Secrecy, being an instrument of conspiracy, ought never to be the system of regular government.
—Jeremy Bentham, nineteenth-century philosopher
The federal government censored, withheld or said it couldn’t find records sought by citizens, journalists and others more often last year than at any point in the past decade.
—News article about the state of the Freedom of Information Act from the Associated Press, March 12, 2018
IT FELT INEVITABLE: the Trump presidency was barely a half-year old, and I was suing the administration over a tweet.
It began in the early evening of July 24, 2017. That was when the president tweeted: “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.…” The tweet was intriguing in many ways. One was the timing: It came at 7:23 p.m. It was not part of one of those early morning presidential tweet storms. Then there was the reference to the “Amazon Washington Post.” The Washington Post has not changed its name, and it is not owned by Amazon. It is owned personally by Jeff Bezos, who also happens to be the founder of Amazon and the richest man in the world. But there was more: the payments to Syrian rebels mentioned by the president? That CIA program was a classified national security secret. So was the president’s decision to end the payments. Nobody without a security clearance was supposed to know anything about it. The president, armed with his cell phone, had just leaked national security secrets to his tens of millions of Twitter followers and everyone else in the world.
The tweet had come in response to a Washington Post story five days earlier in which The Post reported—based on confidential sources—that CIA director Mike Pompeo and National Security Advisor H. R. McMaster had recommended that the covert program be shut down, and the president agreed. The Post reported that the decision “will be welcomed by Moscow” and—not to put too fine a point on it—quoted an anonymous government official as saying that “Putin won in Syria.” The CIA had reportedly spent over a billion dollars training and arming Syrian rebels.
With the tweet still fresh, Times reporter Matt Rosenberg quickly shot off a Freedom of Information Act request to the CIA, asking for all documents about the funding of the rebels and the president’s decision to cut off the payments. Now that the president had confirmed the existence of the program and his decision to stop the funding, there was no secret left to protect, and, as we saw it, the CIA had to provide documents about the program under FOIA. Spoiler alert: the CIA didn’t exactly see it that way.
From the start, the idea behind FOIA was simple: Average-Joe citizen writes to federal agency and asks for documents. Agency sends Average-Joe citizen documents. Democracy thrives. Maybe Lyndon Johnson actually believed it would happen that way when he signed FOIA into law in 1966. It was the Fourth of July, a good day to be signing a bill that had “freedom” in its name. Johnson was no particular fan of the legislation, but members of Congress loved the idea—once they exempted themselves so they would never have to turn over a piece of paper under the new law—and Johnson caved after some exemptions were written into the law to protect a few things that needed to remain secret. It was a big deal in its way. Up to that point, as scholar Michael Schudson has documented, the government had been run on the philosophy that the American people, including members of Congress, were out of luck if they wanted to get information from a federal agency unless the agency just decided to give it up, which an agency was not all that prone to do. There was no right to know; there was a right to know nothing. FOIA was meant to change all of that.
But it wasn’t long before Ralph Nader, consumer advocate and regular bearer of bad news, rode onto the scene to let people know just how the new law was working out. He gave the climax away in the title of the article he wrote: “The Freedom from Information Act.” He had sent a bunch of young associates out to test the new law. Federal bureaucrats may get a bad rap for lacking a certain creativity, but that was not the case when it came to figuring out ways to cripple the brand-spanking-new Freedom of Information Act. Nader’s people found that agencies were resorting to “primitive responses”—losing documents, lying about the existence of records, showing favoritism to corporate requesters. And in just a matter of months, the agencies had become masters at invoking FOIA’s exemptions to make sure that the public rarely laid eyes on the really interesting documents. The bureaucrats also showed an inherent knack for dragging their feet. It was a dismal picture that Nader painted.
Fifty years later, if the FOIA system had changed, it had changed mostly for the worse. Absurd delays? Check. Runaway exemptions used by agencies to keep documents secret? Check. Pages so redacted they looked like abstract art from the late Soviet era? Check. True, the process sometimes worked the way Johnson envisioned at that Fourth of July signing ceremony. Documents requested; documents obtained. But here was how the FOIA story often unfolded. In 2002, The Times sent a FOIA request to the Department of Labor asking the agency to identify the most dangerous places to work in the United States. The department had published a list of 13,000 companies that had excessive rates of injuries and deaths in the workplace, a veritable honor roll of the worst places to work in America. But the department refused to say who was number 1 and who was number 12,999. If you happened to be looking for a factory job, it probably mattered to you whether you were signing on to work at the top place in the country to be dismembered or killed or just showing up at one of the modestly lethal factories where you still had a decent chance of making it through the week with all your fingers. The Labor Department didn’t exactly deny our FOIA request. It responded that it would need 15 work years—that is, one person working 30,290 hours—before department officials could get back to us with a complete response and let us know which part, if any, of the information could be released. As I read the department’s letter laying all this out, I tried to envision that lonely government worker reporting for work day after day for a decade and a half doing nothing more than laboring over our request. Week after dreary week, year after dreary year, there he would be, trudging home each evening after putting in another eight of his 30,290 hours, to regale his spouse over dinner about his huge career working on The New York Times’s FOIA request.
I sensed that our reporters probably didn’t want to wait quite that long, crossing off the days on a big calendar for 15 years, like an inmate serving a prison term. I also knew something else: FOIA, as written, required a response in 20 days. We sued.
Like me, the judge, Shira Scheindlin, wanted to know how a 20-day response deadline set by Congress and signed into law by the president could be refashioned by an agency into a 15-year slow walk. The Labor Department was not helped when its lawyer tried to tell the judge that the lawsuit had to be dismissed because—here comes the genius part—The Times’s request had never been denied. See, the Department of Labor was actually in the midst of responding and, once we got the response—in 15 years—if we were still dissatisfied (and alive), then we could come to court and complain. Judge Scheindlin ordered the Labor Department to get us the information. What happened next was no surprise in the upside-down world that is FOIA: The department didn’t really need 15 years to handle our request. It was closer to 15 days once a federal judge told Labor to get moving.
That was the beginning of my career as a FOIA litigator at The Times. Most news organizations stopped doing FOIA litigation in the early 2000s. There was no budget for it, the industry was being racked by the loss of advertising revenues, and FOIA had become synonymous with delay and frustration. It didn’t seem worth the bother to most news organizations. The Times decided to go the opposite direction. With libel litigation on the decline and secrecy becoming epidemic after 9/11, it made sense for us to switch focus, to start going to court and trying to get judges to join us in the fight against the excesses of secrecy. It was often going to be frustrating, and we were going to lose a lot, but I thought about FOIA lawsuits the way public defenders often think about criminal defense work. In the criminal justice system, the enormous power of the government is being used to prosecute and imprison an individual. Shouldn’t someone be standing up in court and making sure that the law was being followed, that individual rights were being protected? We weren’t doing anything as consequential as defending the accused, but I saw a parallel. If every time an agency turned down a request for documents, the citizen-requester just shrugged and walked away, there was no check on the government’s power to be the final arbiter of what was secret (a lot) and what was public (not enough).
Over the eight years of the Obama administration, I filed more than 30 FOIA suits on behalf of Times journalists. In that same period, our nearest competitors in the news media were Fox News with five suits and the Associated Press with three. We kept going once the new administration came into office when our requests were either denied or ignored. We sued to get the visitors’ log from the Trump transition office, we sued to get the daily calendar of the EPA administrator, we sued for access to the memos written by James Comey about his meetings with the president, we sued for documents showing whether there had been changes in how the president’s daily security briefing was being prepared, we sued for information about the decision to reduce the size of Bears Ears National Monument, we sued for the legal memos prepared by the Department of Justice explaining how the nepotism rules applied to Jared Kushner and Ivanka Trump, we sued to find out whether the White House was trying to influence decisions about high-speed trains that went near Trump properties—and we sued over that Syrian-rebel tweet.
When the CIA failed to respond to Matt Rosenberg’s FOIA request about the Syrian program, we drafted a complaint and went into court in New York. While the case moved forward, the CIA did finally get around to sending a response. The agency said in a letter that it could neither confirm nor deny whether it had documents. It was what is known in FOIA-land as a “Glomar response,” when an agency takes the legal position that even acknowledging the existence or nonexistence of documents would itself reveal a national security secret. In the pretzel logic that is FOIA, agencies give Glomar responses even when there are no documents, believing that in the parallel universe in which they exist, the fact that a program doesn’t exist is a secret, too. A couple of years ago, an unwell individual named Michael Taylor sued the National Security Agency in Georgia wanting to get all documents showing how the NSA had planted electrode monitors in his brain. Now, you might think that even at a hard-ass agency like the NSA, some soft-hearted soul might have drafted a response to Mr. Taylor saying in so many words, “Dear Mr. Taylor, we don’t have any documents pertaining to those electrodes in your brain because, frankly, there are no electrodes in your brain, and have you considered getting some competent mental health care?” You might think that, and you would be wrong. The NSA responded by telling Mr. Taylor they could neither confirm nor deny the existence of documents about those electrodes in his head. That’s about as cruel as your federal government gets.
The attorney assigned to defend the CIA in our case got in touch with me and my associate, Christina Koningisor. He was pleasant but forthright. He had considered our papers, and we had one problem: we didn’t understand President Trump’s syntax.
I am usually pretty skeptical of what opposing counsel has to say, but this time it was hard to argue. Not understand the president’s syntax? That made Christina and me not so very different from hundreds of millions of English-speaking people around the globe. But what did that have to do with our lawsuit? The attorney explained that we were misreading the tweet, that the tweet actually denied that there was a Syrian arms program. That was plain from the text of the tweet itself. The president said The Post had “fabricated the facts” about the president’s decision to end the program. That, the attorney assured us, meant that the president was neither denying nor confirming that the program existed or that it had been ended or any other fact in the real, nonfabricated world. The president was just engaged in—I don’t know—a little freestyle criticism of journalism.
Christina and I were puzzled. Between the two of us we had better-than-average reading-comprehension skills. So—seriously—when the president described the payments to the rebels as “massive, dangerous, and wasteful,” he was talking about a program that didn’t actually exist? It was a massive, dangerous, wasteful—and nonexistent—program? I don’t have all that much experience with nonexistent things, but when I do, they tend not to be massive, dangerous, and wasteful or anything else—just not real.
We decided to take another shot at explaining ourselves: the president’s complaint that The Post had engaged in fabrication was not aimed at the parts of the story that revealed the funding program and the decision to end it, but at the incendiary theme of The Post’s story—that Trump’s decision was made to suck up to the Russians, who were supporting the Syrian government in the fight with the rebels. In our minds, the president—whether he knew it or not—had declassified the program when he hit the send button. Maybe the CIA had some other legal grounds on which to withhold the documents, but the agency could not seriously claim that the program was a national security secret and hand us a Glomar response when the president was complaining about how massive and expensive and dangerous the program was. Could it?
It could. It did. So a case based on 140 syntactically challenged characters was going to have to be decided by a federal judge.
FOIA is a dull, dull knife for cutting through all the unnecessary secrecy that is invoked daily in the name of national security. Technically, the government has the burden of proof. It is supposed to show the court that the secrecy is necessary. In the real world, few judges want to second-guess the CIA or NSA or any other intelligence agency about what needs to be secret and what doesn’t. It is disheartening to see the judiciary surrender its power to the executive branch. Only judges are in a position to be a check on the executive branch if the intelligence agencies are cynically misusing the law to keep the American public in the dark. But it isn’t always cynical, I know. Sometimes the agencies just seem indifferent to the public. Sometimes they seem incompetent. It doesn’t really matter what the root cause is. Information that the public should have is never going to see the light of day.
If you spent enough time working the FOIA beat, there was a certain risk you assumed—the risk that you would get so caught up in playing the government’s secrecy game that you lost sight of just how twisted it was. You came to accept that you would be litigating cases in which you never got to see the government’s factual arguments, which themselves were treated as national security secrets. They were presented to the court in secret filings. That meant you lost lawsuits without ever knowing why. In a FOIA case we had before the Second Circuit Court of Appeals, the government’s lawyers were permitted to meet privately with the court and make their case for an hour before the court heard from us. We later learned that the government lawyers had brought to the secret session a mystery man who refused to identify himself fully to the court. The judges, in a much-later opinion, said they were unhappy about that and warned the government about doing it again, but the secret session had gone forward. It was apparently lost on the government that in democracies we don’t have secret minders monitoring our judges.
Truth often floated away from the courtrooms where FOIA cases were heard. The government’s lawyers would deny the existence of facts that had been widely reported in The Times and elsewhere. Until those facts were officially acknowledged by the government, they did not exist, as far as the government was concerned. In one of our cases, Judge Colleen McMahon described the government’s position as something straight out of Alice in Wonderland. The government lawyers were doing what they typically did in such cases: insisting on declaring secret what wasn’t secret and shouldn’t be secret but pretending it was secret and asking us and the court to go along for the ride. The sad part was that the law more often than not let the government do exactly that.
Secrecy breeds absurdity. That is never truer than in litigating against those masters of secrecy run amok, the CIA. It’s a bizarre dance. We sued the CIA a few years ago for documents about injuries sustained by U.S. troops as they cleared munitions dumps left behind by the Saddam Hussein government in Iraq. Our reporter Chris Chivers and others were doing a series of stories about how U.S. troops were left unprepared and unprotected as they stumbled upon and detonated old chemical weapons after the invasion of Iraq. The Pentagon then decided to cover up the injuries for political reasons. To assist Chris’s efforts, we filed a FOIA request for three documents. The CIA, on cue, said it could neither confirm nor deny that the documents even existed. That was a little awkward. We had asked for the three documents by their actual titles. And by date. (It makes a difference to have reporters with good sources.) So off we went to court, with me writing briefs premised on the idea that there was no question that the documents existed and the CIA responding with briefs that pretended it had no idea what I was talking about. The judge was not impressed by the CIA’s double-talk, and in the end we obtained documents about the program. The CIA also had to pay us $51,000 to compensate for the time I had spent fighting off the agency’s undue secrecy.
I also declined to play along with the government and pretend that two dead men did not have names. They did. Their names were Gul Rahman and Manadel al-Jamadi. They died while being detained by agents of the U.S. government, one in Iraq, the other in Afghanistan. But as we litigated a case with the Justice Department for documents about the torture of detainees, the government’s lawyers refused to mention the names. They claimed it was a matter of protecting the men’s privacy. We thought it was a matter of dehumanizing two victims. It was also nonsensical. As our case was grinding its way through the courts, the CIA inspector general released a report about the Rahman case. It showed that Rahman, an Afghan suspected of ties to terrorist groups, was alternately defiant and fatigued, hurling death threats at his guards and throwing his food and defecation bucket at them. He was shackled using a technique known as “short chaining” that forced him to remain seated on a cold concrete floor while naked below the waist. Rahman was found dead from hypothermia the next day. That was all in the CIA report. But, in our case, the DOJ had been telling us and the court that nothing could be disclosed about Rahman, not even his name.
Maybe the names should not have been such a big deal to me, but the government’s refusal to say the names out loud spoke to so much of what was wrong in the culture of secrecy. That particular FOIA case was an important one. Our reporter Charlie Savage was seeking the release of the secret Justice Department memos that had recommended that no CIA operative be charged with a crime for abusing detainees in the aftermath of 9/11. Justice had appointed John Durham, a veteran prosecutor, to look into 101 reports of possible torture, including the cases of the two men who had died in custody. Maybe Durham had made the right legal call, maybe no one should have been held legally responsible, but why were the American people not given a chance to see the memos and decide for themselves? That seemed like Democracy 101, except to the government. The Justice Department dug in and said that not a word from the memos could be released, even as the DOJ’s top officials, including Attorney General Eric Holder, praised the thorough and compelling legal work that Durham had done.
A few days after Holder left office—and therefore was now powerless to do anything about secrecy—he told a gathering of media lawyers and journalists that he hoped the Durham memos would someday be released because the public would benefit from seeing Durham’s careful work. That is how it goes in FOIA-land: everyone is on your side except when it matters. Well, that wasn’t exactly true. Judge Paul Oetken of the Southern District of New York, after a briefing that stretched over two years, ultimately ordered that five of the memos be released in redacted form to The Times. The government appealed. The wheels of FOIA turned some more, slowly.
Not surprisingly, our standoffs over secrecy with the government occasionally played out in shades of surrealism. In the summer of 2015, the government as part of a FOIA suit had agreed to turn over certain documents to us about the NSA’s massive operation to collect data about Americans’ phone calls. A batch of those documents came in by email late one afternoon. I immediately forwarded them to Charlie Savage, the reporter behind the FOIA request—standard operating procedure for us to avoid getting scooped if the agency is delivering the same documents to others. Charlie called me at home that night and wanted to know whether I had noticed, just by chance, that in the midst of the documents were pages that the government had not intended to give us. They were still marked classified. They showed some never-disclosed and important details about the NSA program, and Charlie wanted to report on them. I knew that as soon as Charlie called the NSA for comment the next morning, my day was going to take a serious turn for the worse.
By 9:30 that morning, the government’s lawyers were calling me and insisting we return the classified pages. I said I wouldn’t do that unless a federal judge told The Times it had to. If the First Amendment protected the news media when documents were leaked—think the Pentagon Papers, WikiLeaks, Snowden—how could there be any obligation to return these documents, and not report on them, when they were given to us officially and voluntarily by the government itself? Was I supposed to tell our reporters to pretend they had never seen the words on those secret pages? I felt bad for the government lawyers. They were good attorneys and good guys, and I knew someone was in deep, deep trouble somewhere on the government side, but I couldn’t be part of hiding the truth, at least not without getting a chance to first make my case to a federal judge. Then one of the government lawyers played his trump card: “When this happened with the ACLU, they gave the documents back,” he said.
Seriously? The ACLU? Those ultimate outsiders, forever standing up for truth, at constant war with the government—that ACLU? Was he really trying to tell me that the ACLU lawyers had backed down and politely returned to the government classified documents that were mistakenly released to them voluntarily under FOIA?
I was immediately on the phone to my friends downtown at ACLU headquarters. It was true, sort of, they said. A few years earlier, the government had inadvertently produced some classified materials as part of a FOIA case. The documents hadn’t been all that interesting, and the ACLU decided it didn’t make much sense strategically to get into a huge legal fight over them. They agreed to keep the documents confidential until the judge in the case could rule on whether the ACLU had a right to have them. The judge ruled in favor of the government and the documents were officially secret again.
Nothing about that phone call was making me feel good. The ACLU had voluntarily stood down. A federal judge had ruled that the First Amendment did not apply. And 15 floors below me at The New York Times, editors were moving ahead with Charlie’s story. I consulted with some First Amendment lawyers, looking to get bucked up in my position that, by God, the documents were ours. They were not in a bucking-up sort of mood apparently. Maybe the First Amendment applied in leak cases, but these documents were being produced as part of a FOIA lawsuit. Maybe I as an attorney (and therefore an officer of the court) had a duty to notify the court of what had happened and to maintain the status quo until the judge could decide what to do. I didn’t relish the thought of having to go down to the newsroom and tell the editors that, on second thought, maybe we couldn’t do the story after all, maybe the First Amendment didn’t stretch that far. I knew they would think the First Amendment easily stretched that far and even further. In fact, in most journalists’ minds, it was pretty close to boundless.
The government lawyers called me again. They were waiting for authorization from their superiors to go to court. I should stand by. I told them I would.
And that is when things got even stranger. Charlie and his editors were already reaching out to officials at the NSA, seeking comment. I was certain that the NSA would not be happy to know we had the secret material and would inevitably ask us not to publish. The NSA decided not to comment. As often happens with national security stories, our editors considered whether to refrain from publishing or to withhold some information. In the end, they decided to go ahead with a story disclosing new details about the NSA’s ties to the phone companies. By 5:00, as I continued to wait for word from the government’s attorneys, the story had gone up on our website. The lawyers called a few minutes later just to update me. They were still waiting for authorization to go to court. I suggested they take a quick read of nytimes.com. It seemed a little late for a huddle with a judge, maybe a lot late. They told me they’d call back.
We never saw a judge. Later that week I got a letter from the government lawyers asking for the documents back and citing cases that supported the government’s position. I wrote a letter in response citing the First Amendment, the Pentagon Papers, and other decisions. Charlie still has the classified documents.
All of us who do FOIA cases are, at heart, hope junkies, believing that the next case, or maybe the one after that one, will bring us back to Lyndon Johnson’s promised land. We keep going because we do sometimes surprise even ourselves and win. In 2011, a CIA drone attack killed the radical cleric Anwar al-Awlaki, a jihadist who was living in Yemen. A second drone strike killed his son. They were both American citizens. Our reporters, Charlie Savage and Scott Shane, knew that the Department of Justice had given legal clearance for the attacks—in essence, found that it was legal to kill an American citizen away from the field of battle without traditional due process. Scott and Charlie filed FOIA requests and got nowhere. They were told that even the legal analysis was classified. It struck us as absurd, no matter what the memos said. Why did national security require the government to keep the American people in the dark about the legal basis for the extraordinary use of U.S. force against individual citizens?
I called a lawyer with expertise in national security and asked what he thought our chances were of winning a lawsuit. “Not completely hopeless,” he said. In many of our cases, that was about as encouraging as things got. We sued, and the ACLU filed a similar suit not long after. A year later, Judge McMahon released her Alice in Wonderland decision, which spent pages hammering away at the government’s dubious position that it was legally free to kill Americans abroad without a hint of due process. But in the end, she said, there was nothing she could do about our FOIA requests. The government had met its burden for imposing secrecy.
We pressed on. On October 1, 2013, the Second Circuit Court of Appeals took up the two cases. The rest of the government had closed at noon because Congress had been unable to pass a budget. The courtroom was packed with court employees who had been rendered unemployed a couple hours earlier and had nothing better to do that afternoon than watch The New York Times and the ACLU get slapped around by the government and the judges. I sat at the counsel table with my associate Victoria Baranetsky and the team from the ACLU, waiting for the court to convene. Jameel Jaffer, the lead lawyer for the ACLU, leaned over. “Could you not do that argument about the ACLU today?” he asked. I knew what he was talking about. The ACLU had been smart and generous allies, but in every brief we had done in the case, we had included a few sentences pointing out how the ACLU was making a sweeping request for all sorts of documents while The Times, that picture of reasonableness and restraint, was seeking only the legal memos. We were bad at being subtle: the clear message to the court was that the ACLU had gone ape-mad nuts, and the court shouldn’t confuse our perfectly rational and respectful request with theirs. It was the worst sort of legal strategy: disingenuous and not working. I pretended to cross out the first two pages of my argument outline.
With no other cases on the docket, the court kept us there for the better part of two hours. We pinned much of our argument on the repeated assurances the Obama administration had made in public forums that the strikes had been vetted by the Justice Department and were found to be legal. We believed the government could not have it both ways: bragging to the public about the savvy legal analysis and dropping hints about the legal justification but refusing to level with the American people about what the legal memos actually said. While the case was pending, DOJ had also released a “white paper” setting out the legal case for permitting drone strikes.
When the court ruled in favor of The Times and the ACLU six months later, the judges not only held that the main legal memo had to be released (with certain details about CIA operations redacted) but took the extraordinary step of releasing the memo as part of the decision. No federal appeals court had ever done that before in a national security case. The court found that the Obama administration’s many public statements about the legal case for targeted killing had crossed a line and waived whatever objections the government may have had to releasing the memo.
As it turned out, the court’s decision in the drone case would be an important component of our argument four years later in the Trump tweet case. Judge Andrew Carter had called the lawyers into the courtroom so they could discuss their respective legal positions. I was able to say, with adequate lawyerly gravitas (but it wasn’t easy), “The government believes we don’t understand the president’s syntax.” The CIA’s lawyer stood his ground, working his way through the syntax puzzle and then denying that anything had been declassified by the tweet. That led to one of those house-of-mirrors moments when Judge Carter asked an obvious question: Why was the program still a secret if it had been discontinued? The CIA’s lawyer had to explain that, because of national security, he couldn’t say whether the program had been ended because he couldn’t say whether the program ever began, and so whether the program had ended or hadn’t ended or existed or never existed at all, he really couldn’t answer the judge’s question. The judge set a schedule for our written briefs.
When the CIA’s brief was filed with the court a few weeks later, it was exactly what we expected: the agency clung to its Glomar response. The existence or nonexistence of the Syrian rebel funding program was a classified secret, and the presidential tweet had not changed that. The CIA’s lawyer was in a tricky position. The government had to acknowledge that the president inherently had the authority to declassify information at any time for any reason—that was a necessary component of a president’s power in the event of a national emergency—but the government was not exactly keen to give a huge thumbs up to the idea of Declassification by Tweet. More discussion of presidential syntax followed. We responded with a brief diving deep into the law surrounding a president’s authority to declassify information (there was, we had to concede, precious little case law on Declassification by Tweet) and we offered up a compelling discussion of how the government had waived its right to invoke secrecy, just the way it had done in the drone case. We giddily worked our way back to the Aspen Security Forum—the one where General Thomas had done his loose-lipped acknowledgment of the rebel arms program. To us, that was further proof that the big CIA secret was no secret. We also provided our own by now well-honed analysis of the president’s syntax.
A few months later, the judge issued his opinion: he was dismissing our case. The government, he said, had shown that the information was still a classified secret. It was disappointing, but not surprising. FOIA cases are rarely easy. We filed our appeal, looking to take our chances in the Second Circuit.
When I think about all that is wrong with FOIA—and what is right about it—I think about Sergio Florez’s case. Sergio is an editor at The Times who was seeking the CIA files about his late father, Dr. Armando Florez. Dr. Florez had been a high-profile Cuban diplomat in the 1960s before defecting to the U.S. He had been ill and died before Sergio could fully find out about his remarkable life—from his role in the Castro government and his time as the chargé d’affaires at the Cuban embassy in Washington to his brave decision to defect in the late 1960s during a visit to Spain. Victoria Baranetsky, our First Amendment fellow, had heard Sergio’s story and convinced me we should start a FOIA case for Sergio pro bono. We sued the CIA for the documents. Forget that 50 years had passed, that spycraft was completely different, that the relationship between Cuba and the United States had evolved and then evolved again. The CIA refused to release anything. It said it could not even disclose whether or not it had any documents about Dr. Florez.
That proved to not be completely accurate. One of our Yale Law student interns went into the CIA’s electronic reading room—a repository of declassified documents online—and promptly found two CIA reports mentioning Dr. Florez. It was an energizing moment for our team—but it was not to last. The district court dismissed our case, finding that the CIA had justified its decision to not say whether other documents existed. National security required it.
Sergio showed up at my office and wanted to know whether we would appeal. I hemmed and hawed as my associate Jeremy Kutner looked on, wondering how big a pushover I was going to be. It was going to be a lot of work, I began, and the Second Circuit Court of Appeals was not likely to reverse the district court. It was FOIA; it was national security. An appeals court was not going to dig into the facts. We’d almost surely lose.
So I told him we would do it. That’s how it works: the client gets to decide even when the lawyers are sentencing themselves to more misery.
Shortly before the case was to be heard by the Second Circuit, one of those small litigation miracles occurred. The FBI, in response to a separate FOIA request, released dozens of pages of formerly classified documents about Sergio’s father. They offered a telling look into his work for the Cubans, his defection, and the government’s initial suspicions that the defection might be the trick of a double agent. When we appeared for oral argument, the appeals court pounded the government’s lawyer with questions about how the CIA’s recalcitrance could possibly be squared with all the disclosures just made by the FBI. The court ruled in our favor, and the CIA ultimately settled with Sergio, giving him a few documents (which he should have received years earlier) and paying our legal fees. The day I argued the case in the Second Circuit, Sergio brought his family to watch. It had been a big deal to him, the child of Cuban immigrants, that in America there could be a case called Sergio Florez v. The Central Intelligence Agency—and the second highest court in the land would hear it. For all the cynicism that got baked into FOIA—the delays, the unnecessary secrecy, the lame excuses that the agencies expected you to believe, the slow drip of justice you were treated to when you finally went to court—there was still something right about a system where you had a chance to stand up to your government in a court of law, whether you were The New York Times or just a guy trying to find out about his father. Sergio’s wife told me he had worn his father’s tie to court that day.