A federal appeals court has ruled against the release of the final volume of CIA history of the Bay of Pigs invasion in Cuba. It decided the agency could keep it secret under an exemption in the Freedom of Information Act (FOIA) that is supposed to protect inter-agency or intra-agency memorandums or letters from being subject to release.

Judge Brett Kavanaugh, who was appointed by President George W. Bush and played a lead role in drafting the “Starr Report” urging impeachment of President Bill Clinton, wrote the US Court of Appeals for the DC Circuit’s opinion.

“The CIA here invokes the deliberative process privilege,” Kavanaugh writes. “A form of executive privilege, the deliberative process privilege covers deliberative, pre-decisional communications within the Executive Branch. One of the rationales for the privilege is to encourage the candid and frank exchange of ideas in the agency’s decision-making process.”

Kavanaugh adds, “We have held that a draft of an agency’s official history is pre-decisional and deliberative, and thus protected under the deliberative process privilege.”

But there are a few critical questions to ask in response to this decision: What exactly is the CIA keeping concealed? Why have the other volumes of draft history been released by the agency with a few redactions? Is this even a reasonable interpretation of the law?

The lawsuit was filed by the National Security Archive. It already lost in the DC District Court and appealed. Again, a court permitted the CIA to prevent the release of information by invoking what FOIA experts like to call the “withhold whatever you want to withhold exemption.”

Fortunately, Judge Judith Ann Wilson Rogers, appointed by Clinton, wrote a dissenting opinion that articulates many of the problems with the federal appeals court’s ruling. [She also took the position that the case should have been remanded to the DC District Court.]

The history was written by Jack B. Pfeiffer. Volumes I, II, and IV, as Rogers notes, were released in 2011 with “minimal redactions” after the National Security Archive won a FOIA lawsuit.

Under the Kennedy Assassination Records Act, Volume III was released in 1998. “Significantly as well, the agency released Volume IV in 1987 as a ‘draft document,’ ‘before its completion’ as an official agency document. This was “in response to the staff historian’s own FOIA request. The CIA re-released the draft with fewer redactions in response to the FOIA request submitted by the National Security Archive.

Rogers argues, “Neither the majority opinion nor the agency’s current declarations explain why this particular draft document is deliberative, i.e., why release of the draft of Volume V ‘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.”

The chief historian in 1987, according to Rogers, “addressed potential harm from release of the draft of Volume V,” but this was not apparently incorporated in any analysis shared in this lawsuit. Also, this historian wrote a declaration where it was assumed Volume V would “eventually go through the full revision, editing and review process.” In other words, it was not supposed to be something that was kept secret for all of eternity.

Additionally, one of the arguments made by the National Security Archive was, even if covered by a FOIA exemption, the volume contains factual material that could be segregated and released.

Kavanaugh rejected this argument suggesting, “A draft agency history may not be dissected by the courts in the manner suggested by the FOIA requester here.” He contends that a historian’s “selection of facts in history” is a “policy-oriented judgment” to be protected. On the other hand, Rogers disagreed.

“The agency has provided this court no basis to conclude that all factual material in the draft history reflects deliberative judgments,” she writes. And, in her view, the court erred by not properly addressing whether any portions of the volume could be segregated because there was material that was not exempt.

The appeals court would not consider the “passage of time” as a factor that would diminish the possible harm of releasing the documents, which is particularly alarming because it grants government agencies that engage in sensitive matters such as covert operations wide discretion to conceal this conduct from citizens forever and ever.

Citizens for Responsibility and Ethics in Washington (CREW) has challenged the “withhold whatever we want to withhold” exemption. In particular, it removes the fear of democratic accountability when something is taking place that is of great importance. It makes it possible for government to completely ignore the public’s right to know if there is something potentially embarrassing they want to keep secret.

There is no expiration date on the privilege. Something like the Bay of Pigs invasion, which happened fifty years ago and would have little impact on the state of affairs in the world if it were subject to more transparency, does not ever have to be released.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."