Sacramento, California, 27 January 2006 - The nation's leading history and political science associations, along with a number of prominent scholars of the Presidency and the Vietnam War, yesterday filed an amicus brief in a lawsuit brought by University of California, Davis, Professor Larry Berman. The case involves Berman's effort to obtain release under the Freedom of Information Act of two almost 40-year-old CIA memos to President Johnson.

Represented by Matthew W.S. Estes, the scholars seek to alert the United States Court of Appeals for the Ninth Circuit to the broad implications of the lower court's ruling.

In the lower court, U.S. District Judge David Levi held that the CIA may categorically refuse to review for release all President's Daily Briefs, in perpetuity, regardless of their content, because the intelligence reports are a protected intelligence method. Attorney Matthew Estes commented, "Judge Levi's expansive ruling could reverse 40 years of access to historical CIA intelligence products. The decision is not required by the Freedom of Information Act or court precedents and, in fact, is in direct conflict with applicable Supreme Court holdings and Congressional action. It also represents poor public policy that runs counter to the principle that historical presidential records should be made public that has been cited by the Supreme Court, Congress and our past Presidents."

Further, Judge Levi held that the Briefs also could be categorically withheld because they are protected by a limitless presidential privilege for confidential communications with advisers. The scholars argue that this holding contradicts the Supreme Court's decision in the Nixon tapes cases that privilege erodes over time and Congress's clear finding in the 1978 Presidential Records Act that the privilege no longer applies 12 years after the president leaves office. Moreover, the rationale for the privilege makes no sense in light of the extensive public availability of President Johnson's deliberations, including over 400 hours of tapes of his oval office conversations.

The amici include: The American Historical Association, the American Political Science Association, the National Coalition for History, the Organization of American Historians, the Presidency Research Group, the Society of American Archivists, and the Society for Historians of American Foreign Relations, along with noted scholars including Barton J. Bernstein, Robert Dallek, Lloyd Gardner, Fred I. Greenstein, George C. Herring, Jeffrey P. Kimball, Stanley I. Kutler, Walter LaFeber, Anna Nelson, and Robert D. Schulzinger.

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Previously Released PDBs

President's Daily Brief, 7 August 1965 (4 pp.), declassified 15 July 1993
Source: Lyndon Baines Johnson Library (Austin, Texas), National Security File, Intelligence Briefings File, obtained by Dr. William Burr.

President's Daily Brief, 13 May 1967, (1 p. excerpt), declassified 14 May 1993

President's Daily Brief, 16 May 1967 (2 pp. excerpt), declassified 14 May 1993

President's Daily Brief, 27 May 1967 (1 p. excerpt), declassified 14 May 1993

President's Daily Brief, 5 June 1967 (3 pp. with "Late Items"), declassified 14 May 1993
Compare to FRUS version which omits Nigeria athttp://www.state.gov/r/pa/ho/frus/johnsonlb/xix/28058.htm

President's Daily Brief, 6 June 1967 (1 p. excerpt), declassified 14 May 1993

President's Daily Brief, 7 June 1967 (1 p. excerpt), declassified 14 May 1993

President's Daily Brief, 8 June 1967 (2 pp. excerpt), first page declassified 14 May 1993, "Late Item" page declassified 6 November 1985

President's Daily Brief, 9 June 1967 (3 pp.), first two pages declassified 14 May 1993, "Late Item" page declassified 6 November 1985

Source for the above 1967 PDB excerpts: Lyndon Baines Johnson Library (Austin, Texas), National Security Council History, Middle East Crisis, Appendix A, obtained by Dr. William Burr.

 

President's Daily Brief, 1 April 1968 (5 pp.), declassified 21 December 1989
Source: Lyndon Baines Johnson Library (Austin, Texas), National Security File, Intelligence Briefings File, obtained by Dr. William Burr.

President's Daily Brief, 25 April 1967
Source: Declassified by the Johnson Library, 10 December 2004

President's Daily Brief, 29 May 1967
Source: Declassified by the Johnson Library, 2 December 2004

President's Daily Brief, "Subject: Bin Ladin Preparing to Hijack US Aircraft and Other Attacks," 4 December 1998
Source: 9/11 Commission Report, Chapter 4, pp. 128-129

President's Daily Brief, "Bin Ladin Determined To Strike in US," 6 August 2001

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Court Documents

NEW - Appellant's Reply Brief, April 20, 2006

Legal Complaint and Exhibits

Complaint - Larry Berman, Plaintiff v. Central Intelligence Agency, Defendant.
Complaint for Declatory and Injunctive Relief for Violation of the Freedom of Information Act. Filed 23 December 2004

Exhibit A - Previously released PDBs from the Johnson era

Exhibit B - 1998 PDB to President Clinton and 2001 PDB to President Bush on bin Ladin

Exhibit C - Larry Berman, Freedom of Information Act Request to CIA, 3 March 2004

Exhibit D - CIA, Letter to Larry Berman Acknowleldging 3 March Request, 17 March 2004

Exhibit E - CIA, Letter to Larry Berman Denying 3 March Request, 15 April 2004

Exhibit F - Larry Berman, Letter to CIA Appealing 15 April Denial, 6 May 2004

Exhibit G - CIA, Letter to Larry Berman Accepting 6 May Appeal, 13 May 2004

Exhibit H - CIA, Letter to Larry Berman Denying 6 May Appeal, 21 June 2004

Government Answer

Central Intelligence Agency Answer to Berman Complaint, 22 February 2005

Declaration of Terry N. Buroker, Directorate of Intelligence Information Review Officer, Central Intelligence Agency, 1 April 2005

Central Intelligence Agency Motion for Summary Judgment, 4 April 2005

Plaintiff Response and Cross-Motion for Summary Judgment

Notice of Plaintiff Larry Berman's Cross-Motion for Summary Judgment, 2 May 2005

Plaintiff Larry Berman's Memorandum of Points and Authorities in Support of Cross-Motion for Summary Judgment, 2 May 2005

Plaintiff Larry Berman's Statement of Undisputed Facts in Support of Cross-Motion for Summary Judgment, 2 May 2005

Plaintiff Larry Berman's Opposition to CIA Statement of Undisputed Facts and Statement of Additional Facts in Opposition, 2 May 2005

Declarations in Support of Plaintiff's Cross-Motion for Summary Judgment

Declaration of Bill Moyers, former Special Assistant to President Lyndon Johnson, 25 April 2005

Declaration of George Herring, Professor of History, University of Kentucky, 29 April 2005

Attachment 1 - March 6, 1996 cover letter to Director of Central Intelligence, Hon. John Deutch from Visiting Fellow John Lewis Gaddis at the Woodrow Wilson International Center for Scholars, with attached Report of the February 5, 1996 CIA Historical Review Panel Meeting

Declaration of Plaintiff Larry Berman, 28 April 2005

Attachment 1 - Curriculum Vitae of Larry Berman

Attachment 2 - March 3, 2004 FOIA request to Robert T. Herman from Plaintiff, Larry Berman

Attachment 3 - March 17, 2004 letter to Larry Berman from Robert T. Herman

Attachment 4 - April 15, 2004 letter to Larry Berman from CIA Acting Information and Privacy Coordinator Alan W. Tate

Attachment 5 - May 6, 2004 letter to Agency Release Panel, C/O Alan W. Tate from Larry Berman

Attachment 6 - May 13, 2004 letter to Larry Berman from Alan W. Tate

Attachment 7 - June 21, 2004 letter to Larry Berman from Alan W. Tate

Attachment 8 - March 28, 1968 cover letter and Directorate of Intelligence memorandum to President Lyndon B. Johnson from Special Assistant to the President for National Security Affairs Walt Rostow

Attachment 9 - April 6, 1968 notes from meeting between President Johnson and General William Westmoreland

Attachment 10 - April 4, 1968 memorandum to President Johnson from Special Counsel Harry C. McPherson

Attachment 11 - August 5, 1965 summary notes of a National Security Council meeting

Attachment 12 - August 5, 1965 memorandum to President Johnson from National Security Adviser McGeorge Bundy

Attachment 13 - August 5, 1965 Intelligence Information Cable to President Johnson from the CIA

Attachment 14 - August 9, 1965 memorandum to President Johnson from Special Counsel Harry C. McPherson, Jr.

Attachment 15 - August 7, 1965 memorandum to the Secretary of Defense from the Joint Chiefs of Staff, signed by Chairman Earle Wheeler

Attachment 16 - March 29, 1968 Central Intelligence Bulletin ("CIB"); April 3, 1968 CIB; August 9, 1965 CIB

Attachment 17 - Virtual Vietnam Archive Finding Aid

Attachment 18 - Excerpts from John Prados's book "The White House Tapes: Eavesdropping on the President" (The New Press, 2003)

Attachment 19 - August 6, 1965 Daily Diary of President Johnson

Attachment 20 - April 2, 1965 memorandum to President Johnson from CIA Director John McCone

Attachment 21 - April 1965 letter to President Johnson from CIA Director John McCone, and attachments, including: April 2, 1965 memorandum from McCone to the Secretary of State, the Secretary of Defense and the Special Assistant to the President, and, February 18, 1965 Special National Security Estimate

Attachment 22 - April 30, 1965 CIA Office of National Estimates Report

Attachment 23 - July 1, 1965 memorandum to President Johnson from Secretary Robert McNamara

Attachment 24 - Excerpts from William Conrad Gibbons' "The U.S. Government and the Vietnam War: Executive and Legislative Roles and the Relationships"

Attachment 25 - Excerpts from Ellsworth Bunker's "The Bunker Papers: Reports to the President from Vietnam, 1967-1973"

Attachment 26 - Excerpts from Professor Jeffrey Kimball's "The Vietnam War Files"

Attachment 27 - Excerpts of published and previously classified tapes of General Creighton W. Abrams, published by Texas Tech University Press

Declaration of Thomas Blanton, Director, National Security Archive, 29 April 2005

Attachment 1 - Excerpts from March 2000 National Archives and Records Administration report, titled, "Records Management in the Central Intelligence Agency"

Attachment 2 - "CIA Today" available athttp://www.cia.gov/cia/publications/cia_today/ciatoday_03.shtml

Attachment 3 - Excerpts from a 1996 study published by the CIA's Center for the Study of Intelligence, written by John L. Helgerson, entitled "Getting to Know the President: CIA Briefings of Presidential Candidates, 1952-1992"

Attachment 4 - April 1, 1968 President's Daily Brief ("PDB")

Attachment 5 - August 7, 1968 PDB

Attachment 6 - June 8, 1967 PDB

Attachment 7 - June 9, 1967 PDB

Attachment 8 - June 7, 1967 PDB

Attachment 9 - June 6, 1967 PDB

Attachment 10 - June 5, 1967 PDB

Attachment 11 - May 27, 1967 PDB

Attachment 12 - May 16, 1967 PDB

Attachment 13 - May 13, 1967 PDB

Attachment 14 - Excerpts from U.S. State Department's series on Foreign Relations of the United States 1964-1968, Volume XIX, Arab-Israeli Crisis and War, 1967.

Attachment 15 - May 29, 1967 PDB

Attachment 16 - April 25, 1967 PDB

Attachment 17 - September 7, 1968 "Special Daily Report on North Vietnam for the President's Eyes Only"

Attachment 18 - January 16, 1967 PDB

Attachment 19 - November 5, 1966 PDB

Attachment 20 - December 20, 1967 PDB

Attachment 21 - Excerpts from December 4, 1998 PDB and August 6, 2001 PDB, published in report of National Commission on Terrorist Attacks Upon the United States

Attachment 22 - Excerpts from Former Director of Central Intelligence Rober M. Gates' "From the Shadows: The Ultimate Insider's Story of Five Presidents and How They Won the Cold War," which includes quotes from September 2, 1983 PDB and August 17, 1991 PDB

Attachment 23 - Excerpts from Bob Woodward's "Bush at War," which quotes September 12, 2001 PDB

Attachment 24 - February 15, 1962 President's Intelligence Checklist ("PICL"); October 15, 1962 PICL; October 16, 1962 PICL; October 17, 1962 PICL, and; October 18, 1962 PICL

Attachment 25 - April 11, 2004 article by John Diamond, published in USA Today, titled Few PDBs Declassified for Public

Attachment 26 - December 20, 1991 report to the Director of Central Intelligence from the Task Force on Greater CIA Openness

Attachment 27 - Report of the U.S. State Department Historical Advisory Committee on Diplomatic Documentation for January 1 - December 31, 2002

Attachment 28 - Report of the U.S. State Department Historical Advisory Committee on Diplomatic Documentation for January 1 - December 31, 2002

Attachment 29 - May 16, 1967 CIB

Attachment 30 - April 1, 1968 CIB

Attachment 31 - August 7, 1965 CIB

Attachment 32 - August 6, 1965 CIB

Attachment 33 - April 2, 1968 CIB

Attachment 34 - August 6, 1965 Afternoon Summary

Attachment 35 - April 2, 1968 Afternoon Summary

Attachment 36 - February 13, 1969 and August 22, 1969 Daily Morning Briefings to President Richard M. Nixon from Secretary of State Henry Kissinger

Attachment 37 - Excerpts from "A World Transformed" by President George H. W. Bush and former National Security Adviser Brent Scowcroft

Attachment 38 - May 16, 2002 Internal CIA memorandum to CIA Acting Information and Privacy Coordinator Alan W. Tate from Kurt A. Perlman

Attachment 39 - May 24, 2002 Washington Post article by Walter Pincus

Government Reply to in Opposition to Plaintiff's Cross-Motion

CIA Reply in Support of Its Motion for Summary Judgment, and Opposition to Plaintiff's Cross-Motion for Summary Judgment, May 11, 2005

CIA Response to Plaintiff Larry Berman's Statement of Undisputed Material Facts, May 11, 2005

CIA Reply in Support of Its Statement of Undisputed Facts, May 11, 2005

Supplemental Declaration of Terry N. Buroker, Directorate of Intelligence Information Review Officer, Central Intelligence Agency, May 11, 2005

Plaintiff's Reply in Support of Cross-Motion

Plaintiff Larry Berman's Reply in Support of Cross-Motion for Summary Judgment, 18 May 2005

Judge's Opinion and Order, 11 July 2005

Amicus Brief, 26 January 2006

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Declassified CIA Documents on Presidential Briefings

Chief, D/Pub [R. Jack Smith] to AD/ORE [Theodore Babbitt], "Contents of the CIA Daily Summary," 21 September 1950. [Source: Michael Warner, ed., The CIA under Harry Truman (Washington, D.C.: CIA Center for the Study of Intelligence, 1994), pp. 337-338.]

G. Fred Albrecht, A History of the Central Intelligence Bulletin, 12 May 1967, 100 pp., TOP SECRET TRINE. [Source: CIA Freedom of Information Act release to Dr. William Burr]

John L. Helgerson, Getting To Know the President: CIA Briefings of Presidential Candidates, 1952-1992 (Washington, D.C.: CIA Center for the Study of Intelligence, 1996, 165 pp.) also athttp://www.odci.gov/csi/books/briefing/

Richard J. Kerr and Peter Dixon Davis, "Mornings in Pacific Palisades: Ronald Reagan and the President's Daily Brief," Studies in Intelligence, Winter 1998-1999 Unclassified Version (CIA Center for the Study of Intelligence), pp. 51-56, also at http://www.cia.gov/csi/studies/winter98-99/art04.html