Judge Shoots Down 'FOIA Terrorist' Jason Leopold; Says 'Panetta Review' Documents Can Be Withheld In Full

from the whatever-the-CIA-said-about-torturing-folks-is-between-the-CIA-and-the-CIA dept

DC District Court judge James E. Boasberg has ruled the CIA can continue to withhold the “Panetta Review” documents in full, thanks to widely-abused FOIA exemption b(5). (via Unredacted)

District Court Judge James Boasberg ruled against a journalist on Tuesday who had tried to uncover the classified documents — known as the Panetta Review, because they was completed under orders from former agency Director Leon Panetta — under the Freedom of Information Act (FOIA).

The CIA had used “sound” reasoning in keeping the documents secret, Boasberg decided in a 19-page judgment, preventing it from making its way to the public.

The journalist in question is every secretive agency’s side-thorn, Jason Leopold, who sued the CIA one day after it passed the response deadline. And now this attempt to pry more torture-related documents out of the CIA’s hands has hit a dead end. Judge Boasberg agreed that the overbroad exemptions cited are (unsurprisingly) broad enough to cover the CIA’s assertion that the 40 memos comprising the Panetta Review must be withheld in full.

In the end, requiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent – i.e., inhibiting frank and open communications among agency personnel… Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials. Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption…

The Court, in sum, concludes that the Reviews are properly withheld under Exemption 5’s deliberative-process privilege. It further agrees that they may be withheld in full. While FOIA requires agencies to release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), it is clear that there are no such portions here. As the agency attests, and as the preceding discussion makes clear, “[t]he entire documents are pre-decisional, deliberative drafts . . . .” Lutz Decl., ¶ 26. Because “the selection of which facts to include [wa]s part and parcel of the deliberative assessment,” no portions can be severed without exposing the deliberative process itself.

Two interesting things to note about the Panetta Review and this particular case.

First, the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as “draft” or “deliberative,” no matter what their actual purpose is. In its supporting declaration filed in this lawsuit, it deployed circular reasoning declaring drafts and deliberative documents are drafts and deliberative documents because they are clearly marked as such by the CIA.

In a court filing last month as part of a Freedom of Information Act lawsuit, a C.I.A. officer said that the review had been stopped abruptly in 2010, had not covered all of the documents the agency had given to the committee and “had not been formally reviewed or relied upon by the C.I.A.’s senior leadership.”

“Each document is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” wrote the C.I.A. officer, Martha M. Lutz.

The CIA’s internal document designations seem to bear some resemblance to the NYPD’s use of its “SECRET” stamp — which is deployed arbitrarily and without oversight to declare certain documents out of the reach of Freedom of Information Law (FOIL) requests. If the CIA feels exemption b(5) gives it the best chance to keep documents out of the hands of journalists like Jason Leopold. it can slap these designations on as many papers as possible and mention its predetermination in FOIA lawsuit declarations.

Second, Boasberg’s refusal to challenge even a single exemption assertion by the CIA isn’t particularly good news, considering his recent appointment to the FISA court. While he has pushed back on government secrecy in the past, he’s also been just as likely to grant its wishes. Considering he’s replacing FISA Judge Reggie Walton — one of the few FISA judges to openly question surveillance tactics and hold the NSA accountable for its abuses — this latest decision seems to indicate his appointment is a downgrade in terms of government accountability.

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Comments on “Judge Shoots Down 'FOIA Terrorist' Jason Leopold; Says 'Panetta Review' Documents Can Be Withheld In Full”

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13 Comments
Anonymous Coward says:

Abuse of this type tends to backfire...

“the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as “draft” or “deliberative,” no matter what their actual purpose is.”

This is a perfect example of abusing a loophole…

The problem with this strategy is that when it’s obvious that it’s being abused, laws tend to get altered to close the loophole.

At that point, their obviously abuse will probably backfire and they may be forced to release FAR MORE documents than they would have if they’d just done the right thing in the first place.

It’s idiotic to pretend that labeling something incorrectly in order to avoid FOIA will somehow protect them forever.

Anonymous Coward says:

Re: Abuse of this type tends to backfire...

Ah… but labeling something incorrectly doesn’t need to protect them forever… just long enough for the people doing the labeling to retire from the agency and possibly die of old age. The idea is to ensure that if things ARE released, it’s to an apathetic public who no longer cares about the issues because they’re such old news.

Basically, the idea is to put a generatio of CIA in between the misdeeds and the active members, so that those currently in power can have clean hands on the issue and carry on as normal without anyone getting punished.

Cassandra (user link) says:

JL is a great reporter. Here's a couple podcasts..

Can always count on some ghastly realities, visiting TD. I’d like to point out, for folk who enjoy some quality podcasting, that these two outstanding podcasters have been interviewing Leopold on a regular basis, longtime:

http://pipes.yahoo.com/pipes/pipe.run?_id=0414a6db300f5981a341a17df411132a&_render=rss
(via peterbcollins.com )

http://scotthorton.org/feed/show/

Very much worth a listen.

Perusing the wikipoedia page for him, one is impressed with his resume. (But yikes, nobody’s written a page about dissidentvoice.org yet!) I remember him as a writer at truthout.org since forever– now apparently their Lead Investigative Reporter. TD seems to not link to his own site.. maybe because when I try jasonleopold.com I simply get:
“Error. Page cannot be displayed. Please contact your service provider for more details. (1)”
But maybe that’s due to my use of tor?

Anonymous Coward says:

This type of action has another effect besides closing loopholes. It is already known the report exists. It has been ordered by a previous court to release the documents. The CIA has shown it’s true colors by doing all it can to prevent those documents from ever seeing the light of day. This prevents the US from ever healing over it and it sure does not help the CIA with it’s claims of releasing them would cause an increase in terrorism. The documents are already known to be there, the outcome of the documents is already known. The only thing the CIA is actually achieving is the specifics that would in turn hold those accountable.

That alone is enough fodder for terrorists if you want to consider this terrorist food. You don’t need to have anything else exposed, that’s enough right there when you add to it that the CIA doesn’t want to tell the whole truth.

Of course their real issue is that if names were named, the World Court would be wanting them on human rights violations and war crimes. When you do things like the Nazis did you can expect the same actions over them.

Anonymous Coward says:

Re: Re:

Who said they ever cared about the USA “healing”? Because I have news for you, they don’t. These people have helped cause at least as much terrorism as they have prevented, all in the name of some twisted chess game they feel is worth playing for patriotic reasons. You will never be able to convince them that such a game will quickly become too variable and dynamic for anyone to control, because they honestly feel it is only a matter of getting the “right person for the job”.

Anonymous Coward says:

Please stop calling FISC a "court"

It isn’t one. It says so right there in article 1. While the unholy trinity of cable news has swallowed this particular propagandist meme, to call FISC a court is to concede your rights, and my rights under article 1.

Feel free to call it psuedo-court, conspiracy, baronial appointment, etc. But don’t call it a court. In the U.S. a “court” is something that operates under the color of law, and the law does not adjudicate in secrecy in this country. Even congress does not have the authority to change that, except by constitutional convention.

I realize this was probably accidental. But when you repeat a fraudulent title, you validate the fraud.

Sincerely,
Supreme Master of the Universe and Great Lord of Cookies and Chocolate Chip Sundays

GEMont (profile) says:

Sadly, there are no surpises here.

Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials.

Translation – if they had known the public might find out, they would have lied and withheld embarrassing or incriminating information from the review – completely subverting the whole point of a review.

Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption.

This means literally, that the exemption was designed specifically to prevent the truth from reaching the public.

The only thing more outrageous than a law that protects a public-paid federal agency from embarrassing/incriminating itself by disclosing the truth of its actions to the public, is a judge who considers such legislation to be appropriate and necessary.

Boy, we’ve come a long way baby, but its all been down hill.

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