Earlier this week, the CIA filed a brief in federal court arguing that it can selectively release classified information to trusted journalists while withholding the same information from other citizens who request it through open records laws. As Will Racke reports for the Daily Caller, the agency claimed that limited disclosures to reporters do not waive national security exemptions to Freedom of Information Act (FOIA) requests.
The case stems from lawsuit against the CIA by an independent journalist who had used FOIA to obtain emails between the agency’s public information office and selected reporters from the Wall Street Journal, the Washington Post, and The New York Times. The emails the CIA provided were redacted. Thus, the independent journalist was not allowed to see the same information that had been given to reporters who lacked security clearance.
The journalist argued that once the CIA has selectively disclosed information to uncleared reporters, it cannot claim the same information is protected by a FOIA exemption.
So far, Chief Judge Colleen McMahon of the Southern District of New York has sided with the independent journalist. In rejecting the CIA’s initial arguments, she wrote:
In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private. There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including ‘trusted reporters,’ for any purpose, including the protection of CIA sources and methods that might otherwise be outed.
The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had?
I think the judge is correct on the law.
Though not relevant to the legal issue, it may be worth noting that the “trusted reporter” concept has evolved in ways that undercut a policy argument in favor of selectively releasing classified information. There may have been a time when “trusted reporter” meant a reporter who could be relied on not to use the information in a way that harmed national security.
John Scali is the classic case. During the Cuban missile crisis, he carried messages back and forth between the Soviets and the Americans, helping to defuse a situation that might have led to nuclear war.
These days, a trusted reporter is apt to be one who can be relied on to use the information in ways that advance the agenda of the CIA or a particular individual within the agency. In a sense, the trusted reporter is a prostitute.
If the CIA loses in this case, the unsavory practice of providing classified information only to sources willing to do the agency’s bidding will be dealt a setback.