Represented by Matthew W.S. Estes, the scholars seek to alert the United States Court of Appeals for the Ninth Circuit to the broad implications of the lower court's ruling.

In the lower court, U.S. District Judge David Levi held that the CIA may categorically refuse to review for release all President's Daily Briefs, in perpetuity, regardless of their content, because the intelligence reports are a protected intelligence method. Attorney Matthew Estes commented, "Judge Levi's expansive ruling could reverse 40 years of access to historical CIA intelligence products. The decision is not required by the Freedom of Information Act or court precedents and, in fact, is in direct conflict with applicable Supreme Court holdings and Congressional action. It also represents poor public policy that runs counter to the principle that historical presidential records should be made public that has been cited by the Supreme Court, Congress and our past Presidents."

Further, Judge Levi held that the Briefs also could be categorically withheld because they are protected by a limitless presidential privilege for confidential communications with advisers. The scholars argue that this holding contradicts the Supreme Court's decision in the Nixon tapes cases that privilege erodes over time and Congress's clear finding in the 1978 Presidential Records Act that the privilege no longer applies 12 years after the president leaves office. Moreover, the rationale for the privilege makes no sense in light of the extensive public availability of President Johnson's deliberations, including over 400 hours of tapes of his oval office conversations.

The amici include: The American Historical Association, the American Political Science Association, the National Coalition for History, the Organization of American Historians, the Presidency Research Group, the Society of American Archivists, and the Society for Historians of American Foreign Relations, along with noted scholars including Barton J. Bernstein, Robert Dallek, Lloyd Gardner, Fred I. Greenstein, George C. Herring, Jeffrey P. Kimball, Stanley I. Kutler, Walter LaFeber, Anna Nelson, and Robert D. Schulzinger.

###