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Actual intelligence method, declassified.
Actual deliberative process, declassifed.
Intelligence method?
Deliberative process?
Still secret.
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23 December 2004
Professor Sues CIA for President's Daily Briefs
Vietnam Expert Seeks Historic PDBs from Johnson Years;
Challenges CIA Blanket Policy of Non-Release

12 April 2004
The President's Daily Brief
The Declassified August 6, 2001 PDB and More


JUDGE GRANTS IMMORTALITY TO PRESIDENTIAL PRIVILEGE

WITHHOLDS TWO 1960s CIA DAILY BRIEFS TO LBJ
DESPITE RELEASE OF 35 OTHERS WITH NO DAMAGE TO U.S.

PUBLIC CAN HEAR TAPES OF LBJ AND CIA LEADERS DELIBERATING,
BUT "DELIBERATIVE PROCESS" KEEPS TWO MEMOS TO LBJ SECRET

JUDGE CALLS DAILY BRIEF AN "INTELLIGENCE METHOD",
ALTHOUGH ACTUAL METHODS FROM 1960s LARGELY DECLASSIFIED,
SUCH AS 800,000 SPY SATELLITE PHOTOS, GULF OF TONKIN INTERCEPTS,
AND SOVIET, CUBAN AND VIETNAMESE AGENT REPORTS

LEVI ADOPTS SPECULATIVE DAMAGE CLAIMS BY CIA OFFICER
WHO RELEASED TWO OTHER LBJ BRIEFS THAT LACKED COVER SHEET

Posted July 15, 2005

For more information: Professor Larry Berman 530/752-3076
Duffy Carolan, Davis Wright Tremaine 415/276-6500
Thomas Blanton, National Security Archive 202/994-7000

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.

Levi accepted Buroker's generic claims that release of two more LBJ Briefs "could" impair the CIA's mission by revealing its sources and methods, even though Buroker never asserted that release of 35 other PDBs and excerpts (including a 6 August 2001 PDB given to President Bush about the Bin Ladin threat) have actually done any identifiable damage to the CIA's mission or to U.S. national security.

The plaintiff in the case, noted Vietnam scholar Larry Berman, commented, ""Judge Levi's decision is extremely disappointing to me and certainly discouraging for historical inquiry. Judge Levi has redefined the meaning of Freedom of Information and presidential privilege. In doing so, he becomes another foot soldier in the administration's war on restricting public access to government documents, in this case for decisions made over thirty years ago."

Levi's opinion states that "the public's interest in protecting frank exchange between the leadership of the CIA and the President could not be greater," ignoring the fact that C-SPAN and various web sites routinely broadcast actual declassified White House tapes that contain frank discussion between Presidents Kennedy, Johnson and Nixon and their CIA directors - surely a far more "deliberative" exchange than the factual briefing material contained in the two Briefs at issue in the case.

"Judge Levi doesn't understand that he actually damages our national security with this opinion, because he upholds a farcical secrecy claim about which currently serving officials privately chuckle, and thus he encourages leaks by undermining the credibility essential to keeping our country's real secrets," said Thomas Blanton, director of the National Security Archive at George Washington University, whose general counsel, Meredith Fuchs, represented Professor Berman in the case, along with Thomas Burke and Duffy Carolan of Davis, Wright, Tremaine.

"By accepting at face value the hollow claims of the government without even looking at the two, nearly 40 year-old PDBs and despite substantial evidence contradicting the specious claims by the government that disclosure of even one word of the PDBs poses a threat to our nation's security, Judge Levi has set the bar dangerously low for continued secrecy over matters of historical importance," said Carolan.

Levi's opinion reverses the plain meaning of one of the key exhibits in the case, a fully declassified CIA history of its briefings to Presidents and presidential candidates, which states that "CIA did not receive from Johnson the steady presidential feedback it had received from Kennedy." In Levi's hands, this clear debunking of the PDB as any kind of direct dialogue between LBJ and CIA turns into the following phrase: "President Johnson did regularly communicate his reactions, criticisms, and requests concerning the PDBs to the CIA through one of his top aides." In fact, nowhere in the CIA history does the word "regularly" appear in regards to Johnson's PDB communications. Instead, the CIA history compliments a Johnson aide for having been "consistently helpful" in communicating.

The Sacramento-based judge rejects the statutory language of the Freedom of Information Act requiring that "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." Levi's opinion holds the contrary:

1. "[R]elease of any portion of the requested PDBs necessarily constitutes information about the application of an intelligence method." In fact, hours of public testimony by top Bush administration and CIA officials about the 6 August 2001 PDB and the process that created it, as well as the declassified CIA history of presidential briefings and 35 examples of PDBs and segregable portions on the public record, have already declassified this particular "method," if it really is a method.

2. "[A]ny intelligence information that is not classified is nevertheless part of a mosaic of PDB information that could provided damaging insight into how the CIA conducts its intelligence business." In fact, none of the declassifications to date have actually done any damage, not even the CIA's Buroker claims any identifiable damage, and both Buroker and Levi can only use the speculative "could."

3. "[T]he presidential communications privilege applies to documents in their entirety." Yet the government reviewers of the White House tapes have released thousands of hours to the public featuring JFK, LBJ and Richard Nixon deliberating with their top advisers including various CIA directors. Despite this, Levi says, two factual briefing summaries totaling fewer than a dozen pages are privileged, forever.


Actual Intelligence Sources and Methods

Signals intercepts of North Vietnamese intelligence traffic pertaining to the Gulf of Tonkin incident

CIA documents on operations against Cuba

Satellite and other imagery previously declassified

CORONA: America's First Satellite Program
Imagery and documents from the CIA Web site

The CIA and the U-2 Program, 1954-1974
A history available on the CIA Web site

America's Eyes: What We Were Seeing
Historical Imagery Declassification Conference sponsored by the National Imagery and Mapping Agency and University of Maryland University College
[Sample images available at globalsecurity.org]


Actual Deliberative Process

Telephone conversation - President Lyndon B. Johnson and CIA Director William "Red" Raborn, May 12, 1965 (WMA - 7.1 MB)

Excerpt from Michael Beschloss, Reaching for Glory (New York: Simon and Schuster, 2001, p. 42) - The "checklist" referred to by Bundy is the President's Intelligence Checklist, the immediate precursor to the President's Daily Brief.

Saturday, September 26, 1964, 11:17 A.M.
...
LBJ
:... Looks like intelligence out there doesn't look good.

McGeorge Bundy, Special Assistant to the President for National Security Affairs: That checklist is a shade--we almost didn't send it to you because I thought myself that it was a shade blue, not quite a balanced account. They are a little bit covering their flanks over in the Agency and making sure that they are the ones that are giving the gloomy news first...

Other examples of declassified LBJ-CIA telephone conversations

LBJ-McCone, 11/30/1963
LBJ-McCone, 02/08/1964
LBJ-McCone, 08/05/1964
LBJ-McCone, 01/08/1965
LBJ-McCone, 02/22/1965
LBJ-Raborn, 04/29/1965
LBJ-Helms, 04/30/1965
LBJ-Raborn, 05/03/1965

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