CIA Argues To Court, We Can Leak Whatever We Want To Leak, and Hide Whatever We Want To Hide

The CIA is now essentially declaring that it has the legal right to leak classified info to friendly reporters, while also blocking the release of that information to others under the Freedom of Information Act.

From FAS:

FOIA requester Adam Johnson had obtained CIA emails sent to various members of the press including some that were redacted as classified. How, he wondered, could the CIA give information to uncleared reporters -- in this case Siobhan Gorman (then) of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times -- and yet refuse to give it to him? 

In an effort to discover the secret messages, he filed a FOIA lawsuit. His question is a good one, said Chief Judge Colleen MacMahon of the Southern District of New York in a court order last month. 

"The issue is whether the CIA waived its right to rely on otherwise applicable exemptions to FOIA disclosure by admittedly disclosing information selectively to one particular reporter [or three]." 

"In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private," she wrote. "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?" 

Judge MacMahon therefore ordered CIA to prepare a more rigorous justification of its legal position. It was filed by the government yesterday. 

CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from "unauthorized" disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said.