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From: Paul Wolf
Subject: Oral Arguments in Gaitan FOIA Case
Date: Fri, 23 Aug 2002 19:08:56 -0400
Organization: Posted via Supernews, http://www.supernews.com
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
. . . . . . . . . . . . . .
vs. DOCKET NO. CV01-729
CENTRAL INTELLIGENCE AGENCY, ET AL.
August 14, 2002
. . . . . . . . . . . . ..
TRANSCRIPT OF MOTION HEARING
BEFORE THE HONORABLE RICHARD J. LEON
UNITED STATES DISTRICT JUDGE
For the Plaintiff: Daniel Alcorn, Esq.
For the Defendant: Diane Sullivan, Esq.
Stephanie C. Hartell, Esq.
Office of General Counsel
Central Intelligence Agency
Washington, D.C. 20505
Court Reporter: Patty Artrip Gels, RMR
US District Court
333 Constitution Avenue, NW
Washington, D.C. 20001
Proceedings reported by machine shorthand, transcript produced
by computer-aided transcription.
P R 0 C E E D I N G S
COURTROOM DEPUTY: The matter of Paul Wolf versus Central
Intelligence Agency, et al. Civil Action 01-729. Daniel
Alcorn for the Plaintiff and Diane Sullivan and Stephanie
Hartell for the Defendants.
THE COURT: Good afternoon, everyone. I think we are here to hear
the arguments on the cross motions for Summary Judgment. Since
we have both pending, why don't we hear from the Government
first and then from the defense and then I will give each side
a chance to respond in the situation here.
MS. SULLIVAN: If I may, your Honor, what we have pending as I
understand it is the CIA, we have two Defendants here, FBI, that
cross motion is pending. What is pending with the FBI is only
the fee issue, not the cross motions.
THE COURT: Right.
MS. SULLIVAN: And so that may change the order because it is
Plaintiff's motions for the fee. It is his motion. We don't
have a cross motion. We just have a reply.
THE COURT: Oh. All right. Well, we will hear from the Government
first and then we will hear from the Plaintiff and then we will
give each side a chance to respond.
MS. SULLIVAN: Fine. If I may get my notes.
THE COURT: You may.
MS. SULLIVAN: Let me if I may also tell you how the Government
plans to proceed. With me is Stephanie Hartell from General
Counsel's Office at CIA.
THE COURT: Welcome.
MS. SULLIVAN: And she has handled the laboring or the government's
papers and she will be arguing the Motion on the Glomar response
and then I will take the fee issue.
THE COURT: Um-hmm.
MS. SULLIVAN: Let me indicate two things and get those out of the
way having read Plaintiff's Fee Request but also his reply to our
Motion. One is that somehow in the initial stages he applies to
this Court that the FBI really hasn't met its responsibilities
under the FOIA arguing in part that there was a delay in
responding to this FOIA Request.
I think the factual background of this delay is significant. First
and foremost, there are two delays. One, of course, is processing
the initial FOIA Request which I will explain; but also the delay
in getting his FOIA Request to the FBI.
At the time in question in November, our office as well as most
Government agencies, but particularly the Department of Justice
and components were having unbelievable mail problems; and
recognizing that I made certain instructions to the staff that
was quite out of the ordinary from how the process works.
Apparently this wasn't done. We found an error. We then tried
FedExing. What happened then is they weren't delivering FedEx's
for two or three weeks that none of the staff knew about. I can
go ad nauseum on that, but to make a long story short, you have
got to attribute a good four months of the delay to myself, my
office, and our staff coping and dealing with this mail problem,
not just in this case, but many, many others.
THE COURT: All right.
MS. SULLIVAN: Now, we get to the processing of the FOIA Request.
I think it is pretty clear that they went through the normal
searches that would be done in any number of cases and then we
did the release, we then did our Motion.
It was clear from their response to our Motion that the FBI had
made a mistake and why. Clearly this is attributable to the date
of the events.
When the FBI went over, transferred over to the electronic
system in 1975 or so, they just didn't turn everything to
electronic and this was one of those. We then started the
This search consisted of because it wasn't in the electronic
system literally going to the FBI's warehouse and files and
going through three by five cards.
It then became clear to the FBI that this was going to be a
significant search and copying effort at which time the FBI
noted that they would continue and certainly process and
release the documents but wanted to be paid.
Generally speaking a fee waiver request is made at the time that
the initial FOIA Request is made because there is the automatic
presumption that indeed you will pay the fees up to particular
amount. It was -- arguably we should have alerted the Plaintiff
sooner in the retrievable process, but we were trying to expedite
this, the litigation in this case, to respond.
And I think that that factual pattern does not sustain any
argument or implication that the FBI has not or is not complying
Now directly to the fee issue, the merits of the fee issue
that we have. Plaintiff argues that indeed the release of this
information is in the public interest and what does he contend
that the public interest is?
He essentially tells the Court that there is a great interest in
what he is doing, that the public has a significant interest in
the techniques and methods of how the Government, i.e., in this
case the FBI works and that it does have implications for the
present U.S. aid program to Colombia and the voting public.
If you read those affidavits, let's see, he simply does not
sustain his burden of showing that it is in the public interest
and why. There are four factors that the Justice Department Regs
indicate and we have addressed them separately in our brief.
But by and large the discloseable portions of the material in
question and it is clear from Plaintiff's papers that they are
really seeking sources, informants, networks, intelligent
gathering techniques that in any event if they were processed
would be validly subject to exemptions and wouldn't be waived
just because this occurred in 1948.
Why? Families are still alive. Political upheaval, they have
battles among themselves down there. It is a different political
climate. Families would be embarrassed, retaliation among families
for father and grandfather would occur. They just wouldn't do it.
More importantly it wouldn't permit the Government agencies now
to obtain sources overseas and the case law is just rampant in
that. And more importantly that the disclosure has to be meaningful
and informative. Most of the meaningful and informative information
has essentially -- it is so remote. It has been the subject of
investigations on the Hill in 1948 and '49.
The reason Plaintiff has this information is that a lot of that
information unredacted is already at the archives so there is no
indication at all that this is -
THE COURT: Wouldn't that be an argument in favor since it has
already been released and already been allowed to get into the
public stream through a Congressional investigation, wouldn't
that be an argument in favor of allowing the remaining records
relating to these events to be similarly dispersed?
MS. SULLIVAN: But only subject to the redactions and that's my
point is that the passage of time does not diminish the valid FOIA
exemptions and under the regulations in the case law the Agency is
required to look at those documents that it has and compare from
what is already out there and to see whether it is going to
significantly, again the language of the Reg and the language of
the case law, would what is remaining significantly contribute to
what's already there?
But we still haven't gotten to the public interest. I am just
saying in terms of a scholarship. And that I don't think the
Plaintiff has sustained his burden.
Essentially this subject matter which is -- which appears from the
attachments to his affidavit generated in large part by the daughter
of Mr. Gaitan and similar type people that may have interest in
Cuban nationals there at the time in the Spanish speaking world may
still have a significant interest in this, but it clearly is not --
it is so remote as the cases and the regulations refer to and it is
so attenuated to any significant contribution to how the FBI worked,
particularly in light of the fact that the FBI office closed a year
before the assassination in question.
And there is no indication that there is in assessing the public
interest that there really is a broad audience for this. This is
the only FOIA Request received by the FBI on record relative to Mr.
Gaitan or these events.
Another factor to consider is dissemination. The Plaintiff indicates
that he is a researcher and lecturer. In support of this, he advises
the Court that he was asked to go to South Africa with the black
caucus on some program or lecture for civil rights involving a
completely different FBI program Co-Intel which is now a historical
He then submits to you a letter in Spanish -- I mean an article in
Spanish published in the Miami Journal where a newspaperman praised
him no doubt receiving information from his web site or being on
his mailing list. I think the Judicial Watch case addressed by Judge
Robertson and cited in our brief addresses this idea that just
because you have a web site in this day and age of web sites and
computers does not meet the statutory or regulatory standard of
wide dissemination to the public.
And I think we have cited that in our brief and I won't go to the
THE COURT: Okay. All right.
MS. SULLIVAN: To the extent that his interest in potentially
publishing a book would arguably be contributing to the public on
this front. And that's clearly more than speculative. Again, every
case that we have cited refutes that argument as a matter of fact
I mean even a respected, renown professor writing who has already
published on James Baldwin, a historical figure within the United
States as opposed to a foreign country, the Court has rejected his
And similarly the cases in this jurisdiction reject the idea that
one's interests in writing a book for whatever reason, whether it
be for a personal aggrandizement, intellectual exercise or even for
commercial gain don't meet the standard and I am prepared to answer
any specific questions that the Court may have now or maybe wait
until after argument.
THE COURT: Well, what I will do is I will hear from the Plaintiff
on the fee issue only and then we will go back to the Summary
Judgment issue on the CIA and then come back to the Plaintiff on
that. I think that makes more sense. All right.
MR. ALCORN: Good afternoon, your Honor. Daniel Alcorn here for the
Plaintiff. The Plaintiff is here, Mr. Wolf. It is an auspicious
day for him in that he has given up his successful career in
business and today has started in law school; and it is his first
day in law school and I think we should give him an excused
absence from one class which conflicts with the time of our hearing.
THE COURT: They are starting law school this early. My goodness.
MR. ALCORN: But I am hoping that they will be understanding of his
THE COURT: Well, good luck in law school.
MR. ALCORN: I did, your Honor, give him the appropriate warnings
before he went to law school.
THE COURT: I hope you did.
MR. ALCORN: He didn't take heed.
THE COURT: Don't tell him too much about the Bar Exam just yet.
MR. ALCORN: Your Honor, on the Fee Waiver Motion, I think the
Government misinterprets what the standard is on fee waivers. As
we cited the Campbell case in the D.C. Circuit which is actually
the case about the Baldwin, James Baldwin book that the Government
refers to; and the Campbell case says very explicitly that
researchers such as Plaintiff, archival researchers, historical
researchers, scholars, journalists are favored for fee waivers
and it is not the first time this has been the case law.
In the Circuit they cited another case, the Treasury employees
case, which says that fee waiver requests are to be liberally
construed for such requesters because the Congressional purpose
in having a fee waiver was in fact to encourage this kind of
archival research when it could benefit the public.
And so I think the Government's statement of the law in the
Circuit is not in fact my reading of the law in the Circuit which
is favorable to archival researchers such as the Plaintiff; and I
think that's been very clearly made.
THE COURT: Do we have any sense, Mr. Alcorn, about the burden,
the financial burden, on the Government in this case and to what
extent should that be a factor in the Court's assessment of
whether to allow a fee waiver from your point of view anyway?
MR. ALCORN: Yes. They have asked for $1,388 so far from the
Plaintiff. We think it is excessive in the number of hours that
are put in for what's been generated. They have said there will
be substantial more search time but they seem to have a finite
amount of new material to look at. One new main file they are
saying and some 166 cross-references.
I don't know if it is $2,000 or $2,500. it is something that,
you know, for a student is a large amount. I am not sure for the
Government given their resources it really is such a large amount.
THE COURT: Does the case law have the Court weigh the amount as a
factor in assessing whether or not to grant an amount or not?
MR. ALCORN: No, your Honor, I don't believe so. I think the fee
waiver is only entitlement of the individual as the individual in
the favored class and then does the he meet the other requirements
that are set out in the standard.
THE COURT: Okay.
MR. ALCORN: And in this case he does. As the Government has
mentioned, we are dealing here with historical records. We are
dealing with records that one would hope would not have to be
accessed through Freedom Of Information procedures.
You would think after 54 years they might be available through an
archival system such as the National Archive research the Plaintiff
has done to turn up some of the FBI records and other Agency files.
We are dealing we very old material here.
The FBI has even said that. They had to go to the old archived
materials, it is not in the index, not in the electronic index
so we are dealing here with historical research and historical
materials; and I think that colors both the fee issue and also the
issue the CIA is going to raise because the Executive Order on
classification has an automatic declassification provision for 25
After 25 years material would be in bulk automatically declassified.
I think that gives an idea of the standard the Executive Branch has
set as to when a document goes from current use to historical
status; and that's what we are dealing with here is an attempt by
an archival researcher to get scholarly historical material that
goes back to 1948.
And the issue that Plaintiff is seeking and the reason this is a
public interest, because public interest in these cases is defined
as something that will enlighten the public related to the
operations of the U.S. Government. It is not that you can go and
ask what the Government has on any topic overseas.
It is not the topic itself that determines the public interest.
It is the question of whether it enlightens operations of the U.S.
Government because the whole purpose of FOIA according to the
Supreme Court is to allow the American public to ask questions
about the operations of their Government.
It is not for Americans to ask questions about the operation of
another Government, foreign Government, or foreign individuals. It
is about the operations and activities of the U.S. Government and
the Supreme Court decisions say that's so that as a democracy our
citizens who each have a vote can then make decisions in their
voting decisions as to whether they like the direction that the
Government is headed and they approve of what the Government has
It is an informative process to inform the public as to their voting
decisions. That's the core purpose of the Freedom of Information Act.
In this situation as we have set out in pretty voluminous detail in
the various briefs, obviously there was a 1948 quite a notable
question about the performance of these Government agencies.
We know the historical circumstance the CIA was created in 1947.
Up until that time the FBI had handled Latin American intelligence
functions. I know in World War II the FBI was given exclusive
jurisdiction over Latin America. That jurisdiction came to and end
when the CIA was created in 1947.
We have events that occurred in April of 148 so they are in the
period of transition of the U.S. intelligence function from the FBI
to the CIA.
Then this terrible event, uprising, the assassination of Gaitan and
the uprising that occurred in Bogota, occurred when the Secretary
Marshall was down there and they were forming the OAS. They were
having the formative meeting for the Organization of the American
States, a very important meeting for the U.S. Government and U.S.
It was really an inception meeting in the Cold War, sort of a
putting together of an alliance within the Western Hemisphere in
relation to the Cold War; and then as we have read this tremendous
assassination occurred, the uprising occurred, the Secretary Marshall
was threatened, there were recriminations as obviously happens as we
have seen the pattern of recriminations in the U.S. in relation to
Government activity and performance.
And these questions were raised about whether the agencies had
performed properly leading to the Congressional investigations which
the Government spoke of, etcetera.
THE COURT: What about the argument that Ms. Sullivan made that there
has not been any other FOIA requests so it is hard to assess the
extent to which there really is any true public interest in any of
these events at all?
MR. ALCORN: Well, I think it is cuts against the Government's
argument that they made that this has been exhaustively researched.
They are also arguing that this topic has been exhaustively
researched and then they said but this is the only FOIA Request
they have ever seen which means he is the only researcher who has
sought these records which then to me means that these records are
more important and have more value because they in fact have not
been previously researched.
I think that that's not to my mind the measure is not how many FOIA
requests have been received. of course, these are such old records,
people might think they are in the National Archives, but it is
rather the public attention that has been put to this topic over
the years. And it wasn't just in 1948 because as we know from the
Studies and Intelligence article the CIA felt that this episode was
so important that they had a historical scholarly article that was
done internally about these events and the headline of that was, what
was it, [Distant] Events Shape the Craft of Intelligence. They thought
it was an important sort of thing.
Then that was released, commissioned in the late 1960s and released
in the 1990s as part of their historical review program designed to
get out things that they thought were of historical value.
And so it is not just the intense public interests that occurred back
in 1948. It is the continuing public interest demonstrated by the way
the CIA has treated this material as important material and have gotten
it out through their historical review program and the Darling book as
well as, the Arthur Darling book who is the official historian at the
CIA who covered this topic in his official history of the CIA.
And then we have in the record the memorandum from DCI William Webster
in 1989 where the Director of Central Intelligence himself determined
that this history needed to be released; that it was time to release
it. Apparently it was considered at very high levels. There is
indication in that memo that Mr. Darling was President Bush's favorite
teacher, is in that article and there are indications that Mr. Darling
was seeking to get his official history released and the DCI did that
So I think the public interest is pretty apparent from the treatment
of the subject matter over the period of time and from the historical
nature of the documents.
THE COURT: All right. Well, unless you have some other issue to raise
on the fees, any other point to make on the fees, so why don't we hear
on the Summary Judgment from the CIA and then hear from you in
response to that.
MR. ALCORN: All right. Sure.
THE COURT: Thank you.
MS. HARTELL: May it please the Court, your Honor, my name is Stephanie
Hartell and I represent the Defendant, Central Intelligence Agency.
Your Honor, the CIA should prevail on its Motion for Summary Judgment
because the Plaintiff has failed to meet its burden to show that the
Agency has waived its FOIA exemption by releasing the same information
that the Plaintiff seeks in its FOIA Request and it also does not meet
the well established standard of the D.C. Circuit for FOIA waiver in
Unless your Honor wants me to focus on something specifically, I would
like to first address the Agency's Glomar response and the law of the
D.C. Circuit on this and then go through each of the Plaintiff's
Exhibits and explain why it is not a waiver the Agency's FOIA
THE COURT: All right. Well, you can proceed. If I have any questions,
I will jump in.
MS. HARTELL: Okay. The Plaintiff made a FOIA Request to the Agency
about Gaitan, a specific individual, a foreign national and the agency
responded with what is commonly referred to as a Glomar response. That
is to neither confirm nor deny the existence of records.
THE COURT: I read that.
MS. HARTELL: Yes. And in this case, your Honor, the Agency does that
in all cases when we get a specific request like that because it is
such a narrow request. It would reveal a very narrow intelligence
interest of the agency and also could affect family members, affiliates
of this individual in Colombia even though it happened 50 years ago and
even though he is now dead.
As a preliminary matter, your Honor, the D.C. Circuit has well
established case law on when an agency waives its FOIA exemptions.
And absent a showing by a FOIA Plaintiff that the agency has released
information as specific and information that matches the information
released by the agency, then the agency does not waive its FOIA
And in this case, your Honor, the agency pursuant to FOIA exemptions
B1 and B3 GLOMARed the Plaintiff's FOIA Request. This standard has been
strictly adhered to the in D.C. Circuit and by the D.C. District Court
and the Plaintiff bears the burden of pointing to specific information
that matches and is as specific.
And that's a very important criteria that a Plaintiff can't use as a
-- can't use as this a vehicle to get more specific information than
what has already been released or as the D.C. Circuit stated, this
would be a disincentive for Federal agencies to release any information
if when they release a little information, a FOIA Plaintiff can then
come forward and get information which was not acknowledged publicly.
THE COURT: Now, in this case, Miss Hartell, the CIA's disclosure
occurred 50 plus years ago and, of course, before there was a FOIA.
MS. HARTELL: Yes.
THE COURT: There was no FOIA statute back then.
MS. HARTELL: That's right.
THE COURT: I doubt they would have ever dreamed such a thing up; but,
in any event, there was a Congressional inquiry -
MS. HARTELL: Yes.
THE COURT: -- that they were responding to and in connection with that
they made certain disclosures and they also -- the Agency's Director
testified about it.
MS. HARTELL: He did.
THE COURT: Now, does the record indicate -- again now I am asking
only about what's publicly known - does the record indicate to what
extent if any the Agency in preparing those disclosures and in
preparing the testimony of the - I should say the Director to
testify -- made any conscious decisions to disclose certain
information relating to these incidents but not others?
MS. HARTELL: No, there is no indication in the record. The Agency --
in fact, I don't know whether the Agency has records, does not have
records on Gaitan specifically, but when the DCI testified he was
testifying to refute this purported intelligence failure at the time
discussing political events and upheaval in 1948 Bogota and was not
there to address Gaitan or his assassination.
His assassination was a significant event that happened during the
upheaval, but that was not the subject of the Congressional inquiry.
THE COURT: So it is possible or it might even be equally possible that
the Agency before it made any disclosures or before the Director made
any disclosures consciously decided that it would disclose certain
information but not disclose other information?
MS. HARTELL: That's reasonable. I don't know whether that's in fact
true or not.
THE COURT: Because Congressional oversight as it exists today did not
exist back then, did it?
MS. HARTELL: No.
THE COURT: There were no intelligence agencies in the House or the
MS. HARTELL: That's right.
THE COURT: And so the House Committee, I think it was a House Committee
in the case in question was not in a position as the House Committee is
today, HPSCI, to have full access to the CIA's most classified
information and have an almost partnering type relationship with the
Agency prospectively as well as after the fact, isn't that true?
MS. HARTELL: Yes, it is true.
THE COURT: Right. So it is possible at least that what the Agency
disclosed back in '48 I guess it was only part of what it knew.
MS. HARTELL: That's true, your Honor, but it is important to focus on
what in fact the Agency did disclose back in 1948.
THE COURT: Okay.
MS. HARTELL: And in no way did Hillenkoetter acknowledge that the CIA
has records on Gaitan. It was a simply incidental description of what
was going on down in Bogota and it is important for the Court to note
that it wasn't -- no where in his testimony does he say: According to
CIA records on Gaitan, he was assassinated.
THE COURT: Right.
MS. HARTELL: And that's a significant distinction for the Agency.
THE COURT: So its sources and methods in neutral information that he
was revealing so to speak.
MS. HARTELL: Absolutely. He didn't credit that information to anyone.
I think he used pseudonyms for some of his source information but that
was in describing the larger political events; and when he talked about
Gaitan, it was in fact very brief because it was the most significant
event, I think that happened during the uprising.
THE COURT: If I understand you correctly, it is the Agency's position
that even though it is 50 years later that the sources and methods
that were used perhaps back then theoretically speaking could be
compromised if revealed in some circumstance, I am not saying in this
specific case, but in a hypothetical circumstance?
MS. HARTELL: Yes,your Honor. There are two different dimensions that
you can look at this in why it would be harmful to our foreign policy
and to our national defense and could be harmful to someone in
Just to give you an example, if the CIA was collecting intelligence
on some administer of gardening and statuary in country X and 50 years
later we release the fact that we have a record on that person, even
if we don't say what's contained in the record, the people back in
country X know number one that we are collecting information from its
citizens, that we are targeting this specific individual and this
specific position and so not only does it put a person currently in
that position in danger, it puts the person who may be deceased,
their family members in danger because in these other countries, it
is not unheard of for violence to occur when people are -- if there
is even a rumor of affiliation with the CIA.
It can affect foreign policy significantly and that's the reason why
we have this FOIA exceptions and the DCI has the authority and the
requirement to protect these things, to protect people, to protect
our sources and believe it or not, the way the Agency does business
now is not that much different than the way it did business then.
And we have a very interesting and specialized mission and, when it
comes to revealing something, sometimes the line is very thin of how
we protect it; but sometimes the line is nothing more than plausible
And that's why in this case to protect people, to protect foreign
policy, and to protect the national security, we deny when it comes
to a request on a specific individual. If the Plaintiff had made a
FOIA Request to the Agency about the event of the assassination or
about political upheaval in 1948 Bogota, the Agency would have
processed that, but it is protecting its sources and methods and
protecting individuals and it is affiliates that we Glomar when it
comes to a person in a FOIA Request.
Would your Honor like me to address the other exhibits or was the
THE COURT: Well, that was critical; but why don't you go ahead on a
few of the others.
MS. HARTELL: Okay. Exhibit 2 which is just news accounts, basically
news accounts of the testimony recount the same thing that he,
Hillenkoetter testified to. Hillenkoetter did agree to an interview,
but nowhere in interview does he mention Gaitan.
Exhibit No. 3 is the -- already mentioned by the Plaintiff's counsel
and that's the Studies in Intelligence article entitled The Bogotazo
which was published in a secret version of Studies in Intelligence in
1969. I can refer the Court to the declaration already filed by the
CIA by Lloyd Salvetti who describes the Studies in Intelligence to be
much like a law review of a school.
We have a disclaimer in the front of it that says the views are not
the views of the Agency and we have people who aren't CIA people who
write for the Studies in Intelligence. We have people who are critical
of Agency policies who write for that and moreover the information
that's contained in that article again does not say that we have
records on Gaitan.
It simply describes the events that happened in 1948 and in describing
them mentioned the fact that Gaitan was assassinated during that time.
The Plaintiff also made a supplemental filing of the book he also just
mentioned a few moments ago, The Central Intelligence Agency. Your
Honor, that book is more than 400 pages in length and only a few of
them refer to this controversy of whether the CIA failed to warn the
United States Government about the potential for upheaval in South
Again an incidental mention of Gaitan. No confirmation of whether or
not the CIA has records on him.
And Exhibit No. 4 is a printout from the web of the CIA's historical
release program and the Plaintiff asserts in his cross motion and
asserted again here today that Executive Order 12958 Section 3.4
requires that the CIA automatically declassify information that's
more than 25 years old.
As an initial matter, the declassification program has been extended
to April 2003; but aside from that, the same section of the Executive
Order also provides a series of exemptions to the declassification
program. So in other words the CIA doesn't have to release everything
that it has in its records after 25 years if there is information that
would reveal sources and methods or be harmful to national security,
the Agency does not have to release those records and can keep them
THE COURT: Can that decision from your point of view by the Agency
ever be reviewable?
MS. HARTELL: The decision of whether
THE COURT: Of whether or not something is actually qualified for an
MS. HARTELL: In Section 3.4 it mentions that the DCI has the
discretion to make a declassification decision and I am not sure on
your point precisely, you Honor, but certainly in other sections
like weighing the public interest, there is no judicial review of
So we have a general declassification requirement, but the DCI
because he has specialized knowledge of what happens in the world
of the CIA can keep certain things classified for as long as he
deems it is important to or appropriate.
If I could address just a couple other arguments that the Plaintiff
First of all, he states that the CIA operational files lose their
exempt status if they are the subject of a Congressional inquiry and
I would like to echo what I said earlier that the subject of that
inquiry was not Gaitan. The subject of the inquiry was a potential
intelligence failure. Also -
THE COURT: So you would agree with the premise but not its
application to the facts in this case?
MS. HARTELL: Absolutely not. The FOIA Request was very specific.
Gaitan was the subject. The Congressional inquiry was not the
assassination of Gaitan. It was a potential intelligence failure and
those two things are very distinct.
The Plaintiff also asserts that the CIA failed to conduct a public
interest balancing test set forth in Executive Order 12958, as I
just said, the Agency is not required to engage in a balancing test
if the DCI deems that the material at issue is too sensitive to be
declassified and that's not subject to judicial review.
One final thing is the Plaintiff attached the National Archives case
which is a D.C. District Court case of 2001 where the Agency actually
lost its Glomar and the Court determined that the Agency had waived
its Glomar defense. Interestingly the Plaintiff didn't attach the
final opinion in that case which the CIA ultimately won.
We did not release any information in that case. The Plaintiff had
identified in the public record where the Agency acknowledged it had
records on heads of state. Their FOIA Request was on heads of state.
So we lost our FOIA, but later when the Judge applied the standard
for a complete FOIA waiver, she very strictly adhered to the test
articulated in Fitzgibbon which is the specificity test that it must
match and that it must be an official disclosure and the CIA did not
have to release records on what heads of states we had or how many
So, in other words, because the Plaintiff in that case couldn't
point to something specific in the public record, we were not
required to release anything and the Judge determined that we had
not waived our FOIA exemption in that context. Do you have any
THE COURT: That will be fine.
MS. HARTELL: Thanks.
THE COURT: We will hear from Mr. Alcorn.
MR. ALCORN: Your Honor, the Government concedes that the Director of
Central Intelligence also has the authority to release information.
He has the obligation to protect information, but he also has within
himself the ability to release information and that is what is at
issue in this case because the public testimony that we have appended
to our cross motion before Congress, the Director of the CIA at that
time, Admiral Hillenkoetter, decided in his discretion in that
position to release publicly certain information and information that
he released does respond to my client's Freedom of Information
The request is not for everything about Mr. Gaitan's assassination.
The request language is for everything concerning Mr. Gaitan.
And when you look at the testimony of Admiral Hillenkoetter, you will
find that in many instances the testimony concerns Mr. Gaitan. He
describes his political force in Colombia. He describes the political
background in Colombia.
He when it comes to the assassination he gives the story about the
assassination, who committed the crime and what the motive was and
the crime. But even more than that he reads verbatim into the record
and for the press from CIA intelligence reports in fact secret until
the Director of the CIA decided to release them in his legal authority
to do so and these specific intelligence reports concern Gaitan.
They mention him. They mention details about his political work and
his activity. They mention details of his political party and activity
in Colombia and so what we have is a case which actually does meet the
standard of the D.C. Circuit cases as difficult as it is to meet which
is reading verbatim from documents that respond to a Freedom Of
Information Request that are responsive rationally and logically to
what was requested; and our contention, your Honor, is that having
been done, the Executive Order that exists currently on classification
does not allow reclassification of information that has been released
and publicly disseminated as this clearly was.
THE COURT: Mr. Alcorn, though, isn't it possible at least in theory,
of course, none of us knows I don't think among the six of us sitting
here, isn't it possible in theory that when the Admiral gave his
testimony, that he based on either advice and counsel with others
within the Agency are on his own judgment provided Congress with
excerpts from materials that they had that he in his judgment or with
the consultation of others thought would not be harmful to the
national security, would not compromise sources and methods and yet
would also be helpful to the Congress in dealing with the problems it
was wrestling with and, therefore, revealed some of what the Agency
had in its, for the sake of discussion, bank of knowledge relating to
this person, but not all of it and withheld from the Congress because
it was a different kind of oversight back then, they did not -- this
was not the House Intelligence Committee of today nor was it intended
They didn't have the kind of oversight that Congress has over the CIA
today. And so isn't it possible the Admiral decided, well, I will give
certain information to the Congress to help them deal with the problem
they have, hold back other information because it might compromise
sources and methods, and as to that which it gave certainly that's
part of the public domain and, if that happened theoretically, the
Agency may be doing nothing more today by classifying or I should say
qualifying this as exempt under a FOIA system that didn't exist back
then than what was done 50 years earlier in the absence of a FOIA
MR. ALCORN: It is entirely conceivable that the Director kept back
information. It is clear from the transcript he used Mr. X and Mr. G
to protect his sources and so the actual information he provided was
redacted to delete the names of the sources.
So clearly that kind of thinking was going on. The Studies of
Intelligence article also indicates that he spoke with President
Truman before making the testimony and it doesn't say that President
Truman said go do this, but their consultations were then high, that
the President and Director of Central Intelligence discussed what
was happening prior to his response.
And I believe the studies article says the President encourages
him to refute these allegations against the Government. So the
indications are that the responsible, legal, political officers of
the Government made a decision to release certain information which
was certainly within their power to do so.
What I think is wrong is for today the CIA to then say we can neither
confirm no deny that we have any documents that mention this individual
when back in the historical record, the contrary decision was made at
I am contesting the use of the Glomar to cover what is illogical and
irrational. That is, that once the DCI has released and read from
documents, not even given general testimony, he read verbatim from
intelligence reports that contain information about Mr. Gaitan. And
those are responsive to our Freedom of Information request. What I
think is illogical and improper is to come back now and be able to
assert we can neither confirm or deny that we have any such materials.
If the CIA has additional materials as you indicate might be possible,
the proper approach is for them to process and release to us the
segregatable materials that can be released. The statute itself
requires release of segregatable materials and the Circuit has been
very strong on that to require the release of segregatable materials
as we have cited in our briefs and the proper way that they should be
approaching this is to assert exemptions for things that they don't
want to release but give us those segregatable portions that have
previously been released by being read verbatim into the record of a
public hearing before the National Press Corp. by the Director at
Central Intelligence in 1948. But what I assert is wrong to come
back now and use a Glomar and say we are not going to admit what we
admitted back in 1948 and the Executive Order 12958 does not permit
reclassification of information that has been released and publicly
So I don't see where the legal authority is to come back and
essentially reclassify something that's already been publicly
released by the Director of Central Intelligence.
Now, these facts are uniquely interesting facts. These are not the
facts of Ashfar and Fitzgibbon and the other cases in D.C. Circuit
and the D.C. Circuit said you must show the match and you must show
the release of the same material.
In this case, we have that because of the verbatim reading from
intelligence reports into the public record. We actually have what
the test is set out in the Circuit. So what I am saying to your
Honor, at that point we can't accept a Glomar, can't confirm or
deny material that has already been released that is responsive to
Their option now is to process this request and they should be
giving us the segregatable portions that have been previously
released and then they should make their release determination
about the rest of it. They should determine whether they are going
to give us more or not. I mean that's the decision that we are
entitled to under the Freedom of Information Act for them to make
It is not reflexive secrecy in these responses. That's what their
legal position is - reflexive secrecy, but that's not what the
Freedom of Information Act requires. It is a discretionary decision
by them to decide what they want to release and not release.
And the reason we appended the historical review program and
those documents is to show that the CIA is not entirely a secrecy
organization, that the CIA also has an understanding and the
Director has an understanding of the release of certain information
and they have become, began rather elaborate programs to release
historical data and historical information.
So my concern with their argument is that they are presenting
themselves entirely that it is all about secrecy. Well, it is
not all about secrecy. Decisions are made about the release of
information as well. In fact, the sources and methods statute what
does it was say, to protect sources and methods from unauthorized
disclosure. That means there is such a thing as authorized
disclosure because why would you use the term unauthorized if
there wasn't the flip side which is authorized.
And that's my concern is that they are asserting this sort of the
reflexive secrecy over something that has been previously been
released in the past. They are not even getting into the more
interesting issues which are do you release this kind of historical
material, and we would contend that after the 54 year period, we
are talking - that's a very long period of time, this is not
material from last year or the year before or even the late Cold
War period. We are talking about 54 years.
An executive order, I was unaware of an extension on the automatic
classification. We filed with the Court when the automatic
declassification became effective on October 17, 2001, and I have
not seen a filing otherwise, but even assuming that that is an
issue, the Executive Order talks about 25 years as the period for
It gives you some idea of what the standard is for when a document
goes beyond the need for its protection. These are at 54 years. The
exhibits we have attached to our cross motion on the historical
review program show that many covert operations that were conducted
after 1948, the Bay of Pigs, for example, Guatemala and Honduras
operations, things that happened even covert operations in the 1950's
and '60s, they have released material including the operational file
material under the historical review program.
So it is not that releases don't occur and it is not that information
doesn't come out. It is obviously on their part a decision they are
making as to what they release and what they don't, but the fact that
something in the '50s or the '60s would qualify for historical
release and then we are dealing with 1948 and we have an article
written about this topic in 1969 that was released in the 1990s.
I don't think that what we are seeing here is a case that supports
the rather draconian, reflects a Glomar response that has been
asserted in this case and that is our problem.
We would also call to the Court's attention a local Rule 7.1H and the
statement of material facts not genuinely in dispute that we filed to
support our Cross Motion for Summary Judgement and they did not file
a responsive statement of genuine issues remaining in dispute and that
is not in compliance with local Rule 7.1H. And local Rule 7.1H says at
that point the Court may treat those facts as admitted and those facts
include the public acknowledgment that files were maintained about Mr.
Gaitan and the testimony that occurred and the Studies and Intelligence
And I found a case of the Circuit on this issue, Gardells versus CIA
637 F Second 770. This is the Gardells case back in the '70s and '80s
in which the Circuit said that the CIA cannot ignore the requirement
of the Summary Judgment Motion procedures of the Court.
The rule has been renumbered. I think the language may even be a
little different than the rule we have currently, but the Circuit
said that the CIA is not free to ignore those requirements; and they
rejected the statement that was filed in that case and they sent the
case back to the District Judge and they told the District Judge that
they need to get them to follow the proper procedures because the
penalty for not following the procedures is admission of the facts
and that's what the Circuit warned was the penalty in the situation.
So you have procedurally basically what we are arguing procedurally
we have essentially a concession, an admission under our local rules
about the public acknowledgment, about the maintaining of files, and
the article that was published; but even logically, even beyond the
admission, just logically it does not comport that having admitted
the existence of such files you can later then refuse to admit or
deny that you had such files.
So we rely on the local rule and we also rely on the logic of the
situation that the defense they have asserted here simply is not
one that they should be allowed to use in this situation and instead
what the Court should do is require that they follow the normal
procedures of the Freedom of Information case and release to us the
segregatable materials that they are willing to release. Maybe they
are willing to release them at all at this point. It has been 54
years. That's a decision that they would have to make.
THE COURT: These would be redacted materials?
MR. ALCORN: Yes, the process would be that they have not made any
first release of materials because they just asserted the Glomar
won't confirm or deny. So if this were to proceed like a normal
Freedom of Information case, then they would release to us what
they are willing to release, redact what they want to redact,
assert exemption claims as they would claim them; and then the
Court determines in a litigation process whether those exemptions
are appropriately claimed.
And they have short-circuited that process by the Glomar claim of
just refusing to confirm or deny anything and I think that that's
inappropriate on the facts of this case to do so.
On the operational files issue, we also believe today the Government
has made some concessions. One is that there was a Capitol Hill
investigation of a topic in which Mr. Gaitan came up as a subject
in the discussion of the investigation and we think that invokes the
operational file issue, the 50 U.S. Code 431 C requiring the search
also of operational files.
And Chief Judge Hogan just issued an opinion in another case I am
handling, it was just issued last Friday in the Kelly case, Kelly
versus CIA which is 2000 Civil 2498 and in that case he has ordered
the search of operational files for the MKUltra project which was
the drug experimentation project at the CIA and he did so on the
basis that it had been the subject of prior investigations including
Congressional investigations and that therefore they had to search
and release to us releasable information from the operations files
regarding the MKUltra program.
THE COURT: Sometimes the term investigation, it is not the same as,
say, a Grand Jury investigation. Congressional investigation is a
bit of a catch all phrase that gets thrown around and used, Mr.,
Alcorn by even courts sometimes to refer to a myriad of inquiries
that Congress has engaged in and the Committee as I recall the
transcript that the Admiral appeared before was not anything in
any way, shape or form like the Committees that exist today.
And my sense is that the quote "investigation" close quote that
was going on then was a very different type of investigation to
the extent it was really a truly an investigation than what you
would traditionally expect to see of the CIA from either of the
two, the House or the Senate Intelligence Committees as they exist
and have existed now for something in the area of 20 years, 25
years, something like that.
So, you know, there is a terminology issue here with regard to
whether or not the Admiral was really in the middle of a true
investigation or investigation was intended as is referred to in
these opinions and the statutes.
MR. ALCORN: And I use the term the Chairman of the Committee, of
that Congressional Committee used in introducing the proceedings,
that we are here to have an investigation of what the CIA did; and
that's the term of the Congressional Committee Chairman.
He also reflects that that Committee is the Committee of Congress
that created the CIA in 1947. And so the Congress in their wisdom
had organized themselves in such a way that that was the
responsible Congressional Committee.
I also point out that the 50 U.S. Code 431 C does not use the
proper names of the current Intelligence Committees of House and
Senate which they could have done. They were being created at the
time it was passed in 1984. The statute uses lower case generic
term of intelligence committees of Congress and the Congress
could have used the official names or more directly linked it to
the ones that were created later, but the generic term was used
and I think you have to give plain meaning to that generic term.
And I think from the record in this case it is quite clear that
the Congress had given jurisdiction over the CIA to this
Congressional Committee and that's why they held this hearing and
they called it an investigation and I know a lot of procedures
were different then in the CIA, Executive Branch, Congress,
whatever; but that's the passage of time. Things are different.
It doesn't take away the plain meaning of what they say they were
The other point I would like to make to your Honor is from the
argument today is that the CIA has mentioned that if this request
were about events, the event of the Bogotazo, then they would
release information and that statement was made here at the podium.
And I have a lot of difficulty on these facts of upholding the
Glomar claim they made when they make that statement that they are
willing to release information about this subject matter and topic.
They are asserting the unassertable which is that no one has ever
officially confirmed for the CIA that they have any files concerning
Mr. Gaitan and I take that as that in fact if they are willing to
release information about the events we are talking about, to
Bogotazo, the Pan American Conference, the issues that have come up
that concern Mr. Gaitan, that on these facts with the kinds of
admissions and releases that were made previously, I don't see why
the Court should sustain a Glomar but rather should take them up on
their asserted willingness to release information about certain
events and topics.
I just don't see why they are seeking to shut down the case and not
go through their search and release of information when they state
they are willing to do that for these events. They are stuck very
hard on the Glomar in a factual situation which I think is
unsustainable on the law of the Circuit because in this situation
unlike any that we have seen, they actually read from their own
records into the record that contained information about Mr. Gaitan.
And so I think it is an important concession and one for the Court
to take up that there is a willingness on their part to search and
review and release information about these topics and about this
period of time.
There is clearly no, presumably no national security problem in
relation to that, if they are willing to release information about
these events in 1948; and I think that that's something that your
Honor should keep very much in mind as we go forward.
THE COURT: All right. I will give Miss Hartell a couple minutes. I
have another appointment that I have to go to but thank you, Mr.
Alcorn. I will just give you the last word, so to speak.
MS. HARTELL: Very quickly, your Honor, first of all, I didn't say
that the Agency would release documents on the event. I said that
we would process the FOIA Request and that's important.
I don't know whether or not and I don't know what kind of records
the CIA has. We process FOIA requests on events. We don't process
FOIA requests on specific individuals to protect people, to protect
their lives, to protect people who risk their lives for the Agency.
If this Court is to decide otherwise, we would lose a significant
protection of our sources and methods and I think it would be an
extension of FOIA law like I have never seen before in this District.
In reference to Plaintiff's assertion that their memorandum of
statements and material facts and that we didn't refute that,
your Honor, he is referring to I think it is number eight in that
memorandum in which he claims that the testimony is an admission.
Your Honor, that's a legal conclusion that only this Court can
decide and, moreover, the CIA addressed that in its next pleading
with the Court. It addressed the fact of Hillenkoetter's testimony
and how we characterized it. So it wasn't a fact. It was a legal
THE COURT: Okay. What about this notion of since he read from
reports, releasing the reports but with redactions, that's what Mr.
Alcorn would obviously like to see here at a minimum, the reports
but with redactions as to those portions that are in the judgment
of the Agency protectable under these subsections of national
MS. HARTELL: Your Honor, it is the way that the Plaintiff couched
his FOIA Request. The Agency wants to be able to protect its people
and, if the Plaintiff changes his FOIA Request to the event of the
assassination of Gaitan, he can list any number of things that
don't describe all records on this individual person.
The Agency in protecting its people wants to be able to neither
confirm nor deny and eliminate worldwide speculation as to why
does the CIA have records on Gaitan? Was he an asset? Did they
collect information on all political candidates? Are they
collecting political candidates right now in my country?
Aside from something that would have a much less severe effect of
the CIA collected intelligence on the event of the assassination or
on the political uprising. That's a very important distinction and
it is a protection that the Agency clings to tightly in order to
protect the way that it does business.
THE COURT: All right. Anything else?
MS. HARTELL: No, your Honor.
THE COURT: Okay. Fine. Ms. Sullivan.
MS. SULLIVAN: Your Honor, it will take about two seconds.
THE COURT: That's about all you are going to get.
MS. SULLIVAN: I made a mistake in citing Campbell. It was the
last case. I made a mistake. My opposing counsel was correct. The
Judicial Watch case that I referred to was the Gonzales matter
and if there wasn't a public interest in how the Government was
handling the Gonzales matter, I don't know what it was.
It certainly was current. And also one item is it is not just
that there just might be a specific interest in this topic by the
Plaintiff, Mr. Wolf, as a would be researcher which is scantily
documented in the file.
It must have a much broader public interest than just that and I
think I mixed up Blakey B L A K E Y which was cited in my brief. I
just transposed the two cases and the facts.
THE COURT: All right. Well, thank you for the clarification. The
Court will take the issues under advisement, the Motions under
advisement and appreciates the quality of advocacy on both sides.
I am sure it will be helpful to the Court in reaching a decision
and the Court wishes to wish the Plaintiff all the best in law
school. It is quite a challenge I might add. We will stand
(Whereupon, the proceedings were concluded at 4:15 p.m.)
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