Don't mind me. Photo: (iStock)
'Tis the week to pick on the Central Intelligence Agency.
And I actually don't want to pick on them. They've done a lot of bad stuff, and they've done a lot of good stuff, and the people who work there, by and large, are as good as you might think you are.
CIA historians? Usually, quite awesome. But the lawyers who try to protect the CIA's historical equities? Bad people. Bad, bad people.
Nate Jones, the senior FOIA researcher at the National Security Archive, has been trying to pry loose a declassified copy of the CIA's internal history of the 1961 Bay of Pigs invasion. In particular, Jones wants to see a draft of the history before it was edited.
Jones has no problem with the agency's efforts to protect sources and potentially still-sensitive methods. What he wants is a less-varnished version of the CIA's own recounting of the events. And 50 years after the fact, there is no good argument the CIA can make that it must withhold such an account to protect national security or even the agency's public image. In fact, it doesn't have to make an argument at all. The document just isn't that sensitive given all the other stuff that has been released, including by the CIA itself. (The CIA's one claim to this end is that releasing drafts would "confuse the public." Heh.)
Instead, the agency, which cannot bring itself to actually trust the historical community, wants to establish a consistent legal precedent about something called "predecisional" documents. The Freedom of Information Act allows executive branch agencies to withhold information about the internal process and internal debates that led to particular formal statements or actions. Understandably, the ability of advisers to advise freely would be clouded if they knew that their private advice would automatically become public. While advocates of transparency might say, "yeah!", even the FOIA framers understood the role that private advice plays in promoting good policy. So it allows agencies to exempt from disclosure such "predecisional" material.
The CIA has taken this exemption to an extreme. The "predecisional" documents in question relate to an internal history. A history is not a policy decision. The effect this has is to make it very hard for FOIA researchers to know what documents to request and then what to draft an appeal about when the agency decides not to release it.
The CIA has always claimed that its unique activities give it the right to stretch the spirit of FOIA to its breaking point. As Jones points out, the agency "creates entire classes of documents" that it believes should be automatically withheld, including so-called "operational files," which the CIA insists it cannot individually review because operational files by their nature include the sources and methods the CIA can legally withhold. If you request something that the CIA considers to be an "operational file," it will either exercise its right to say that the file may or may not even exist, or it will deny the request in full because the CIA considers the request to be automatically invalid.
When it comes to historical records, the CIA can easily claim that any produced history is a "draft," because it is always revising its histories.
That's not the way FOIA is supposed to work.
The agency has released a trove of interesting documents, with many of them portraying the CIA in a poor light.
Selective releases do not, however, build your transparency and openenss cred. The CIA does not do justice to history.
(DISCLOSURE: I am working on a book with Nate Jones about an unrelated subject.)
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