The Obama administration on Thursday fought to keep secret a CIA account of the 1961 Bay of Pigs debacle.
Half a century after the failed invasion of Cuba, and three decades after a CIA historian completed his draft study, an administration lawyer told a top appellate court that the time still isn’t right to make the document public.
“The passage of time has not made it releasable,” Assistant U.S. Attorney Mitchell P. Zeff told the U.S. Court of Appeals for the District of Columbia Circuit.
But in this latest battle over government secrecy and the lessons of history, judges Thursday sounded a tad skeptical about the Obama administration’s sweeping claims. At the least, judges on what is sometimes called the nation’s second most-powerful court suggested there could be a limit to how long government documents remain locked away.
Through a Freedom of Information Act lawsuit, the private National Security Archive is seeking the final volume of a five-volume CIA history of the Bay of Pigs. The opus was prepared by a CIA staff historian between 1973 and 1984. Four volumes have been released, under FOIA pressure, but the fifth volume, which examines the CIA’s own internal investigation of the invasion, remains secret.
“Here we are, 30 years later,” Judge Judith W. Rogers noted Thursday. “The author is deceased. The events occurred long ago.”
Rogers added that an agency’s ability to exempt certain documents from FOIA is “not endless,” while another member of the three-judge panel, Judge Brett M. Kavanaugh, noted that the records of the 1787 Constitutional Convention were sealed for 30 years. The law governing presidential records specifies that they become public 12 years after the president leaves office.
“If the (CIA) wins, it would throw a burqa over any draft document an agency produces,” Thomas Blanton, executive director of the National Security Archive, said after the 45-minute oral argument.
At the same time, underscoring the substantial challenges facing the National Security Archive, Kavanaugh cautioned that forcing a government agency to turn over even old documents could suppress candid debate. The administration, likewise, argues that the draft document is exempt from FOIA because it is part of the intelligence agency’s deliberative process.
“The chilling effect is that historians working on internal agency histories would be discouraged from taking unpopular positions,” Zeff argued.
A research organization located at The George Washington University, the National Security Archive files upward of a thousand FOIA requests annually to obtain federal documents. When rejected, it sometimes sues. Allon Kedem, a former Supreme Court clerk now with the law firm Skadden, Arps, Slate, Meagher & Flom, was representing the organization pro bono Thursday.
In 2011, researcher Peter Kornbluh obtained the first four volumes of what was called “The Official History of the Bay of Pigs Operation.” Originally classified top secret, and prepared by CIA historian Jack Pfeiffer, the 1,200 pages revealed new details about the ill-fated April 1961 invasion launched by CIA-trained fighters. Planning for the invasion began during the Eisenhower administration in response to the rise of Cuban President Fidel Castro. President John F. Kennedy inherited the scheme when he took office in January 1961.
The already released volumes, for instance, recount the CIA maneuverings to covertly gain use of an inactive Marine Corps air station in Opa-locka, Fla. Anti-Castro Cuban exiles recruited in the Miami area formed the backbone of the roughly 1,500-man invasion force, which was defeated within about four days.
A 400-plus page report by the CIA’s inspector general critiqued the invasion. Pfeiffer, the CIA historian, in turn critiqued the inspector general’s report in the still-secret fifth volume of his history. Pfeiffer’s supervisor, though, called the volume a “polemic” troubled by “serious deficiencies,” and said that it would not be published.
“Dr. Pfeiffer’s account (was) an uncritical defense of the CIA officers who planned and executed the Bay of Pigs operation,” the supervisor, J. Kenneth McDonald, later stated.
The CIA inspector general’s report – the subject of Pfeiffer’s critique – has itself already been made public under a FOIA request.