Thursday, September 17, 2020

The Deiberative Clause


The Supreme Court will not discuss the assassination of President Kennedy or any of the information presented here, but instead will focus strictly on the AARC’s request for the internal records that indicate what the CIA did in its search for the requested records on the “detailed study” of the Hitler plot that was to be used against Castro.

After reading the Higgins memo document the lead attorney on the case Dan Alcorn and Jim Lesar, head of the Assassinations Archives and Research Center (AARC) filed an FOIA request for that "detailed study." But in response the CIA claimed it could find no records of that study whatsoever, or any references at all to the July 20, 1944 plot to kill Hitler among its records. 

Incredulous, the lawyers requested any internal memos, phone call records and emails that the CIA generated during its search, that would indicate the extent of their efforts, but they too were denied, withheld under the “deliberative” clause.

FOIA Exemption Five covers internal communications in the Executive Branch that are legally "privileged." The most commonly encountered privilege under Exemption 5 is the "deliberative" privilege, which covers "predecisional" materials written as part of the decision making process in federal agencies.

The deliberative clause that permits agencies to withhold records is one of the most controversial, as it is not a matter of national security at stake, but the interpersonal communications among the administrators and bureaucrats, some of whom could be embarrassed by their “deliberations.”

It was the deliberative exemption that Congress used to exempt itself from the Freedom of Information Act (FOIA), as it said that their communications with constituents and donors must remain confidential, and the deliberative clause is widely used by government agencies to withhold records.

It is the deliberative exempion in regards to another case that the Supreme Court is considering and to which the AARC vs. CIA case has been assigned because of the similarities.

On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit ______________PETITION FOR WRIT OF CERTIORARI ____________________

This Court granted of a writ of certiorari on February 28, 2020 in case # 19-547, Fish and Wildlife Serv., et al. v. Sierra Club, Inc. That case presents an issue closely similar to one in Petitioner’s case involving the deliberate process privilege under Exemption 5 of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(5). The results of the two cases arising from different circuits are in conflict. The Fish and Wildlife Service case presents an issue of compelled release under the FOIA of draft documents for which the government asserts a deliberative process privilege under FOIA Exemption 5. Petitioner AARC’s case involves the Central Intelligence Agency’s successful assertion of the Exemption 5 deliberative process privilege for information reflecting CIA’s search activities in responding to Petitioner’s FOIA request. Petitioner’s FOIA request relates to a matter of public importance- new information about the circumstances of the assassination of President Kennedy.

According to the AARC web site: “The United States Supreme Court has officially requested that the Department of Justice file a response to the AARC’s “Hitler plot” lawsuit. The Central Intelligence Agency (CIA) has waived its right to file a brief opposing the AARC’s petition. Now at least one member of the Supreme Court has requested that the Solicitor General, acting on behalf of the Department of Justice, explain why the CIA has not set forth its position on the facts and legal issues raised by the AARC’s petition. The ultimate goal in a petition for a writ of certiorari is to get the United States Supreme Court to issue the writ. The issuance of this week’s (16 July, 2020) request by the Supreme Court places the AARC just one step away from achieving this goal. The challenge of this effort remains a daunting and problematic process, but at least the AARC has reached the very threshold of success.  The AARC is encouraged by this development and remains optimistic about reaching the top of this nation’s judicial pyramid. The AARC will have the right to reply to the Solicitor General’s contentions.”

The Fish and Wildlife case will be deliberated on in October, and the government will respond to the AARC vs. CIA “Hitler Plot” case in mid-October. Stay tuned. 

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