Investigacion Jorge Eliécer Gaitán, Jorge Eliecer Gaitan, Bogotazo

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________________

PAUL WOLF,

Plaintiff,

v.

CENTRAL INTELLIGENCE AGENCY, et. al.

Defendants.
____________________________________________

Civ. No. 01-00729 (PLF)

August 14, 2002

TRANSCRIPT OF MOTION HEARING
BEFORE THE HONORABLE RICHARD J. LEON
UNITED STATES DISTRICT JUDGE

APPEARANCES

For the Plaintiff

Daniel Alcorn, Esq.

For the Defendant

Diane Sullivan, Esq.

Stephanie C. Hartell, Esq.
Office of General Counsel
Central Intelligence Agency
Washington, D.C. 20505

Court Reporter Patty Artrip Gels, RMR
US District Court
333 Constitution Avenue, NW
Washington, D.C. 20001

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.

P R 0 C E E D I N G S

COURTROOM DEPUTY The matter of Paul Wolf versus Central Intelligence Agency, et al. Civil Action 01-729. Daniel Alcorn for the Plaintiff and Diane Sullivan and Stephanie Hartell for the Defendants.
THE COURT Good afternoon, everyone. I think we are here to hear the arguments on the cross motions for Summary Judgment. Since we have both pending, why don't we hear from the Government first and then from the defense and then I will give each side a chance to respond in the situation here.
MS. SULLIVAN If I may, your Honor, what we have pending as I understand it is the CIA, we have two Defendants here, FBI, that cross motion is pending. What is pending with the FBI is only the fee issue, not the cross motions.
THE COURT Right.
MS. SULLIVAN And so that may change the order because it is Plaintiff's motions for the fee. It is his motion. We don't have a cross motion. We just have a reply.
THE COURT Oh. All right. Well, we will hear from the Government first and then we will hear from the Plaintiff and then we will give each side a chance to respond.
MS. SULLIVAN Fine. If I may get my notes.
THE COURT You may.
MS. SULLIVAN Let me if I may also tell you how the Government plans to proceed. With me is Stephanie Hartell from General Counsel's Office at CIA.
THE COURT Welcome.
MS. SULLIVAN And she has handled the laboring of the government's papers and she will be arguing the Motion on the Glomar response and then I will take the fee issue.
THE COURT Um-hmm.
MS. SULLIVAN Let me indicate two things and get those out of the way having read Plaintiff's Fee Request but also his reply to our Motion. One is that somehow in the initial stages he applies to this Court that the FBI really hasn't met its responsibilities under the FOIA arguing in part that there was a delay in responding to this FOIA Request.
I think the factual background of this delay is significant. First and foremost, there are two delays. One, of course, is processing the initial FOIA Request which I will explain; but also the delay in getting his FOIA Request to the FBI.
At the time in question in November, our office as well as most Government agencies, but particularly the Department of Justice and components were having unbelievable mail problems; and recognizing that I made certain instructions to the staff that was quite out of the ordinary from how the process works.
Apparently this wasn't done. We found an error. We then tried FedExing. What happened then is they weren't delivering FedEx's for two or three weeks that none of the staff knew about. I can go ad nauseum on that, but to make a long story short, you have got to attribute a good four months of the delay to myself, my office, and our staff coping and dealing with this mail problem, not just in this case, but many, many others.
THE COURT All right.
MS. SULLIVAN Now, we get to the processing of the FOIA Request. I think it is pretty clear that they went through the normal searches that would be done in any number of cases and then we did the release, we then did our Motion.
It was clear from their response to our Motion that the FBI had made a mistake and why. Clearly this is attributable to the date of the events.
When the FBI went over, transferred over to the electronic system in 1975 or so, they just didn't turn everything to electronic and this was one of those. We then started the search.
This search consisted of -- because it wasn't in the electronic system -- literally going to the FBI's warehouse and files and going through three by five cards.
It then became clear to the FBI that this was going to be a significant search and copying effort at which time the FBI noted that they would continue and certainly process and release the documents but wanted to be paid.
Generally speaking a fee waiver request is made at the time that the initial FOIA Request is made because there is the automatic presumption that indeed you will pay the fees up to particular amount. It was -- arguably we should have alerted the Plaintiff sooner in the retrievable process, but we were trying to expedite this, the litigation in this case, to respond.
And I think that that factual pattern does not sustain any argument or implication that the FBI has not or is not complying with it.
Now directly to the fee issue, the merits of the fee issue that we have. Plaintiff argues that indeed the release of this information is in the public interest and what does he contend that the public interest is?
He essentially tells the Court that there is a great interest in what he is doing, that the public has a significant interest in the techniques and methods of how the Government, i.e., in this case the FBI works and that it does have implications for the present U.S. aid program to Colombia and the voting public.
If you read those affidavits, let's see, he simply does not sustain his burden of showing that it is in the public interest and why. There are four factors that the Justice Department Regs indicate and we have addressed them separately in our brief.
But by and large the discloseable portions of the material in question -- and it is clear from Plaintiff's papers that they are really seeking sources, informants, networks, intelligence gathering techniques -- that in any event if they were processed would be validly subject to exemptions and wouldn't be waived just because this occurred in 1948.
Why? Families are still alive. Political upheaval, they have battles among themselves down there. It is a different political climate. Families would be embarrassed, retaliation among families for father and grandfather would occur. They just wouldn't do it.
More importantly it wouldn't permit the Government agencies now to obtain sources overseas and the case law is just rampant in that. And more importantly that the disclosure has to be meaningful and informative. Most of the meaningful and informative information has essentially -- it is so remote. It has been the subject of investigations on the Hill in 1948 and '49.
The reason Plaintiff has this information is that a lot of that information unredacted is already at the archives so there is no indication at all that this is --
THE COURT Wouldn't that be an argument in favor since it has already been released and already been allowed to get into the public stream through a Congressional investigation, wouldn't that be an argument in favor of allowing the remaining records relating to these events to be similarly dispersed?
MS. SULLIVAN But only subject to the redactions and that's my point is that the passage of time does not diminish the valid FOIA exemptions and under the regulations in the case law the Agency is required to look at those documents that it has and compare from what is already out there and to see whether it is going to significantly, again the language of the Reg and the language of the case law, would what is remaining significantly contribute to what's already there?
But we still haven't gotten to the public interest. I am just saying in terms of a scholarship. And that I don't think the Plaintiff has sustained his burden.
Essentially this subject matter which is -- which appears from the attachments to his affidavit generated in large part by the daughter of Mr. Gaitan and similar type people that may have interest in Cuban nationals there at the time in the Spanish speaking world may still have a significant interest in this, but it clearly is not -- it is so remote as the cases and the regulations refer to and it is so attenuated to any significant contribution to how the FBI worked, particularly in light of the fact that the FBI office closed a year before the assassination in question.
And there is no indication that there is in assessing the public interest that there really is a broad audience for this. This is the only FOIA Request received by the FBI on record relative to Mr. Gaitan or these events.
Another factor to consider is dissemination. The Plaintiff indicates that he is a researcher and lecturer. In support of this, he advises the Court that he was asked to go to South Africa with the black caucus on some program or lecture for civil rights involving a completely different FBI program Co-Intel which is now a historical involvement.
He then submits to you a letter in Spanish -- I mean an article in Spanish published in the Miami Journal where a newspaperman praised him no doubt receiving information from his web site or being on his mailing list. I think the Judicial Watch case addressed by Judge Robertson and cited in our brief addresses this idea that just because you have a web site in this day and age of web sites and computers does not meet the statutory or regulatory standard of wide dissemination to the public.
And I think we have cited that in our brief and I won't go to the quotes.
THE COURT Okay. All right.
MS. SULLIVAN To the extent that his interest in potentially publishing a book would arguably be contributing to the public on this front. And that's clearly more than speculative. Again, every case that we have cited refutes that argument as a matter of fact and law.
I mean even a respected, renown professor writing who has already published on James Baldwin, a historical figure within the United States as opposed to a foreign country, the Court has rejected his waiver fee.
And similarly the cases in this jurisdiction reject the idea that one's interests in writing a book for whatever reason, whether it be for a personal aggrandizement, intellectual exercise or even for commercial gain don't meet the standard and I am prepared to answer any specific questions that the Court may have now or maybe wait until after argument.
THE COURT Well, what I will do is I will hear from the Plaintiff on the fee issue only and then we will go back to the Summary Judgment issue on the CIA and then come back to the Plaintiff on that. I think that makes more sense. All right.
MR. ALCORN Good afternoon, your Honor. Daniel Alcorn here for the Plaintiff. The Plaintiff is here, Mr. Wolf. It is an auspicious day for him in that he has given up his successful career in business and today has started in law school; and it is his first day in law school and I think we should give him an excused absence from one class which conflicts with the time of our hearing.
THE COURT They are starting law school this early. My goodness.
MR. ALCORN But I am hoping that they will be understanding of his presence.
THE COURT Well, good luck in law school.
MR. ALCORN I did, your Honor, give him the appropriate warnings before he went to law school.
THE COURT I hope you did.
MR. ALCORN He didn't take heed.
THE COURT Don't tell him too much about the Bar Exam just yet.
MR. ALCORN Your Honor, on the Fee Waiver Motion, I think the Government misinterprets what the standard is on fee waivers. As we cited the Campbell case in the D.C. Circuit which is actually the case about the Baldwin, James Baldwin book that the Government refers to; and the Campbell case says very explicitly that researchers such as Plaintiff, archival researchers, historical researchers, scholars, journalists are favored for fee waivers and it is not the first time this has been the case law.
In the Circuit they cited another case, the Treasury employees case, which says that fee waiver requests are to be liberally construed for such requesters because the Congressional purpose in having a fee waiver was in fact to encourage this kind of archival research when it could benefit the public.
And so I think the Government's statement of the law in the Circuit is not in fact my reading of the law in the Circuit which is favorable to archival researchers such as the Plaintiff; and I think that's been very clearly made.
THE COURT Do we have any sense, Mr. Alcorn, about the burden, the financial burden, on the Government in this case and to what extent should that be a factor in the Court's assessment of whether to allow a fee waiver from your point of view anyway?
MR. ALCORN Yes. They have asked for $1,388 so far from the Plaintiff. We think it is excessive in the number of hours that are put in for what's been generated. They have said there will be substantial more search time but they seem to have a finite amount of new material to look at. One new main file they are saying and some 166 cross-references.
I don't know if it is $2,000 or $2,500. it is something that, you know, for a student is a large amount. I am not sure for the Government given their resources it really is such a large amount.
THE COURT Does the case law have the Court weigh the amount as a factor in assessing whether or not to grant an amount or not?
MR. ALCORN No, your Honor, I don't believe so. I think the fee waiver is only entitlement of the individual as the individual in the favored class and then does the he meet the other requirements that are set out in the standard.
THE COURT Okay.
MR. ALCORN And in this case he does. As the Government has mentioned, we are dealing here with historical records. We are dealing with records that one would hope would not have to be accessed through Freedom Of Information procedures.
You would think after 54 years they might be available through an archival system such as the National Archive research the Plaintiff has done to turn up some of the FBI records and other Agency files. We are dealing we very old material here.
The FBI has even said that. They had to go to the old archived materials, it is not in the index, not in the electronic index so we are dealing here with historical research and historical materials; and I think that colors both the fee issue and also the issue the CIA is going to raise because the Executive Order on classification has an automatic declassification provision for 25 years.
After 25 years material would be in bulk automatically declassified. I think that gives an idea of the standard the Executive Branch has set as to when a document goes from current use to historical status; and that's what we are dealing with here is an attempt by an archival researcher to get scholarly historical material that goes back to 1948.
And the issue that Plaintiff is seeking and the reason this is a public interest, because public interest in these cases is defined as something that will enlighten the public related to the operations of the U.S. Government. It is not that you can go and ask what the Government has on any topic overseas.
It is not the topic itself that determines the public interest. It is the question of whether it enlightens operations of the U.S. Government because the whole purpose of FOIA according to the Supreme Court is to allow the American public to ask questions about the operations of their Government.
It is not for Americans to ask questions about the operation of another Government, foreign Government, or foreign individuals. It is about the operations and activities of the U.S. Government and the Supreme Court decisions say that's so that as a democracy our citizens who each have a vote can then make decisions in their voting decisions as to whether they like the direction that the Government is headed and they approve of what the Government has done.
It is an informative process, to inform the public as to their voting decisions. That's the core purpose of the Freedom of Information Act. In this situation, as we have set out in pretty voluminous detail in the various briefs, obviously there was in 1948 quite a notable question about the performance of these Government agencies.
We know the historical circumstance the CIA was created in 1947. Up until that time the FBI had handled Latin American intelligence functions. I know in World War II the FBI was given exclusive jurisdiction over Latin America. That jurisdiction came to an end when the CIA was created in 1947.
We have events that occurred in April of 1948 so they are in the period of transition of the U.S. intelligence function from the FBI to the CIA.
Then this terrible event, uprising, the assassination of Gaitan and the uprising that occurred in Bogota, occurred when Secretary Marshall was down there and they were forming the OAS. They were having the formative meeting for the Organization of American States, a very important meeting for the U.S. Government and U.S. foreign policy.
It was really an inception meeting in the Cold War, sort of a putting together of an alliance within the Western Hemisphere in relation to the Cold War; and then as we have read this tremendous assassination occurred, the uprising occurred, Secretary Marshall was threatened, there were recriminations as obviously happens as we have seen the pattern of recriminations in the U.S. in relation to Government activity and performance.
And these questions were raised about whether the agencies had performed properly leading to the Congressional investigations which the Government spoke of, etcetera.
THE COURT What about the argument that Ms. Sullivan made that there have not been any other FOIA requests so it is hard to assess the extent to which there really is any true public interest in any of these events at all?
MR. ALCORN Well, I think it is cuts against the Government's argument that they made that this has been exhaustively researched. They are also arguing that this topic has been exhaustively researched and then they said but this is the only FOIA Request they have ever seen which means he is the only researcher who has sought these records which then to me means that these records are more important and have more value because they in fact have not been previously researched.
I think that to my mind the measure is not how many FOIA requests have been received. of course, these are such old records, people might think they are in the National Archives, but it is rather the public attention that has been put to this topic over the years. And it wasn't just in 1948 because as we know from the Studies in Intelligence article the CIA felt that this episode was so important that they had a historical scholarly article that was done internally about these events and the headline of that was, what was it, [Distant] Events Shape the Craft of Intelligence. They thought it was an important sort of thing.
Then that was released, commissioned in the late 1960s and released in the 1990s as part of their historical review program designed to get out things that they thought were of historical value.
And so it is not just the intense public interest that occurred back in 1948. It is the continuing public interest demonstrated by the way the CIA has treated this material as important material and have gotten it out through their historical review program and the Darling book as well as, the Arthur Darling book who is the official historian at the CIA who covered this topic in his official history of the CIA.
And then we have in the record the memorandum from DCI William Webster in 1989 where the Director of Central Intelligence himself determined that this history needed to be released; that it was time to release it. Apparently it was considered at very high levels. There is indication in that memo that Mr. Darling was President Bush's favorite teacher, is in that article and there are indications that Mr. Darling was seeking to get his official history released and the DCI did that in 1989.
So I think the public interest is pretty apparent from the treatment of the subject matter over the period of time and from the historical nature of the documents.
THE COURT All right. Well, unless you have some other issue to raise on the fees, any other point to make on the fees, so why don't we hear on the Summary Judgment from the CIA and then hear from you in response to that.
MR. ALCORN All right. Sure.
THE COURT Thank you.
MS. HARTELL May it please the Court, your Honor, my name is Stephanie Hartell and I represent the Defendant, Central Intelligence Agency.
Your Honor, the CIA should prevail on its Motion for Summary Judgment because the Plaintiff has failed to meet its burden to show that the Agency has waived its FOIA exemption by releasing the same information that the Plaintiff seeks in its FOIA Request and it also does not meet the well established standard of the D.C. Circuit for FOIA waiver in this context.
Unless your Honor wants me to focus on something specifically, I would like to first address the Agency's Glomar response and the law of the D.C. Circuit on this and then go through each of the Plaintiff's Exhibits and explain why it is not a waiver the Agency's FOIA exemptions.
THE COURT All right. Well, you can proceed. If I have any questions, I will jump in.
MS. HARTELL Okay. The Plaintiff made a FOIA Request to the Agency about Gaitan, a specific individual, a foreign national and the agency responded with what is commonly referred to as a Glomar response. That is to neither confirm nor deny the existence of records.
THE COURT I read that.
MS. HARTELL Yes. And in this case, your Honor, the Agency does that in all cases when we get a specific request like that because it is such a narrow request. It would reveal a very narrow intelligence interest of the agency and also could affect family members, affiliates of this individual in Colombia even though it happened 50 years ago and even though he is now dead.
As a preliminary matter, your Honor, the D.C. Circuit has well established case law on when an agency waives its FOIA exemptions. And absent a showing by a FOIA Plaintiff that the agency has released information as specific and information that matches the information released by the agency, then the agency does not waive its FOIA exemptions.
And in this case, your Honor, the agency pursuant to FOIA exemptions B1 and B3 GLOMARed the Plaintiff's FOIA Request. This standard has been strictly adhered to the in D.C. Circuit and by the D.C. District Court and the Plaintiff bears the burden of pointing to specific information that matches and is as specific.
And that's a very important criteria that a Plaintiff can't use as a -- can't use this as a vehicle to get more specific information than what has already been released or as the D.C. Circuit stated, this would be a disincentive for Federal agencies to release any information if when they release a little information, a FOIA Plaintiff can then come forward and get information which was not acknowledged publicly.
THE COURT Now, in this case, Miss Hartell, the CIA's disclosure occurred 50 plus years ago and, of course, before there was a FOIA.
MS. HARTELL Yes.
THE COURT There was no FOIA statute back then.
MS. HARTELL That's right.
THE COURT I doubt they would have ever dreamed such a thing up; but, in any event, there was a Congressional inquiry --
MS. HARTELL Yes.
THE COURT -- that they were responding to and in connection with that they made certain disclosures and they also -- the Agency's Director testified about it.
MS. HARTELL He did.
THE COURT Now, does the record indicate -- again now I am asking only about what's publicly known -- does the record indicate to what extent if any the Agency in preparing those disclosures and in preparing the testimony of the -- I should say the Director to testify -- made any conscious decisions to disclose certain information relating to these incidents but not others?
MS. HARTELL No, there is no indication in the record. The Agency -- in fact, I don't know whether the Agency has records, does not have records on Gaitan specifically, but when the DCI testified he was testifying to refute this purported intelligence failure at the time discussing political events and upheaval in 1948 Bogota and was not there to address Gaitan or his assassination.
His assassination was a significant event that happened during the upheaval, but that was not the subject of the Congressional inquiry.
THE COURT So it is possible or it might even be equally possible that the Agency before it made any disclosures or before the Director made any disclosures consciously decided that it would disclose certain information but not disclose other information?
MS. HARTELL That's reasonable. I don't know whether that's in fact true or not.
THE COURT Because Congressional oversight as it exists today did not exist back then, did it?
MS. HARTELL No.
THE COURT There were no intelligence agencies in the House or the Senate.
MS. HARTELL That's right.
THE COURT And so the House Committee, I think it was a House Committee in the case in question was not in a position as the House Committee is today, HPSCI, to have full access to the CIA's most classified information and have an almost partnering type relationship with the Agency prospectively as well as after the fact, isn't that true?
MS. HARTELL Yes, it is true.
THE COURT Right. So it is possible at least that what the Agency disclosed back in '48 I guess it was only part of what it knew.
MS. HARTELL That's true, your Honor, but it is important to focus on what in fact the Agency did disclose back in 1948.
THE COURT Okay.
MS. HARTELL And in no way did Hillenkoetter acknowledge that the CIA has records on Gaitan. It was a simply incidental description of what was going on down in Bogota and it is important for the Court to note that it wasn't -- nowhere in his testimony does he say According to CIA records on Gaitan, he was assassinated.
THE COURT Right.
MS. HARTELL And that's a significant distinction for the Agency.
THE COURT So its sources and methods in neutral information that he was revealing so to speak.
MS. HARTELL Absolutely. He didn't credit that information to anyone. I think he used pseudonyms for some of his source information but that was in describing the larger political events; and when he talked about Gaitan, it was in fact very brief because it was the most significant event, I think that happened during the uprising.
THE COURT If I understand you correctly, it is the Agency's position that even though it is 50 years later that the sources and methods that were used perhaps back then theoretically speaking could be compromised if revealed in some circumstance, I am not saying in this specific case, but in a hypothetical circumstance?
MS. HARTELL Yes, your Honor. There are two different dimensions that you can look at this in why it would be harmful to our foreign policy and to our national defense and could be harmful to someone in Colombia.
Just to give you an example, if the CIA was collecting intelligence on some administer of gardening and statuary in country X and 50 years later we release the fact that we have a record on that person, even if we don't say what's contained in the record, the people back in country X know number one that we are collecting information from its citizens, that we are targeting this specific individual and this specific position and so not only does it put a person currently in that position in danger, it puts the person who may be deceased, their family members in danger because in these other countries, it is not unheard of for violence to occur when people are -- if there is even a rumor of affiliation with the CIA.
It can affect foreign policy significantly and that's the reason why we have these FOIA exceptions and the DCI has the authority and the requirement to protect these things, to protect people, to protect our sources and believe it or not, the way the Agency does business now is not that much different than the way it did business then.
And we have a very interesting and specialized mission and, when it comes to revealing something, sometimes the line is very thin of how we protect it; but sometimes the line is nothing more than plausible deniability.
And that's why in this case to protect people, to protect foreign policy, and to protect the national security, we deny when it comes to a request on a specific individual. If the Plaintiff had made a FOIA Request to the Agency about the event of the assassination or about political upheaval in 1948 Bogota, the Agency would have processed that, but it is protecting its sources and methods and protecting individuals and it is affiliates that we Glomar when it comes to a person in a FOIA Request.
Would your Honor like me to address the other exhibits or was the testimony --
THE COURT Well, that was critical; but why don't you go ahead on a few of the others.
MS. HARTELL Okay. Exhibit 2 which is just news accounts, basically news accounts of the testimony recount the same thing that he, Hillenkoetter testified to. Hillenkoetter did agree to an interview, but nowhere in interview does he mention Gaitan.
Exhibit No. 3 is the -- already mentioned by the Plaintiff's counsel and that's the Studies in Intelligence article entitled The Bogotazo which was published in a secret version of Studies in Intelligence in 1969. I can refer the Court to the declaration already filed by the CIA by Lloyd Salvetti who describes the Studies in Intelligence to be much like a law review of a school.
We have a disclaimer in the front of it that says the views are not the views of the Agency and we have people who aren't CIA people who write for the Studies in Intelligence. We have people who are critical of Agency policies who write for that and moreover the information that's contained in that article again does not say that we have records on Gaitan.
It simply describes the events that happened in 1948 and in describing them mentioned the fact that Gaitan was assassinated during that time.
The Plaintiff also made a supplemental filing of the book he also just mentioned a few moments ago, The Central Intelligence Agency. Your Honor, that book is more than 400 pages in length and only a few of them refer to this controversy of whether the CIA failed to warn the United States Government about the potential for upheaval in South America.
Again an incidental mention of Gaitan. No confirmation of whether or not the CIA has records on him.
And Exhibit No. 4 is a printout from the web of the CIA's historical release program and the Plaintiff asserts in his cross motion and asserted again here today that Executive Order 12958 Section 3.4 requires that the CIA automatically declassify information that's more than 25 years old.
As an initial matter, the declassification program has been extended to April 2003; but aside from that, the same section of the Executive Order also provides a series of exemptions to the declassification program. So in other words the CIA doesn't have to release everything that it has in its records after 25 years if there is information that would reveal sources and methods or be harmful to national security, the Agency does not have to release those records and can keep them classified.
THE COURT Can that decision from your point of view by the Agency ever be reviewable?
MS. HARTELL The decision of whether
THE COURT Of whether or not something is actually qualified for an exemption?
MS. HARTELL In Section 3.4 it mentions that the DCI has the discretion to make a declassification decision and I am not sure on your point precisely, you Honor, but certainly in other sections like weighing the public interest, there is no judicial review of that.
So we have a general declassification requirement, but the DCI because he has specialized knowledge of what happens in the world of the CIA can keep certain things classified for as long as he deems it is important to or appropriate.
If I could address just a couple other arguments that the Plaintiff put forth.
First of all, he states that the CIA operational files lose their exempt status if they are the subject of a Congressional inquiry and I would like to echo what I said earlier that the subject of that inquiry was not Gaitan. The subject of the inquiry was a potential intelligence failure. Also --
THE COURT So you would agree with the premise but not its application to the facts in this case?
MS. HARTELL Absolutely not. The FOIA Request was very specific. Gaitan was the subject. The Congressional inquiry was not the assassination of Gaitan. It was a potential intelligence failure and those two things are very distinct.
The Plaintiff also asserts that the CIA failed to conduct a public interest balancing test set forth in Executive Order 12958, as I just said, the Agency is not required to engage in a balancing test if the DCI deems that the material at issue is too sensitive to be declassified and that's not subject to judicial review.
One final thing is the Plaintiff attached the National Archives case which is a D.C. District Court case of 2001 where the Agency actually lost its Glomar and the Court determined that the Agency had waived its Glomar defense. Interestingly the Plaintiff didn't attach the final opinion in that case which the CIA ultimately won.
We did not release any information in that case. The Plaintiff had identified in the public record where the Agency acknowledged it had records on heads of state. Their FOIA Request was on heads of state. So we lost our FOIA, but later when the Judge applied the standard for a complete FOIA waiver, she very strictly adhered to the test articulated in Fitzgibbon which is the specificity test that it must match and that it must be an official disclosure and the CIA did not have to release records on what heads of states we had or how many we had.
So, in other words, because the Plaintiff in that case couldn't point to something specific in the public record, we were not required to release anything and the Judge determined that we had not waived our FOIA exemption in that context. Do you have any questions?
THE COURT That will be fine.
MS. HARTELL Thanks.
THE COURT We will hear from Mr. Alcorn.
MR. ALCORN Your Honor, the Government concedes that the Director of Central Intelligence also has the authority to release information.
He has the obligation to protect information, but he also has within himself the ability to release information and that is what is at issue in this case because the public testimony that we have appended to our cross motion before Congress, the Director of the CIA at that time, Admiral Hillenkoetter, decided in his discretion in that position to release publicly certain information and information that he released does respond to my client's Freedom of Information Request.
The request is not for everything about Mr. Gaitan's assassination. The request language is for everything concerning Mr. Gaitan.
And when you look at the testimony of Admiral Hillenkoetter, you will find that in many instances the testimony concerns Mr. Gaitan. He describes his political force in Colombia. He describes the political background in Colombia.
He when it comes to the assassination he gives the story about the assassination, who committed the crime and what the motive was and the crime. But even more than that he reads verbatim into the record and for the press from CIA intelligence reports in fact secret until the Director of the CIA decided to release them in his legal authority to do so and these specific intelligence reports concern Gaitan.
They mention him. They mention details about his political work and his activity. They mention details of his political party and activity in Colombia and so what we have is a case which actually does meet the standard of the D.C. Circuit cases as difficult as it is to meet which is reading verbatim from documents that respond to a Freedom Of Information Request that are responsive rationally and logically to what was requested; and our contention, your Honor, is that having been done, the Executive Order that exists currently on classification does not allow reclassification of information that has been released and publicly disseminated as this clearly was.
THE COURT Mr. Alcorn, though, isn't it possible at least in theory, of course, none of us knows I don't think among the six of us sitting here, isn't it possible in theory that when the Admiral gave his testimony, that he based on either advice and counsel with others within the Agency or on his own judgment provided Congress with excerpts from materials that they had that he in his judgment or with the consultation of others thought would not be harmful to the national security, would not compromise sources and methods and yet would also be helpful to the Congress in dealing with the problems it was wrestling with and, therefore, revealed some of what the Agency had in its, for the sake of discussion, bank of knowledge relating to this person, but not all of it and withheld from the Congress because it was a different kind of oversight back then, they did not -- this was not the House Intelligence Committee of today nor was it intended to be.
They didn't have the kind of oversight that Congress has over the CIA today. And so isn't it possible the Admiral decided, well, I will give certain information to the Congress to help them deal with the problem they have, hold back other information because it might compromise sources and methods, and as to that which it gave certainly that's part of the public domain and, if that happened theoretically, the Agency may be doing nothing more today by classifying or I should say qualifying this as exempt under a FOIA system that didn't exist back then than what was done 50 years earlier in the absence of a FOIA system?
MR. ALCORN It is entirely conceivable that the Director kept back information. It is clear from the transcript he used Mr. X and Mr. G to protect his sources and so the actual information he provided was redacted to delete the names of the sources.
So clearly that kind of thinking was going on. The Studies in Intelligence article also indicates that he spoke with President Truman before making the testimony and it doesn't say that President Truman said go do this, but their consultations were that high, that the President and Director of Central Intelligence discussed what was happening prior to his response.
And I believe the Studies article says the President encourages him to refute these allegations against the Government. So the indications are that the responsible, legal, political officers of the Government made a decision to release certain information which was certainly within their power to do so.
What I think is wrong is for today the CIA to then say we can neither confirm nor deny that we have any documents that mention this individual when back in the historical record, the contrary decision was made at that time.
I am contesting the use of the Glomar to cover what is illogical and irrational. That is, that once the DCI has released and read from documents, not even given general testimony, he read verbatim from intelligence reports that contain information about Mr. Gaitan. And those are responsive to our Freedom of Information request. What I think is illogical and improper is to come back now and be able to assert we can neither confirm or deny that we have any such materials.
If the CIA has additional materials as you indicate might be possible, the proper approach is for them to process and release to us the segregatable materials that can be released. The statute itself requires release of segregatable materials and the Circuit has been very strong on that to require the release of segregatable materials as we have cited in our briefs and the proper way that they should be approaching this is to assert exemptions for things that they don't want to release but give us those segregatable portions that have previously been released by being read verbatim into the record of a public hearing before the National Press Corp. by the Director at Central Intelligence in 1948. But what I assert is wrong to come back now and use a Glomar and say we are not going to admit what we admitted back in 1948 and the Executive Order 12958 does not permit reclassification of information that has been released and publicly disseminated.
So I don't see where the legal authority is to come back and essentially reclassify something that's already been publicly released by the Director of Central Intelligence.
Now, these facts are uniquely interesting facts. These are not the facts of Afshar and Fitzgibbon and the other cases in D.C. Circuit and the D.C. Circuit said you must show the match and you must show the release of the same material.
In this case, we have that because of the verbatim reading from intelligence reports into the public record. We actually have what the test is set out in the Circuit. So what I am saying to your Honor, at that point we can't accept a Glomar, can't confirm or deny material that has already been released that is responsive to this request.
Their option now is to process this request and they should be giving us the segregatable portions that have been previously released and then they should make their release determination about the rest of it. They should determine whether they are going to give us more or not. I mean that's the decision that we are entitled to under the Freedom of Information Act for them to make a decision.
It is not reflexive secrecy in these responses. That's what their legal position is -- reflexive secrecy, but that's not what the Freedom of Information Act requires. It is a discretionary decision by them to decide what they want to release and not release.
And the reason we appended the historical review program and those documents is to show that the CIA is not entirely a secrecy organization, that the CIA also has an understanding and the Director has an understanding of the release of certain information and they have begun rather elaborate programs to release historical data and historical information.
So my concern with their argument is that they are presenting themselves entirely that it is all about secrecy. Well, it is not all about secrecy. Decisions are made about the release of information as well. In fact, the sources and methods statute, what it does say, is to protect sources and methods from unauthorized disclosure. That means there is such a thing as authorized disclosure because why would you use the term unauthorized if there wasn't the flip side which is authorized.
And that's my concern is that they are asserting this sort of reflexive secrecy over something that has been previously been released in the past. They are not even getting into the more interesting issues which are, do you release this kind of historical material, and we would contend that after the 54 year period, we are talking -- that's a very long period of time, this is not material from last year or the year before or even the late Cold War period. We are talking about 54 years.
An executive order, I was unaware of an extension on the automatic classification. We filed with the Court when the automatic declassification became effective on October 17, 2001, and I have not seen a filing otherwise, but even assuming that that is an issue, the Executive Order talks about 25 years as the period for automatic declassification.
It gives you some idea of what the standard is for when a document goes beyond the need for its protection. These are at 54 years. The exhibits we have attached to our cross motion on the historical review program show that many covert operations that were conducted after 1948, the Bay of Pigs, for example, Guatemala and Honduras operations, things that happened even covert operations in the 1950's and '60s, they have released material including the operational file material under the historical review program.
So it is not that releases don't occur and it is not that information doesn't come out. It is obviously on their part a decision they are making as to what they release and what they don't, but the fact that something in the '50s or the '60s would qualify for historical release and then we are dealing with 1948 and we have an article written about this topic in 1969 that was released in the 1990s.
I don't think that what we are seeing here is a case that supports the rather draconian, reflects a Glomar response that has been asserted in this case and that is our problem.
We would also call to the Court's attention a local Rule 7.1H and the statement of material facts not genuinely in dispute that we filed to support our Cross Motion for Summary Judgement and they did not file a responsive statement of genuine issues remaining in dispute and that is not in compliance with local Rule 7.1H. And local Rule 7.1H says at that point the Court may treat those facts as admitted and those facts include the public acknowledgment that files were maintained about Mr. Gaitan and the testimony that occurred and the Studies in Intelligence piece.
And I found a case of the Circuit on this issue, Gardells versus CIA 637 F Second 770. This is the Gardells case back in the '70s and '80s in which the Circuit said that the CIA cannot ignore the requirement of the Summary Judgment Motion procedures of the Court.
The rule has been renumbered. I think the language may even be a little different than the rule we have currently, but the Circuit said that the CIA is not free to ignore those requirements; and they rejected the statement that was filed in that case and they sent the case back to the District Judge and they told the District Judge that they need to get them to follow the proper procedures because the penalty for not following the procedures is admission of the facts and that's what the Circuit warned was the penalty in the situation.
So you have procedurally basically what we are arguing procedurally we have essentially a concession, an admission under our local rules about the public acknowledgment, about the maintaining of files, and the article that was published; but even logically, even beyond the admission, just logically it does not comport that having admitted the existence of such files you can later then refuse to admit or deny that you had such files.
So we rely on the local rule and we also rely on the logic of the situation that the defense they have asserted here simply is not one that they should be allowed to use in this situation and instead what the Court should do is require that they follow the normal procedures of the Freedom of Information case and release to us the segregatable materials that they are willing to release. Maybe they are willing to release them at all at this point. It has been 54 years. That's a decision that they would have to make.
THE COURT These would be redacted materials?
MR. ALCORN Yes, the process would be that they have not made any first release of materials because they just asserted the Glomar won't confirm or deny. So if this were to proceed like a normal Freedom of Information case, then they would release to us what they are willing to release, redact what they want to redact, assert exemption claims as they would claim them; and then the Court determines in a litigation process whether those exemptions are appropriately claimed.
And they have short-circuited that process by the Glomar claim of just refusing to confirm or deny anything and I think that that's inappropriate on the facts of this case to do so.
On the operational files issue, we also believe today the Government has made some concessions. One is that there was a Capitol Hill investigation of a topic in which Mr. Gaitan came up as a subject in the discussion of the investigation and we think that invokes the operational file issue, the 50 U.S. Code 431 C requiring the search also of operational files.
And Chief Judge Hogan just issued an opinion in another case I am handling, it was just issued last Friday in the Kelly case, Kelly versus CIA which is 2000 Civil 2498 and in that case he has ordered the search of operational files for the MKUltra project which was the drug experimentation project at the CIA and he did so on the basis that it had been the subject of prior investigations including Congressional investigations and that therefore they had to search and release to us releasable information from the operational files regarding the MKUltra program.
THE COURT Sometimes the term investigation, it is not the same as, say, a Grand Jury investigation. Congressional investigation is a bit of a catch all phrase that gets thrown around and used, Mr., Alcorn by even courts sometimes to refer to a myriad of inquiries that Congress has engaged in and the Committee as I recall the transcript that the Admiral appeared before was not anything in any way, shape or form like the Committees that exist today.
And my sense is that the quote "investigation" close quote that was going on then was a very different type of investigation to the extent it was really a truly an investigation than what you would traditionally expect to see of the CIA from either of the two, the House or the Senate Intelligence Committees as they exist and have existed now for something in the area of 20 years, 25 years, something like that.
So, you know, there is a terminology issue here with regard to whether or not the Admiral was really in the middle of a true investigation or investigation was intended as is referred to in these opinions and the statutes.
MR. ALCORN And I use the term the Chairman of the Committee, of that Congressional Committee used in introducing the proceedings, that we are here to have an investigation of what the CIA did; and that's the term of the Congressional Committee Chairman.
He also reflects that that Committee is the Committee of Congress that created the CIA in 1947. And so the Congress in their wisdom had organized themselves in such a way that that was the responsible Congressional Committee.
I also point out that the 50 U.S. Code 431 C does not use the proper names of the current Intelligence Committees of House and Senate which they could have done. They were being created at the time it was passed in 1984. The statute uses lower case generic term of intelligence committees of Congress and the Congress could have used the official names or more directly linked it to the ones that were created later, but the generic term was used and I think you have to give plain meaning to that generic term. And I think from the record in this case it is quite clear that the Congress had given jurisdiction over the CIA to this Congressional Committee and that's why they held this hearing and they called it an investigation and I know a lot of procedures were different then in the CIA, Executive Branch, Congress, whatever; but that's the passage of time. Things are different. It doesn't take away the plain meaning of what they say they were doing.
The other point I would like to make to your Honor is from the argument today is that the CIA has mentioned that if this request were about events, the event of the Bogotazo, then they would release information and that statement was made here at the podium.
And I have a lot of difficulty on these facts of upholding the Glomar claim they made when they make that statement that they are willing to release information about this subject matter and topic.
They are asserting the unassertable which is that no one has ever officially confirmed for the CIA that they have any files concerning Mr. Gaitan and I take that as that in fact if they are willing to release information about the events we are talking about, the bogotazo, the Pan American Conference, the issues that have come up that concern Mr. Gaitan, that on these facts with the kinds of admissions and releases that were made previously, I don't see why the Court should sustain a Glomar but rather should take them up on their asserted willingness to release information about certain events and topics.
I just don't see why they are seeking to shut down the case and not go through their search and release of information when they state they are willing to do that for these events. They are stuck very hard on the Glomar in a factual situation which I think is unsustainable on the law of the Circuit because in this situation unlike any that we have seen, they actually read from their own records into the record that contained information about Mr. Gaitan.
And so I think it is an important concession and one for the Court to take up that there is a willingness on their part to search and review and release information about these topics and about this period of time.
There is clearly no, presumably no national security problem in relation to that, if they are willing to release information about these events in 1948; and I think that that's something that your Honor should keep very much in mind as we go forward.
THE COURT All right. I will give Miss Hartell a couple minutes. I have another appointment that I have to go to but thank you, Mr. Alcorn. I will just give you the last word, so to speak.
MS. HARTELL Very quickly, your Honor, first of all, I didn't say that the Agency would release documents on the event. I said that we would process the FOIA Request and that's important.
I don't know whether or not and I don't know what kind of records the CIA has. We process FOIA requests on events. We don't process FOIA requests on specific individuals to protect people, to protect their lives, to protect people who risk their lives for the Agency.
If this Court is to decide otherwise, we would lose a significant protection of our sources and methods and I think it would be an extension of FOIA law like I have never seen before in this District.
In reference to Plaintiff's assertion that their memorandum of statements and material facts and that we didn't refute that, your Honor, he is referring to I think it is number eight in that memorandum in which he claims that the testimony is an admission.
Your Honor, that's a legal conclusion that only this Court can decide and, moreover, the CIA addressed that in its next pleading with the Court. It addressed the fact of Hillenkoetter's testimony and how we characterized it. So it wasn't a fact. It was a legal conclusion.
THE COURT Okay. What about this notion of since he read from reports, releasing the reports but with redactions, that's what Mr. Alcorn would obviously like to see here at a minimum, the reports but with redactions as to those portions that are in the judgment of the Agency protectable under these subsections of national security?
MS. HARTELL Your Honor, it is the way that the Plaintiff couched his FOIA Request. The Agency wants to be able to protect its people and, if the Plaintiff changes his FOIA Request to the event of the assassination of Gaitan, he can list any number of things that don't describe all records on this individual person.
The Agency in protecting its people wants to be able to neither confirm nor deny and eliminate worldwide speculation as to why does the CIA have records on Gaitan? Was he an asset? Did they collect information on all political candidates? Are they collecting political candidates right now in my country?
Aside from something that would have a much less severe effect of the CIA collected intelligence on the event of the assassination or on the political uprising. That's a very important distinction and it is a protection that the Agency clings to tightly in order to protect the way that it does business.
THE COURT All right. Anything else?
MS. HARTELL No, your Honor.
THE COURT Okay. Fine. Ms. Sullivan.
MS. SULLIVAN Your Honor, it will take about two seconds.
THE COURT That's about all you are going to get.
MS. SULLIVAN I made a mistake in citing Campbell. It was the last case. I made a mistake. My opposing counsel was correct. The Judicial Watch case that I referred to was the Gonzales matter and if there wasn't a public interest in how the Government was handling the Gonzales matter, I don't know what it was.
It certainly was current. And also one item is it is not just that there just might be a specific interest in this topic by the Plaintiff, Mr. Wolf, as a would be researcher which is scantily documented in the file.
It must have a much broader public interest than just that and I think I mixed up Blakey B L A K E Y which was cited in my brief. I just transposed the two cases and the facts.
THE COURT All right. Well, thank you for the clarification. The Court will take the issues under advisement, the Motions under advisement and appreciates the quality of advocacy on both sides.
I am sure it will be helpful to the Court in reaching a decision and the Court wishes to wish the Plaintiff all the best in law school. It is quite a challenge I might add. We will stand adjourned.
(Whereupon, the proceedings were concluded at 415 p.m.)