UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF
WOLF'S CROSS-MOTION FOR SUMMARY JUDGMENTThe Plaintiff, Paul Wolf, hereby presents this his reply memorandum in support of his cross-motion for summary judgment against CIA in this case.
ARGUMENT
1. CIA concedes plaintiff's statement of material facts as to which there is no genuine dispute, and therefore the court must enter summary judgment for the plaintiff.In conformance with Local Civil Rule 7.1(h), plaintiff filed his Statement of Material Facts as to Which There is no Genuine Dispute with his cross-motion for summary judgment. CIA's opposition contains no responsive statement of issues remaining genuinely in dispute, and pursuant to Rule 7.1(h) the Court should deem that the facts identified by plaintiff in his statement of material facts are admitted.
The facts thus conceded are as follows:
a. On April 15, 1948 the Director of the CIA, Admiral R.K. Hillenkoetter made authorized public disclosure of the fact that the CIA had records concerning Jorge Eliecer Gaitan, and revealed details of such information and even read verbatim from some such reports to reporters and Congressmen.
b. CIA Director Admiral R.K Hillenkoetter on April 15, 1948 made authorized release to the press and public of information from CIA files concerning Jorge Eliecer Gaitan, and this release of information resulted in extensive front page news articles in major newspapers throughout the United States. These news articles in part described information from CIA files concerning Gaitan released the day before by CIA Director Hillenkoetter.
c. The CIA has made authorized public release through the CIA's Historical Review Program of a CIA Studies in Intelligence study entitled, "The Bogotazo", by Jack Davis. This study details information from CIA files concerning Gaitan, the subject of plaintiff's FOIA request.
d. The CIA's Historical Review Program makes authorized release of CIA records of historical interest, and releases documents from the CIA's operational files as well as other CIA files.
Thus, the CIA has previously publicly released extensive and detailed information responsive to Plaintiff's FOIA request, and therefore such previously released information cannot be withheld in response to Plaintiff's request under FOIA exemptions b(1) or b(3). Rather, as the CIA concedes at page 3, paragraph 5 of the Kathryn I. Dyer Declaration it relies on, Plaintiff is entitled to records containing previously publicly released information.
The Court of Appeals for this circuit has held repeatedly that official and documented public disclosure of information means that release of the information may be compelled pursuant to FOIA even over an agency's b(1) and b(3) exemption claims. Fitzgibbon v. C.I.A., 911 F.2d 755,765 (D.C.Cir. 1990), citing Afshar v. Department of State, 702 F.2d 1125,1133 (D.C.Cir. 1983). Such a disclosure is deemed official when made by the agency from which the records are being sought. Frugone v. C.I.A., 169 F.3d 772,774 (D.C. Cir. 1999).
The CIA's argument that it can neither confirm nor deny that it has records responsive to plaintiff's request is simply wrong factually, since CIA Director Hillenkoetter did that explicitly in 1948. The CIA records which Hillenkoetter read into the public record concern GAITAN and are therefore responsive to plaintiff's request, and their existence has been officially acknowledged by the Director's actions. The CIA's argument in substance is that it will not confirm or deny what its own director stated explicitly to Congress in public session, and this is not permissible. Further, Section 1.8(c) of applicable classification Executive Order 12958 states, "Information may not be reclassified after it has been declassified and released to the public under proper authority".
This Court has recently addressed a situation of prior release stating, "(t)o hold that the CIA has the authority to deny information that it has already admitted would violate the core principle of FOIA without providing any conceivable national security benefit". National Security Archive v. CIA, Civ. Act. No. 99-1160, Memorandum Opinion, July 31, 2000, copy attached hereto as Exhibit 1, p. 17. In that case this Court granted summary judgment to the plaintiff for release of information previously released by the CIA but withheld in that case, the same circumstance as here.
CIA's argument in its opposition is directed to the scope of the information officially acknowledged, but CIA ignores that its position in this litigation is that it still refuses to confirm or deny that it has responsive records, a fact that clearly has been officially acknowledged previously. CIA cannot prevail on such an argument, rather the court must override CIA's refusal to confirm or deny the existence of records and order CIA to release the requested information to plaintiff.
2. CIA operational files should be released to plaintiff.
As pointed out in argument 1(d) above, the CIA has conceded in this case that the Historical Review Program includes release of information from CIA's operational files. This admission is further supported by Exhibit 4 to plaintiff's opening brief which is a description of the Historical Review Program and CIA declassification efforts, explicitly including declassification of operational files for covert actions.
And in yet another conceded authorized release of responsive information, the CIA through its 1994 CIA Historical Review Program released a thirteen page study from the CIA's Studies in Intelligence series entitled "The Bogotazo" by Jack Davis. Exhibit 3 to plaintiff's opening brief. CIA does not deny that this scholarly CIA study is replete with detailed facts and analysis about JORGE ELIECER GAITAN, subject of plaintiff's FOIA request.
CIA asserts that the markings on Studies in Intelligence publications support its position, but in fact they contradict CIA's argument. CIA calls attention to only one of four markings on the page it presents as Exhibit 1 to its brief, this marking stating that "all opinions" contained in the studies are those of the authors and do not necessarily represent the official views of the CIA or other component of the intelligence community. CIA ignores the plain meaning of this statement, which is that it only applies to the opinions expressed in the study. The statement in no way addresses the numerous facts contained in the studies, rather the other three markings on Exhibit 1 state in very stark terms (a) that the materials in the Studies are in general to be reserved to U.S. personnel holding appropriate clearances (b) that "(t)his material contains information affecting the National Defense of the United States within the meaning of the espionage laws Title 18, USC, Secs. 793 and 794. The transmission or revelation of which to an unauthorized person is prohibited by law"; and (c) that the material is excluded from automatic downgrading and declassification.
Thus the factual information contained in the Studies is declared to be highly protected official information by the very warnings cited selectively by the CIA. The purpose of the disclaimer about opinions in the Studies is to disclaim opinions as necessarily being official, but maintaining official status and protection for the factual material and the work as a whole.
The opinion/fact distinction is well recognized in the law of Freedom of Information, as it relates to the b(5) deliberative process exemption. The U.S. Supreme Court has described the opinion/fact distinction, holding that factual material must be segregated from opinion material and released in an FOIA case. EPA v. Mink, 410 U.S. 73,89 (1973).
Support for release of the information requested by plaintiff is found in the Declaration of Lloyd D. Salvetti presented by the CIA. He states that articles are declassified when the content no longer meets the standard for classification. Paragraph 11. This article was declassified in 1997 in its entirety by its markings, after having been approved for the historical review program of 1994. Thus the CIA's own evidence is that the content of the material no longer meets standards for classification all the while arguing to this court that it can neither confirm nor deny the existence of such material in part on grounds that it is properly classified under exemption b(1). Thus again the CIA's evidence contradicts its arguments to this court.
Here, CIA ignores the plain meaning of the warnings on Exhibit 1 and tries to treat the entire "Studies" document as unofficial when its markings are clearly contrary. Given the distinction between factual and opinion material recognized by the Supreme Court, and in light of the declassification of the article, CIA has made no argument to deny release of the factual material to plaintiff. Clearly there is much formerly officially protected factual material in the Studies article entitled "Bogotazo", which was officially released by CIA pursuant to the Historical Review Program. Plaintiff is entitled to records at CIA containing this material, including operational files.
Further CIA is wrong in asserting that the investigation conducted by the House Committee on Expenditures in the Executive Departments does not invoke FOIA review under 50 USC Sec. 431(c). The relevant wording of that statute is "intelligence committees of the Congress". As is clear from the testimony presented as Exhibit 1 to plaintiff's opening brief, in 1948 the special subcommittee of the Committee on Expenditures in the Executive Departments was the intelligence committee of the House of Representatives. In fact Representative Brown is quoted as follows, "I think that I should point out at this time that the Central Intelligence Agency was created through the enactment of the Unification Bill, Public Law No. 253, at the first session of the 80th Congress, or about ten months ago, and that the Committee on Expenditures in the Executive Departments handled that legislation." Exhibit 1, p. 2, plaintiff's opening brief.
The language of 50 USC Sec. 431(c), enacted in 1984, uses the term "intelligence committees" in lower case letters. It does not use the proper name of the relevant House of Representatives Committee, "Permanent Select Committee on Intelligence", created in the 1970's, prior to the adoption of 431(c). The language of the statute is not limiting to the Permanent Select Committee on Intelligence by its plain wording. Under CIA's interpretation of 431(c) there could be no application of its effect for investigations conducted by Congress prior to the creation of the permanent intelligence committees in the 1970's. This interpretation is inconsistent with the CIA's own declassification policy which is releasing information on covert actions in the 1950's and 1960's, including operational file materials. Exhibit 4 to plaintiff's opening brief.
Further CIA is incorrect in asserting that the investigation at issue is not covered by 431(c). Representative Brown set forth the purpose of the hearing of April 15, 1948, as follows, "(t)his subcommittee is authorized to launch an investigation of the Central Intelligence Agency and learn whether the Secretary of State and other high officials were promptly warned that a revolution was impending in Colombia, and that their attendance at the Bogota conference might endanger their lives and bring embarrassment to the United States." Exhibit I to plaintiff's opening brief, p. 1. CIA seems to perceive a difference between the "impropriety" language of the statute and the intelligence failure description provided by CIA in its brief. This argument fails since the definition of an impropriety is a "wrong" or "incorrect" act (oxford American Dictionary, Oxford University Press, 1980). In the words of Representative Brown, the investigation was to find whether the Secretary of State and other high officials "were promptly warned" of the impending revolution and danger attendant thereto. To follow through the semantics, if these officials were not promptly warned of the danger, this would have been a "wrong" or "incorrect" act, and thus an impropriety.
Further, plaintiff seeks disclosure in this case of these operational file records in light of the CIA's application of the Historical Review Program to the events surrounding the assassination of GAITAN. Section 431(a) states only that the CIA Director "may" exempt operational files from disclosure, not that he is required to do so. The CIA Director has exercised his authority to permit disclosure by authorizing the Historical Review Program which discloses operational records as well as other files of the CIA. See Exhibit 4 to plaintiff's opening brief for DCI statement on declassification as covering covert operational files. Significantly, the Historical Review Program was authorized by the CIA Director after the 1984 enactment of the 50 USC Section 431(a) statutory provision, and by its operation records about a historical event such as the Bogotazo are released, including operational files.
Finally, CIA does not deny that the Studies in Intelligence study entitled "Bogotazo" recounts in extensive detail the events surrounding GAITAN's assassination and the aftermath, including short and long term reaction within the CIA itself to an event that is stated to have had permanent effect on the conduct of U.S. intelligence activities. And CIA does not deny plaintiff's assertion that the article states that CIA Director Hillenkoetter "discussed strategy with President Truman" prior to his April 15, 1948 Congressional testimony, and that President Truman encouraged him to confront Congressional critics with the CIA record, indicating at what high levels the decision was made to release the information. Exhibit 3, p. 82, plaintiff's opening brief. The Court should order release of the requested information to plaintiff.
3. Defendant CIA has not shown that the requested information is subject to classification and properly classified pursuant to Executive Order 12958.
CIA does not deny that where CIA has already publicly officially released the information requested by plaintiff CIA cannot claim the b(1) exemption for such information. CIA does not deny that Section 1.8(c) of applicable classification Executive Order 12958 states, "Information may not be reclassified after it has been declassified and released to the public under proper authority". Therefore, CIA cannot demonstrate proper classification for the previously released information, and plaintiff is entitled to records containing the information.
As previously noted, support for release of the information is found in the Declaration of Lloyd D. Salvetti presented by the CIA. He states that articles in Studies in Intelligence are declassified when the content no longer meets the standard for classification. Paragraph 11. The "Bogotazo" article was declassified in 1997 in its entirety by its markings, after having been approved for the historical review program of 1994. Thus the CIA's own evidence is that the content of material related to GAITAN or his assassination no longer meet standards for classification, all the while arguing to this court that it can neither confirm or deny the existence of such material because it is properly classified under exemption b(1). Again the CIA's evidence contradicts its arguments to this court.
CIA does not deny that in this case the information at issue is over fifty years old. Section 3.4 of EO 12958 mandates that records more than 25 years old shall be automatically declassified whether or not the records have been reviewed. Further, that section mandates automatic declassification for records that have been determined to have permanent historical value regardless of their age. The records at issue in this case qualify for automatic declassification under both of these standards. The effective date for automatic declassification is October of this year, thus CIA's assertion of the b(1) exemption may expire during the pendency of this case or any appeal by operation of the very executive order it cites.
Nor does the CIA deny that it has failed to conduct the public interest balancing test set forth in Section 3.2(b) of EO 12958, which in appropriate cases requires otherwise classified information to be released where the public interest outweighs the need to protect the information. CIA does not deny that in this case the requested information reflects actions of the U.S. government in formative events in the modern history of Colombia, or that U.S. taxpayers are today funding a multi-billion dollar aid program to Colombia. CIA does not deny plaintiff's assertion that the requested information would inform the public of the effectiveness of U.S. government past actions in relation to Colombia. CIA appears to concede that given that the events surrounding GAITAN's assassination were formative to modern Colombian political life, information about the U.S. government's involvement or non-involvement in events surrounding the Bogotazo informs the U.S. public as to the likelihood of success of the current aid program, and thus informs the public's political choices.
As argued by plaintiff in his opening brief, it is in the interest of the U. S. public to release the documents proving the U.S. government's version of events surrounding the assassination of GAITAN. U.S. taxpayers are entitled to know what our government has done in the past in Colombia so that U.S. voters can judge whether the current aid program is appropriate and entitled to their political support. CIA does not deny that the oversight committee of the Senate known as the Church Committee investigated CIA assassination plots against foreign leaders in the 1970's, and the CIA released relevant information pursuant to this investigation. Again 50 USC Section 431(c)(3) would require that such information be produced under plaintiff's FOIA request, and he seeks release of any such information. Plaintiff emphasizes that the public interest is in seeing that the U.S. public has access to the historical record of our actions in Colombia when U.S. taxpayers are asked to pay for a multi-billion dollar aid program.
Also, in light of the admitted disclosures of relevant information, CIA has entirely failed to show that it has complied with the requirement of FOIA that "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 USC Section 552(b).
In this case CIA's motion for summary judgment cannot be granted, and plaintiff's should be granted because the CIA has failed to show both that the requested information can be classified, and that it is properly classified pursuant to executive order.
CONCLUSION Plaintiff has demonstrated, and the CIA has admitted that CIA has made authorized release of information responsive to his FOIA request. Plaintiff is entitled to release of records responsive to his request containing such information, and the CIA's assertion of the FOIA b(1) and b(3) exemptions fails. See Fitzgibbon v. C.I.A., 911 F.2d 755,765 (D.C.Cir. 1990), citing Afshar v. Department of State, 702 F.2d 1125,1133 (D.C.Cir. 1983).
The CIA has further failed to demonstrate that the requested information is material subject to classification under EO 12958, and CIA has not shown that it is properly classified under that executive order.
For these reasons Plaintiff prays that the court grant Plaintiff's motion for summary judgment, and that the Court order the defendant CIA to release to plaintiff the information in its possession responsive to plaintiff's FOIA request, including operational files.
Respectfully submitted,
DANIEL S. Alcorn
Counsel for Plaintiff
D.C. Bar No. 383267
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