President’s Daily Briefs May Be Withheld, Court Rules

Two editions of the President’s Daily Brief (PDB) dating from the Johnson Administration may be withheld from disclosure by the CIA, a federal appeals court ruled last week (pdf).

The court deferred to a CIA argument that despite their age, the 40 year old records could compromise protected intelligence methods.

However, the court rejected a CIA claim that the PDB is itself an intelligence method that is inherently exempt from disclosure. As a result, each decision to withhold a particular PDB must be independently justified.

The records were sought by political scientist Larry Berman, who was represented by the San Francisco law firm Davis Wright Tremaine and the National Security Archive.

In explaining its decision, the appeals court suggested that CIA had too much legal authority to withhold information from the public.

The court noted its view that the Agency’s authority to withhold is so expansive that it “might be contrary to congressional intent,” and the judges recalled that in a 1992 decision (Hunt v. CIA), “we have invited Congress to ‘take the necessary legislative action to rectify’ that disparity.”

“Congress, however, has to date left the NSA [National Security Act] materially unaltered and so we must continue to afford the CIA broad deference.”

A copy of the September 4 appeals court ruling in Larry Berman v. Central Intelligence Agency is here.

See also “CIA briefs kept sealed: Court rules against UC Davis professor” by Sharon Stello, Davis Enterprise, September 5.