For more than six years, a progressive think tank in Washington, D.C., has been pressing the CIA in court for information about the late Colombian drug trafficker Pablo Escobar.
When a judge ruled in part against the agency this summer, telling the CIA to go back and do a more adequate search for documents, the government decided not to appeal the decision. In October, the CIA’s lawyers at the U.S. Attorney’s Office for the District of Columbia said it would take five years to complete the search for records under the broad terms of the request.
This is how government lawyers put it in a court filing then: “Based on the wording of plaintiff’s Freedom of Information Act request, defendant currently believes that five years will be required to complete the FOIA search.”
On Tuesday at a hearing in the case, the presiding judge, Royce Lamberth, assailed the government for seeking more time to complete a public records request that was initially filed with the agency in 2004. “I’ll tell you up front that you’re not getting five years,” Lamberth, the chief federal trial judge in Washington, said. He called the government’s proposed schedule “laughable on its face.”
The Institute for Policy Studies, which focuses research on social and environmental movements, first submitted the request to the CIA in 2004 asking for all records that mention or relate to Pablo Escobar, the leader of the Medellin cartel who was fatally shot in 1993.
The lawsuit, filed in 2006 in Washington federal district court, said that the Escobar records will allow the public to “effectively analyze and understand the United States government’s foreign policy.”
An Assistant U.S. Attorney in the District, Fred Haynes, said in court Tuesday that the “big killer” in the case — the part of the document request that will consume the most time — is the search and review of records with other agencies. “That’s going to be a difficult thing,” Haynes told Lamberth.
When Haynes mentioned that the CIA may want to ask the judge to reconsider the scope of his August ruling, Lamberth wasn’t amused. “You’re talking four months later and you want to play this game?” the judge said. Lamberth on Tuesday called the agency’s search for records “slipshod.”
Haynes told the judge that not all the potential relevant documents are in an electronic format, and that each piece of paper that merely mentions the name Escobar needs to be closely inspected. Much of the information is likely classified, Haynes said. That classification decision, he said, would have to be reviewed.
“In an effort to try to more narrowly focus the search for documents and thereby dramatically reduce the search time, defendant has repeatedly asked plaintiff’s counsel to advise the CIA of the specific information that they are interested in discovering,” Haynes said in a court filing in November.
Brian Gaffney of San Francisco’s Lippe Gaffney Wagner, representing the Institute for Policy Studies, rejected a proposal from the CIA to cut out other agencies from the search for records.
Gaffney also didn’t like the idea of limiting the request to documents to those in which Escobar was the focus of the record and not just named somewhere in the file.
The CIA suggested that approach would speed up the search. Gaffney, however, questioned the merits of that position, arguing on Tuesday in court that he’s unwilling to allow the CIA to make subjective decisions about whether or not a document is relevant.
The institute, Gaffney said in court records, is trying to help out the CIA by restricting the search for records to the period between 1989 and 1995 and by allowing a rolling production of documents.
The case will drag on for at least another month or so, if not longer. Haynes said the CIA could file papers in January asking Lamberth to clarify the scope of the universe of records the CIA must look for.
But it’s clear Lamberth isn’t interested in letting the dispute trudge on for years.
“You come in 2012 and say ‘give us another five years,’” Lamberth said. “It’s preposterous.”
This article first appeared on The BLT: The Blog of Legal Times.