Black Holes in the Predecisional Universe: Agencies Gain a New Justification for Secrecy
Nate Jones, August 2014
The National Security Archive was disappointed, but not surprised, that in a two-to-one decision the DC Circuit Court of Appeals, in May 2014, agreed with the Central Intelligence Agency that a volume of its 30-year-old history of the 53-year-old Bay of Pigs Invasion could “confuse the public” and should thus be kept secret. To win this argument, the CIA successfully convinced Judges Brett Kavanaugh and Stephen Williams (Judge Judith Rodgers identified multiple contradictions in her strong dissent) that any document the agency deems “predecisional” can be withheld ad infinitum.
The claim that the entire universe of “predecisional” documents–including any claimed “draft”–should be withheld from the public is in line with the agency’s information withholding strategy. The agency has found that it is much easier to withhold entire universes of documents than argue the merits of classification to protect US national security on a case-by-case, document-by-document basis.
The CIA got its first taste of “universal withholding” when Congress passed the 1984 CIA Operational Files Exemption. Unlike other Freedom of Information Act exemptions, which can be applied after agencies search and locate requested documents, the Operational Files Exemption creates a universe of documents that the CIA does not even have to search for. This means that if a historian requests records for, say, Operation Phoenix, the CIA-led assassination program conducted during the Vietnam War, the CIA will reply–less than completely forthcomingly–that its search has returned no results. Admiral William McRaven, the Joint Special Operations Commander who oversaw the Osama bin Laden raid, knew about this transparency black hole: he ordered the FOIA-complying Department of Defense to purge its computers of all files on the Navy SEALs raid on bin Laden and send them to the CIA, where the Operational Files Exemption would keep them “safe” from search and review for release.