Archive Sues CIA for Speedy Review
of Key Iraq Document
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
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
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
- Unclassified National Intelligence Council report entitled
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,
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.]