Professor loses court bid
for Vietnam-era presidential briefs

By Julia Cheever

September 4, 2007

A federal appeals court in San Francisco ruled today that a University of California professor is not entitled to receive copies of two 40-year-old presidential briefs prepared during the Vietnam War.

The 9th U.S. Circuit Court of Appeals rejected a Freedom of Information Act request by UC Davis Professor Larry Berman for two intelligence summaries known as President's Daily Briefs that were given to President Lyndon Johnson in 1965 and 1968.

Berman is a political science professor specializing in studies of presidencies and of the Vietnam War.

The daily intelligence summaries began in the early 1960s in the administration of President John F. Kennedy and were originally written by the CIA. Since 2005, they have been prepared by the U.S. director of national intelligence.

The briefs are "potentially the most important and classified document in this nation's intelligence apparatus," the appeals court said.

A few briefs have been made public over the years for various reasons, including an Aug. 6, 2001, brief to President George W. Bush entitled "Bin Ladin Determined to Strike in U.S." and a similar warning prepared for President Bill Clinton on Dec. 4, 1998.

Berman argued in a federal lawsuit filed in Sacramento that the passage of time had ended security concerns about the two Vietnam-era briefs. He also said any sensitive information could be deleted from them.

The CIA contended that disclosing the memos and thereby revealing old sources of information could hinder the recruitment of new sources.

A three-judge panel of the appeals court agreed with the CIA, saying that the agency was best equipped to weigh national security danger and that its position should be given "great deference."

Circuit Judge Raymond Fisher wrote for the court, "The extreme sensitivity of the PDB enhances the plausibility of the CIA's assertion that disclosure of the requested PDBs could cause harm even 40 years after their generation."

The court upheld a ruling by U.S. District Judge David Levi of Sacramento rejecting Berman's request. But the panel turned down the CIA's additional argument that all presidential briefs should be automatically protected from Freedom of Information Act disclosure.

Instead, the court said, the question of whether a CIA document is confidential should depend on the content of the particular document.

Thomas Burke, a lawyer for Berman, called the decision "extremely disappointing."

Burke said, "The court said the government gets enormous deference even when deciding on national security matters that occurred 40 years ago.

"The public has been deprived of learning about the history of the Vietnam War," Burke said.

Burke said no decision has been made on whether Berman, who is currently in Vietnam, will appeal further to an expanded 9th Circuit panel or to the U.S. Supreme Court.

Copyright © 2007 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

####