The Exemption Game

Nearly every page of the CIA’s “Family Jewels” released yesterday contains at least one redaction. As I wrote yesterday, some of these redactions are highly suspicious; others merely highly questionable. A few seem irrational, illogical, and apparently completely arbitrary.

The only exemption markings anywhere in the release are on the first page – the cryptic notation “(b)(1), (b)(3), (b)(5), (b)(6)”. What does this mean? Quite simply, those are the exemptions the Central Intelligence Agency appears to be claiming for the entire 700 page release. Described in the Freedom of Information Act, those exemptions allow the withholding of certain types of information from release under the FOIA for fairly specific reasons. Let’s run through the CIA’s chosen exemptions one-by-one:

(b)(1) – usually referred to as the “national security” exemption, it permits withholding of information about “matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, AND are in fact properly classified pursuant to such Executive Order.” (emphasis mine)

This seems reasonable, but I’m not one-hundred percent convinced that all the “secret” and “top secret” documents in the release are in fact properly classified.

(b)(3) – Widely used, and widely abused, this exemption allows the withholding of “material which any statute specifically exempts, provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, OR establishes particular criteria for withholding or refers to particular types of matters to be withheld.”

Where the Central Intelligence Agency is concerned, there are two applicable “statutes” – the National Security Act of 1947, and the CIA Act of 1949. The former states “the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure” (emphasis mine), and the latter makes the Agency exempt from being required to disclose information about their “internal structure”.

(b)(5) – This exemption permits the withholding of “inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency”; in layman’s terms, this basically means legal documents, including pre-decisional policy documents.

(b)(6) – A commonly-used exemption, it permits the withholding of “”information in personnel and medical files and similar files” which “would constitute a clearly unwarranted invasion of personal privacy.”

Given that these appear to be the only exemptions the CIA is claiming throughout all seven-hundred pages, I’m very suspicious of some of the redactions they’ve made. In particular, since only a tiny handful of documents are marked in accordance with Executive Order 12958, I’m skeptical that the classified-information exemption is properly applicable. The “sources and methods” clause is probably widely applicable, but for concerns forty years old, I suspect it may be concealing information that’s merely “embarassing”.

Internal structure redactions are probably the most common throughout, for understandable reasons, and though they’re never specified, I think most people can figure out where this exemption would apply.

The last, personal information, exemption is seemingly straightforward; it likely protects a lot of peoples’ names, and similar details, and it’s easy enough to see where such would be applied.

Here’s the thing, though – the redactions seem to have been made (at best) haphazardly, and in some cases arbitrarily. All throughout is information that could certainly be legally withheld from disclosure under one of the above exemptions, but wasn’t. Conversely, there are redactions that appear to have no logical basis under any of the four claimed exemptions, nor, for that matter, any other. I cannot fathom the logic behind redacting some signatures and sets of initials, but leaving others by the same people. Actually, I can’t fathom the logic, nor exemption, behind redacting anyone’s signature, then leaving their typed name intact right below it.

I’m not saying this with any kind of knowledge of inside information, nor having communicated in any way with the National Security Archive, but I can almost guarantee that there will be appeals over these documents, which were only produced by the CIA after fifteen years of wrangling and a court hearing.

(more on redactions and markings on CIA documents right here)

Published in: General, Security | on June 27th, 2007| Comments Off on The Exemption Game

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