Larry Berman's Suit to Obtain Select PDB's from the CIA

Roundup: Talking About History

Mike McKee, in the Recorder (3-9-05):

As a renowned expert on the Vietnam conflict, Larry Berman knows volumes about opposition to U.S. government policies.

Now, he's leading a fight of his own.

For more than a year, the UC Davis professor has been seeking access to president's daily briefs, or PDBs, for three scattered days during Lyndon B. Johnson's administration.

Berman says the documents would shed light on the Tet offensive and other lingering mysteries of the Johnson administration. But the feds claim the documents contain sensitive material essential to national security, and they've refused to release them.

Refusing to take no for an answer, Berman has filed suit against the Central Intelligence Agency, the guardian of all PDBs, to get the documents he wants and to try to change the agency's blanket policy of refusing to declassify the daily briefs of any presidential administration.

"I don't want to sound corny, but I really do believe that the release of these documents is a legitimate part of historical inquiry," Berman said. "Litigation in this case is the only course left open to me."

The 53-year-old political science professor filed suit in Sacramento federal court in December, and his attorneys in the San Francisco office of Davis Wright Tremaine say they're working out a briefing schedule with the CIA. They hope the case will be heard in court by early May.

"We think the CIA's policy of blanket closure needs to be challenged,"
said partner Duffy Carolan. "There is so much information that can provide perspective for the public's broader understanding of history."

"You can't help but repeat history," partner Thomas Burke added, "if you don't know what your history was in the first place." ...

Presidential briefings began in 1961 as the "president's intelligence checklist," said Meredith Fuchs, general counsel for the National Security Archive, a Washington, D.C.-based public interest law firm and research agency dedicated to enforcing the Freedom of Information Act. The checklists, renamed the president's daily briefs three years later, essentially recount world activities culled through intelligence or news sources from around the globe.

"It's the one thing you can point to and say, 'The president probably read this document,'" said Fuchs, whose group is serving as co-counsel for Berman.

Berman's lawyers say they're not trying to argue that the CIA shouldn't be allowed to conceal some documents or even redact information if necessary.

"We're asking for the government to look at it on a case-by-case basis, rather than denying access across the board," Carolan said. "There may be cases where security needs to be maintained due to national security, but when you are talking about PDBs that are over 30 years old, we doubt that's the case."

Even the State Department's Historical Advisory Committee on Diplomatic Documentation has criticized the CIA policy, most recently in a 2002 report about being denied access to PDBs from the administration of former President Richard Nixon....

Berman, who is in his sixth year as director of the UC Washington Center
-- which provides students and faculty an opportunity to work and live in D.C. -- first contacted the CIA by letter on March 3 of last year. He requested PDBs from four dates -- Aug. 6 and 8, 1965, and March 31 and April 2, 1968. (He subsequently dropped the Aug. 8 request.)

In a letter dated April 15, Alan Tate, the acting coordinator for information and privacy, denied access, stating that the documents contained "inherently privileged, pre-decisional and deliberative material for the president." A later administrative appeal by Berman was also rebuked.

In filing suit, Berman admits, he's eager to "shatter the myth" that concealment of all PDBs is essential to national security.

As part of his case, Berman provided the court with eight redacted PDBs from the Johnson administration that had been released by the Lyndon Baines Johnson Presidential Library and Museum in Austin, Texas. Five were from June 5-9, 1967, at the height of the Six Days War between Israel and several Arab states.

The intelligence in the documents isn't shocking, but provides an interesting look at what the president was being told at a crucial time in history. Not only was the Mideast war taking place, but both the Vietnam conflict and the Cold War were in full rage.

"The Soviets are finding it hard to conceal their shock over the rapid Egyptian military collapse," one brief states, with one Russian military man allegedly wondering how they could have gotten themselves into "such a mess."

Another says the Vietnamese are trying to create the illusion of "a war no one can win," while yet another makes the almost comical report that the U.S. embassy in Cairo "was not set on fire as reported in this morning's Washington Post."

While such statements might not seem important on their own, to scholars they could shed light on other decisions.

"It may not be innocuous to someone who's in the know," said Burke....

The case is Berman v. Central Intelligence Agency, S-0402699.

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