REFLECTIONS

...The decision effectively reverses the requirement that the FBI divulge much of the investigatory materials in closed cases of historic significance...

...When our nation, for the first time since the early New Deal days, has a judiciary considerably to the right of the populace and even the coordinate branches of Government, all prior bets are off...

...When Congress liberalized FOIA in 1974, it opened these FBI files of prior security investigations to public scrutiny...

...In an emergent pattern of utterly unscrupulous judicial activism (because no legal principle other than distaste for the outcome justifies it), the en banc rehearing has become the occasion to eviscerate progressive appellate panel decisions in such key areas as the environment, civil rights, and Executive Branch prerogatives...

...Of the minority who said what the prosecutors wanted to hear, most never testified...

...Some colleagues who closely follow that Court thought it would uphold the en banc majority and make the adverse precedent even worse...

...But despite my general awareness that the Federal courts have been packed with Reagan reactionaries, I was dumbfounded by what recently took place in the Irons lawsuit...

...The FBI appealed, and a three-judge panel of the First Circuit unanimously upheld Judge Garrity and the conventional interpretation of FOIA law...

...Garrity ordered the FBI to keep on producing the core informant reports in accordance with prior practice in this and other FOIA lawsuits...

...The record of what happened during the witch hunts of the 1950s should be made available to historians...

...I'm sorry to report that I lost the battle...

...The Department of Justice, certifying the case as one of "exceptional importance," demanded that the First Circuit provide an en banc rehearing on the release of FBI informant reports in Irons despite the unanimity of its panel in affirming Judge Garrity...

...That is one of the purposes of the Freedom of Information Act...

...The Smith Act prosecutions were a pivotal event in launching the Cold War at home...

...As the first person outside the FBI to peruse these dozens of late-1948 documents, I found their most striking feature to be that they tended to disprove, rather than prove, the allegations that served as basis for the Smith Act convictions...

...I thought the matter settled...

...Even as the Supreme Court was preparing its assaults on civil and abortion rights, an equally ominous development unfolded in the Federal appeals courts: Within the past few years, there has been a sudden surge in full-court rehear-ings...

...In seven of the eleven appellate circuits, judges are rehearing decisions not to their ideological taste...

...After skirmishes in Federal district court, the FBI began to make available large parts of these files...

...All prior American law confirms that informants lose their privilege by testifying...

...Last fall the First Circuit, by a one-vote margin, accepted the Justice Department's novel thesis that the informant could not waive the "informant privilege" under the FOIA because the statute was designed to place the privilege in the hands of the FBI...

...The top leadership of the Communist Party of the United States—and later the secondary leadership—was convicted of conspiring to overthrow the Government by force and violence...

...The prosecutors themselves considered them too erratic and impeachable to be put on the stand, or the witnesses were unwilling to repeat their allegations under oath...

...and most prior FOIA cases had agreed that once an informant testified, his reports would no longer be exempt from disclosure...

...The majority decision tightens the garrote one more notch...

...Ultimately, a half dozen informant witnesses were assembled (after close to a hundred prospects were screened)—and their testimony clinched the prosecution's case...

...After some hesitation, we decided not to ask the newly reconstituted Supreme Court to review Irons...

...In particular, these members of the Party (whose first loyalty was now to the FBI) were queried as to whether and in what way the Party secretly advocated violent overthrow of the Government...

...There's got to be some common sense brought into this operation, I would think...

...In September 1980, as attorney for legal historians Melvin Lewis and Peter Irons, I asked for the FBI's voluminous Smith Act prosecution files, consisting of more than 100,000 pages...

...REFLECTIONS Edward Greer There Goes FOIA As the attorney in several major suits brought by American historians under the Freedom of Information Act (FOIA), I've read tens of thousands of pages of FBI files...

...In a six-to-three decision, the High Court affirmed the right of the Government to withhold records, relying on the same portion of the Freedom of Information Act that was involved in the Irons case...

...A majority of the informants denied that such advocacy had ever occurred...

...The FBI's informant files, when we got to see them, turned out to be a dramatic example of the FBI's abuse of its authority...

...As losing counsel in the case, I am hardly an unbiased commentator on the legal logic of this decision...

...could be...

...After we had received the informant reports from the initial Smith Act trial in the first stage of our lawsuit, we looked forward to obtaining similar documents for the successive Smith Act prosecutions of the next tier of Communist Party officials...

...Had the defense been able to call the many dozens of nonwitness informants to the stand, their testimony (which would have agreed with the Party leaders who denied such secret advocacy) might well have resulted in an acquittal...

...I've pored over background data on individuals, reports from other law-enforcement agencies, information compiled by direct observation (such as license-plate numbers of autos parked near a meeting), and informant reports...

...We won't know any more about the later Smith Act trials against the second-tier leaders...

...cessful prosecutions set the tone for the sweeping repressive measures of the McCarthy Era...

...Clearly, the Federal judiciary is now disposed to interpret the Freedom of Information Act away...

...As Judge Hugh Bownes, one of the dissenters to the full appeals court's Irons decision, observed, "What this case primarily concerns is not the protection of witnesses but protecting a Government agency from public embarrassment...

...Suddenly, a great deal of important material entered the public domain, and much of it was distinctly unflattering to the FBI...

...I was wrong...

...Under the rubric of 'security' and 'protecting Government sources,' the Act is slowly being strangled to death...

...These last constitute, in volume and significance, the main part of the files...

...The FOIA, a hard-won and precious democratizing law, has been demolished...

...The files raised questions not only as to the good faith of the prosecution teams but even as to whether the "crimes" at issue had occurred at all...

...The informant reports, in effect, are the FBI files...

...Over the past decade, I've seen a gradual closing off of FOIA as a source of FBI raw data...

...There was evidence, for example, of how COINTELPRO provoked various black radical groups to wage warfare against each other...

...Despite the FBI's discomfiture at such disclosures, judicial-orders forced the Bureau to divulge a considerable portion of requested informant reports...

...Often, the raw files were strikingly at odds with the picture that had been developed in court by Government prosecutors and their FBI investigators...

...The glimpse of the security apparatus provided by FOIA has been closed...

...Now, I'm sorry to say, the door has been slammed shut on this invaluable archive by a court decision in a case in which I had the misfortune to play a part...

...The sucEdward Greer practices civil-litigation law in Cambridge, Massachusetts, and is the 1990 Senior Fellow at the ACLU national office in New York City...

...But I can fairly observe that the effect of the ruling is to give the FBI what it has unsuccessfully sought since the 1974 FOIA amendments...

...attorneys, were asked questions designed to elicit the most damaging information about the Communist Party and its leaders...

...As if to confirm our assessment not to apply for rehearing in the Irons case, the Supreme Court handed down the only Freedom of Information Act decision of its latest term on December 11, 1989, in John Doe Agency v. John Doe Corp...

...Between my first such lawsuit in the late 1970s and the Irons case of the mid-1980s, the proportion of useful material successfully withheld by the FBI, on grounds that it was exempt from release under FOIA disclosure requirements, significantly increased...

...The informants, surrounded by FBI agents and assistant U.S...

...The early releases in Irons (as in many other FOIA requests) showed strong evidence of improper manipulation in the prosecution of the top Communist Party leadership...

...Before the full court, the Government asserted that informant reports remained exempt from turnover under FOIA because the "informant privilege" was not waived when an informant testified...

...The same concept of executive power above the people which has caused so much harm to the Republic has once again been exalted...

...They are also an indispensable archive of social history in late-Twentieth Century America...

...Now it can withhold informant reports in perpetuity, and there can be no public oversight as to whether the FBI played straight or cooked the evidence...

...All of a sudden, to the amazement of the distinguished trial court judge, W. Arthur Garrity, the FBI announced that all informant reports were exempt from FOIA release—even if the informant subsequently testified at one of the Smith Act trials...

...When Judge Garrity heard that the interpretation of FOIA now sought by the FBI would lead to blacking out such background-identifying information as the high school a witness had attended, he commented from the bench, "I can't imagine that...