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The CIA's Bay of Pigs Documents Can Be Kept Secret Indefinitely, Court Rules

The American public might never get to know the entire history of the events that occurred during the failed Bay of Pigs invasion, not at least until the Central Intelligence Agency is finished revising the draft copy of its history, which seems unlikely to happen anytime soon.

Earlier this week, the U.S. Court of Appeals for the D.C. Circuit ruled that the CIA can withhold a 30-year-old volume of the invasion's draft "official history" from the public under the "deliberative process" privilege of the Freedom of Information Act, even though most of the volumes have already been released to the public.

See also: CIA Withholds Bay of Pigs Documents, Claims Release Would "Confuse the Public"

"The D.C. Circuit's decision throws a burqa over the bureaucracy," said Tom Blanton, director of the National Security Archive, the plaintiff in the case.

In 2011, Blanton's D.C.-based nonprofit sued the agency to release the five-volume history on the operation that CIA staff historian Jack Pfeiffer started in 1973. However, the agency refused to release the draft of Volume V, which it claimed was protected under the deliberative process privilege. The original public records request by the National Security Archive was filed in 2005.

The reasoning, according to the court's decision: "A draft of an agency's official history is predecisional and deliberative, and thus protected under the deliberative process privilege."

However, there might never be a final draft copy, according to Judge Brett Kavanaugh, who wrote for the 2-1 majority. "There may be no final agency document because a draft died on the vine," Kavanaugh wrote in the decision. "But the draft is still a draft and thus still predecisional and deliberative."

U.S. District Judge Gladys Kessler agreed based on similar reasoning in 2012, when the CIA argued the release of the drafts might "confuse the public."

"Presidents only get 12 years after they leave office to withhold their deliberations, and the Federal Reserve Board releases its verbatim transcripts after five years," Blanton said. "But here the D.C. Circuit has given the CIA's historical office immortality for its drafts, because, as the CIA argues, those drafts might 'confuse the public.'"

Ironically, it was Pfeiffer himself who sued the agency in the 1980s to try to declassify his own work. The history argues that the CIA case officers who organized the operation -- despite recruiting and training thousands of counterrevolutionaries across South Florida -- aren't to blame for its failure.

Send tips to author David Minsky at [email protected].

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David Minsky is a U.S. Navy veteran and Tulane graduate who has experience reporting on stories from California, South Florida, and the Deep South. He has also won some journalism awards. Email or tweet David with story tips and ideas.
Contact: David Minsky