What we do is secret
For UC Davis prof Larry Berman, taking the Central Intelligence Agency to court is a no-brainer
Suing the CIA was the last thing on Larry Berman’s mind when he first ventured into the world of academia. “Look, no one wants to sue your own government or, in this case, the CIA,” said the 54-year-old UC Davis professor, whose case against the agency goes to U.S. District Court here in Sacramento on June 1.
As a respected Vietnam War scholar—his book, Lyndon Johnson’s War: The Road to Stalemate in Vietnam is a seminal text on presidential deliberations at the height of a war—Berman exhausted all other avenues to accessing President’s Daily Briefs (PDBs) from the era. “When my last Freedom of Information Act request was denied, I was informed that the only action I had left was to seek judicial remedy, and that’s what I’m doing,” explained Berman. “Why the CIA is holding on to this is beyond me.”
It’s also beyond Bill Moyers, the famed journalist who earlier this month filed a supporting declaration on Berman’s behalf. In the declaration, Moyers explains how, as special assistant to President Johnson from 1963 until 1967, he had the frequent opportunity to review PDBs from the era and sees “no reasons why information that was sensitive at the time should not [be] reviewed and considered for public release today.”
CIA public-affairs officer Tom Crispell told SN&R it’s against policy to comment on pending litigation, but a 40-page declaration by CIA officer Terry Buroker lays out the agency’s concerns. Referring to PDBs as “the most highly selective compendium of the most important intelligence available to the U.S. Intelligence community,” Buroker argues that “the disclosure of the specific information in any individual edition of the PDB reasonably could be expected to result in exceptionally grave damage to national security.”
Berman, however, argues that a number of PDBs already have been released, with no recognizable effect on national security. His declaration cites a series of 10 historical PDBs from the Johnson era that were officially (and, from the CIA’s point of view, “improperly”) declassified. A review of these documents suggests that—apart from the occasional black Magic Marker redacting of names and other specifics—their contents are surely of more use to historians than official enemies of the state.
One PDB, for instance, offers an update on the Indonesian head of state’s health: “Despite Sukarno’s long-standing kidney ailment, for which he delays proper treatment, he has seemed quite chipper lately.” There is little here to support former White House spokesman Ari Fleisher’s description of the PDB as “the most highly sensitized classified document in the government.”
Although the President’s Daily Brief has been around since the Kennedy era, it first found its way onto front pages with the release of the notorious “Bin Ladin Determined to Strike in US” briefing. Written prior to 9/11 and released to the public in April of last year, the warning was dismissed by then-National Security Advisor Condoleezza Rice as a “mostly historical” document, albeit one the administration fought to withhold from historians, press and public at large.
“It’s hard to believe that that’s the crown jewel of intelligence,” commented Berman, when asked about Vice President Dick Cheney’s reference to PDBs as “the family jewels” in a Fox News appearance. “Many members of the 9/11 Commission were astounded that, after a two-year battle to get this document, that this is what they saw,” said Berman. “It was hardly worth the fight. And it’s really very difficult to believe—if this is the mostly highly sensitized classified document in government, they’re watching CNN too much.”
Thomas Blanton, president of the National Security Archive (NSA), argues that President George W. Bush’s own administration recently identified the PDB as an inherently flawed document. Indeed, the Robb-Silberman commission on weapons of mass destruction, which was appointed a year ago by the president to look into intelligence flaws, makes the case in its findings, presented to Bush on March 31.
“They not only reviewed all the PDBs that had Iraq information in them before the Iraq war, but they also talked to the authors of the PDBs who actually wrote those items,” said Blanton, whose organization boasts the world’s largest nongovernmental library of declassified documents. “And they concluded that the President’s Daily Briefs to Bush distorted the actual intelligence the community had on Iraq and weapons of mass destruction; because the premium was on short snappy articles with grabby headlines to keep the reader’s attention, the briefs actually overstated the threat.”
Indeed, the report’s cover page lists four bullet-point recommendations. Under the heading “Rethink the President’s Daily Brief,” it states simply: “The daily intelligence briefings given to you before the Iraq war were flawed. Through attention-grabbing headlines and repetition of questionable data, these briefings overstated the case that Iraq was rebuilding its WMD programs.”
“Policymakers are sometimes surprised to find that longer, in-depth intelligence reporting provides a different view from that conveyed by the PDB,” explains one senior intelligence officer cited in the report, which decries the resulting “drumbeat of incremental ‘hot news’ articles.”
Concludes the commission: “The PDB staff tends to focus on today’s hot national security issues, or on issues that attracted the President’s interest the last time they came.”
Blanton, who frequently helps academics like Berman in their quest for historical information, paused when asked to speculate on how this might affect a president who brags about getting all the information he needs from advisers.
“That’s what Robb and Silberman concluded,” he demurred. “What I do for a living is quote documents. And this one is about as good as it comes.”
In a post-Valerie Plame landscape, critics may be more inclined to attribute the Bush administration’s preoccupation with secrecy to fears of personal political embarrassment rather than concerns with national-security matters. Indeed, Berman’s struggle to access vintage PDBs has become an uphill battle in an era when the Patriot Act appears to be eclipsing what remains of the Freedom of Information Act.
Interestingly, one of the CIA’s main arguments in defense of withholding PDBs is the claim of executive privilege; the documents, they contend, are part of the presidential decision-making process.
Clearly, that is very much the case these days. But how does it apply when the documents Berman is seeking are 30 years old?
“In certain ways,” said Blanton, “maybe what’s most amazing is that here you have the CIA claiming presidential privilege over LBJ—wow!”
After devoting much of his life to illuminating the political landscape of the era, Berman is equally amazed, if less amused, by the maneuver. “They cannot make the issue one of presidential privilege, because only a president can make that,” said Berman. “In the Supreme Court decision, Nixon v. Administrator [of General Services], it was determined that the claim of privilege disappears with time. And so, I wonder who’s making the claim of any sort of privilege for Johnson. Who’s claiming on Johnson’s behalf that these PDBs shouldn’t be seen? The federal agency is the CIA.”
Moyers argues in his declaration that PDBs contain “much the same type of information” that’s contained in Central Intelligence Bulletins, many of which have been released already. Berman recruited Moyers on behalf of his case after years of acquaintance, including an onstage discussion at UC Davis and Berman’s appearance in Moyers’ PBS documentary The Truth About Lies. Moyers was also a key source in Berman’s book research.
“He was very helpful to me as a source on the Johnson presidency,” said Berman. “He always gave me interviews and was just exceedingly helpful. That’s just Moyers.”
Whether or not Moyers will end up being called on his offer to testify, the former Johnson aide clearly stands by Berman’s assertions that the PDBs are no more dangerous than numerous other declassified materials of the era. At the same time, Berman and his supporters argue, they have too much historical value to be tossed down the memory hole.
“I do believe these PDBs will add to our historical understanding of the Vietnam War and the information that President Johnson had at his disposal before he took some very momentous decisions, particularly having to do with the period before Tet. So, I’m very interested in that period. And we are not asking to see these without redaction. It’s hard to believe that 30 years later, national security is still at risk there.”
But even seemingly innocuous documents can be a threat, suggests the CIA’s Buroker, thanks to what he describes as the “mosaic theory.”
“This process is a theory in name only,” contends the CIA officer, warning about how enemies of the United States can go about “collecting seemingly disparate pieces of information and assembling them into a coherent picture” of a target’s activities and intentions.
Buroker further argues that U.S. intelligence uses this same mosaic theory in its own investigations, though he makes no mention of upper-level officials’ apparent inability to connect the dots between “historical” documents declaring “Bin Ladin determined to strike in U.S.” and intelligence about future terrorists attending flight schools.
“They’re arguing this mosaic theory, which means that somehow, by perusing one document, some foreign agent—some foreign country, some enemy of the United States—could take what’s released from one document, what’s released from another, and put this thing together and somehow figure out the thread of intelligence,” said Berman of the embattled Johnson PDBs. “And I just don’t think it works here.
“I think the easiest thing to do, of course, would be for the CIA to recognize that on this issue of 30-year-old PDBs there is no national-security interest, and they should be released to historians and scholars of war for the same reason that so much other material has.”
The possibility of the CIA backing down doesn’t look likely. Berman will be back in town for the June 1 hearing—he’s spent the last few years directing the University of California Washington Center, which brings 280 UC students from across the state for an “experiential learning program” in the nation’s capital—and returns to Davis full time as a faculty member come July 1. As much as he’s loved the work in D.C., he looks forward to returning to the campus where he’s taught since 1977.
At the same time, Berman will continue his research on Vietnam, an involvement that’s become less historical and more personal in recent years. “I’ve been there seven or eight times over the last year or two,” said Berman, who is undertaking humanitarian and educational projects there. He is particularly interested, he said, in the process of normalization that began 10 years ago with the two nations “working together on a whole range of issues.” For Berman, it’s a stark change from the history of “former adversaries who fought a horrible war of death and destruction, in which the United States failed to achieve its objectives and Vietnam itself suffered tremendously and still does.
“I have an extraordinary relationship with Vietnamese across borders, and that is the thing I think I’m most proud of,” continued Berman. “I’m a friend of the Vietnamese in the Socialist Republic of Vietnam today, and I’m also a friend of the Vietnamese communities in California and Virginia, and whose children are now my students.”