secrecy cases, Congress in 1974 mandated de novo review of agency determinations not to release information under FOIA and explicitly granted courts the authority to conduct in camera review of classified information. When President Ford sought to veto that legislation, Congress quickly overrode the veto. The legislative history makes clear that complete deference is not appropriate. While agency affidavits should be accorded substantial weight in cases concerning classified national security information, Congress indicated "in many situations" in camera inspection of documents "will plainly be necessary and appropriate." In the 30 years since, however, courts have increasingly refused to follow Congress's direction and instead have elevated substantial weight into total deference.

The Archive's counsel Meredith Fuchs explained, "Complete judicial deference to the CIA's secrecy claims - even when faced with the illogic of the claims - allows the Agency to control the direction of the public debate on important policy matters. Instead of prodding the government to be more accountable it reassures the government that there is no real check against abuse."

Contemporaneous CIA Statements About Iraq:
  • Unclassified March 9, 2004 testimony by then-CIA Director George Tenet to the United States Senate Select Committee on Intelligence that describes the interference that violence is causing to the transition to democracy in Iraq (pp. 6-7), the role of terrorists in attempting to inspire a religious insurgency that could halt the building of democratic institutions and governance in Iraq and inspire civil war (pp. 7-8), the long-standing rivalries between Sunnis and Shiites (pp. 8-10), the conflicts within the various groups, including the Shiites and the Sunnis (pp. 8-9), the role of Iran in Iraq (p. 9), challenges to forming a federal political structure (p. 10), and the impact of continued attacks on oil pipelines and infrastructure (pp. 10-11).
  • Unclassified February 24, 2004 testimony by then-CIA Director George Tenet to the United States Senate Select Committee on Intelligence including an earlier version of the same intelligence reported in the March 9 testimony.
  • Unclassified National Intelligence Council report entitled "Mapping the Global Future," explains that Iraq has replaced Afghanistan as the training ground for the next generation of "professionalized" terrorists. It explains that as instability in Iraq grew after the toppling of Saddam Hussein, and resentment toward the United States intensified in the Muslim world, hundreds of foreign terrorists flooded into Iraq across its unguarded borders. They found unprotected weapons caches that they are now using against U.S. troops. Foreign terrorists are believed to make up a large portion of today's suicide bombers, and these foreigners are forming tactical, ever-changing alliances with former Baathist fighters and other insurgents. "The al-Qa'ida membership that was distinguished by having trained in Afghanistan will gradually dissipate, to be replaced in part by the dispersion of the experienced survivors of the conflict in Iraq," the report says ("Pervasive insecurity," p. 2). According to the NIC report, Iraq has joined the list of conflicts - including the Israeli-Palestinian stalemate, and independence movements in Chechnya, Kashmir, Mindanao in the Philippines, and southern Thailand - that have deepened solidarity among Muslims and helped spread radical Islamic ideology. ("Pervasive Insecurity," p. 1).
  • Chairman of the National Intelligence Council, Robert L. Hutchings, in an April 8, 2003, speech entitled "The World After Iraq," candidly recognized the new era of conflict between former allies in NATO and EU, such as the impact of the Iraq war on German-French-British-Russian-U.S. relations and a likely "nearterm spike in anti-American terrorist activity and an expansion of the recruitment pool of extremist groups and would be terrorists" as a result of "regime change in Iraq" and the "U.S. military action and occupation." Pp. 3, 4-5. He recognized the "lack of political culture, weak civil society, and strong vested interests against reform" in Iraq. Pp. 5. He also spoke of the impact on Arab states such as Egypt, Jordan, Saudi Arabia, Syria and Iran. Id.
  • Director of Central Intelligence Porter Goss's testimony on February 16, 2005, before the Senate Select Committee on Intelligence, entitled "Global Intelligence Challenges 2005: Meeting Long-Term Challenges with a Long-Term Strategy" recognized that "[t]he Iraq conflict, while not a cause of extremism, has become a cause for extremists." It discussed the partial success of insurgents in discouraging voter turn out and the need for Iraqi forces to develop the capacity to provide security. The lack of such security is recognized as inhibiting reconstruction and economic development.
  • Asked whether the president believed the July 2004 NIE was accurate, White House Press Secretary Scott McClellan responded: "It talks about the great challenges to Iraq's democratic future. . . . It makes clear that it's important to stand with the Iraqi people as they face these challenges. The stakes are very high in Iraq. There is progress being made on the five-point plan that the President outlined for success. There are certain areas where there are ongoing difficulties and security threats. The Prime Minister of Iraq has made it clear that he is determined to address those situations. They have addressed the situations in Najaf and Kufa, and have made a lot of progress in Samarra, as well." [White House News Briefing with Scott McClellan, White House Press Secretary (September 16, 2004)]
  • President Bush's first reaction on September 19, 2004, was that the Estimate is merely a "guess." He followed this up on September 21, 2004, by saying, "I used an unfortunate word, 'guess.' I should have used 'estimate.'" He explained "[t]he CIA laid out several scenarios. It said that life could be lousy. Life could be okay. Life could be better." ["U.S. Intelligence Shows Pessimism on Iraq’s Future," Douglas Jehl, The New York Times, Sept. 16, 2004, at A1; Dana Priest and Thomas E. Ricks, "Growing Pessimism About Iraq,"The Washington Post, at A1, Sept. 29, 2004.]

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