The CIA can selectively divulge classified information to selected reporters in emails yet withhold that information from other journalists or members of the public when they seek the same information under the Freedom of Information Act, a federal judge in New York has ruled.
The decision appeared in the court record on Friday but became more widely disseminated Monday.
The ruling comes amid vigorous national debate over leaks to the media and the use of anonymous sources in covering national security news, including an ongoing FBI investigation into Russian attempts to influence the 2016 presidential election.
Judge Colleen McMahon of the Southern District of New York ruled that the CIA does not have to release parts of five emails senior CIA officials sent to journalists from the Wall Street Journal, the New York Times and The Washington Post in 2012. At the time, the CIA was facing pressure over links it may have had to a Pakistani doctor who helped American forces hunt down Osama bin Laden.
The ruling came in a lawsuit filed by Adam Johnson, a freelance reporter, who was represented by a first amendment lawyer in New York City, Daniel Novack.
“The Director of Central Intelligence is free to disclose classified information about CIA sources and methods selectively, if he concludes that it is necessary to do so in order to protect those intelligence sources and methods, and no court can second guess his decision,” McMahon ruled.
McMahon ruled that such communication is not part of the public domain, and that the CIA was within its rights to discuss protected information in emails to reporters of certain media outlets, just as the media outlets are protected by law when sued to divulge anonymous sources.
The ruling may lend itself to concern in some heated corners of the national debate about possible complicity between a select group of reporters and the national security establishment. But one expert said such an interpretation would be wrong.
“It might make people wonder whether the agency is planting stories or manipulating reporters in a self-serving way. I don’t think that’s what’s going on here,” said Steven Aftergood, head of the Federation of American Scientists’ Project on Government Secrecy.
The CIA had previously released 574 pages of correspondence between its public affairs office and numerous journalists, and the lawsuit specifically asked for five emails that had been redacted in that batch.
Judge McMahon’s ruling indicated that the CIA may have sought to press the journalists not to publish classified information.
“My sense of what happens in these situations is that the reporters initiate the contact with CIA having already learned some classified information and then are coming to the agency to comment or (offer an) explanation,” Aftergood said.
The CIA sent the emails to columnist David Ignatius of The Washington Post, New York Times national security reporter Scott Shane of the New York Times and Siobhan Gorman, a former national security reporter at the Wall Street Journal.
Novack said his client had not yet decided whether to appeal.
Novack questioned why the judge did not recognize emails from the CIA’s press office to individual reporters as public records once they left the confines of the agency. But he cautioned against reading a political context into the case.
“Some of the right-wing conservative media picked up on this case … and saw some sort of evidence that, you know, that there’s some sort of collaboration between journalists and the government,” Novack said. “If you look at the journalists themselves, they are across the spectrum.”
More troubling to him, he said, were earlier emails that indicated how the CIA couched its language when it communicated with journalists.
“There’s a ton of correspondence where they’ll say ‘off the record’ or ‘not for attribution’ or variants of that,” Novack said. “The CIA is able to get its words out there into the public without the public necessarily seeing its fingerprints.”
The CIA declined to comment on the ruling.
Tim Johnson 202-383-6028, @timjohnson4