Declassified PDB Info is Still Classified, CIA Says

Even though certain information concerning the President’s Daily Brief (PDB) was redacted and declassified for use in the prosecution of former vice presidential aide Scooter Libby in 2006, that same information is nonetheless “currently and properly classified,” the Central Intelligence Agency said (pdf) last week.  The Agency denied release of the material under the Freedom of Information Act.

The existence of the declassified PDB material was disclosed in a January 9, 2006 letter (pdf) from Special Counsel Patrick J. Fitzgerald to Mr. Libby’s attorney.  He wrote:  “In response to our requests, we have received [from CIA] a very discrete amount of material relating to PDBs and discussions involving Mr. Libby and/or Vice President Cheney concerning or relating to the PDBs.  We have provided to Mr. Libby and his counsel (or are in the process of providing such documents consistent with the process of a declassification review) copies of any pages in our possession… in the redacted form in which we received them.”

Since declassified PDBs are comparatively rare, we submitted a Freedom of Information Act request in February 2006 for a copy of the PDB-related material that was declassified by CIA for the Libby prosecution.  Last week, the CIA responded that it had located the requested material but that “we determined [it] is currently and properly classified and must be denied in its entirety.”

This is a somewhat puzzling development.  It is a pity that the CIA Inspector General does not investigate violations of the law of non-contradiction. (Aristotle, Metaphysics, 1005b12-20.)

With few exceptions, the CIA has consistently opposed public release of PDBs, reflecting an uncompromising view that PDBs are intrinsically sensitive, irrespective of their age or contents, and should not be disclosed.  (The Agency did reluctantly agree to disclose the August 6, 2001 PDB item entitled “Bin Ladin Determined to Strike in US” (pdf) at the insistence of the 9/11 Commission.)

When challenged under the Freedom of Information Act, courts have upheld the CIA’s refusal to release specific PDBs.  But a 2007 ruling in the Ninth Circuit Court of Appeals rejected the CIA view that “PDBs are categorically exempt from FOIA.”  In particular, the court denied the CIA assertion that the PDB itself is an intelligence method that is protected by law.  “Although PDBs will typically contain information that reveals intelligence sources and methods, this does not mean that PDBs themselves are intelligence methods.”

“If we were to accept the CIA’s logic,” the court said, “then every written CIA communication — regardless of content — would be a protected ‘intelligence method’ because it is a method that CIA uses in doing its work…. We decline to adopt such a boundless definition, and instead hold that whether or not a particular document used by the CIA in its ordinary course of business is an intelligence method depends upon the content of the document.” (Larry Berman v. Central Intelligence Agency, September 4, 2007).

Although the CIA claimed that the Libby PDB-related material that was declassified in 2006 is now “properly classified,” the Agency did not invoke the FOIA exemption for classified information.  Instead, it denied release of the material on the basis of FOIA exemption (b)(3) which includes statutory protection for intelligence methods.

Update: Marcy Wheeler at Emptywheel has some of the PDB-related exhibits that were introduced at the Libby trial, along with her own insights into this peculiar turn of events.