19 October 1997
Source: Hardcopy from William Payne
See related documents: http://jya.com/whpfiles.htm
| U.S. Department of Justice | ||
| United States Attorney District of New Mexico |
||
| _____________________________________________________________________ | ||
| Post Office Box 607 Albuquerque, New Mexico 87103 |
505/766-3341 |
|
| October 3, 1997 | ||
William H. Payne
13015 Calle de Sandias, N.E.
Albuquerque, New Mexico 87111
Arthur R. Morales
1024 Los Arboles, N.W.
Albuquerque, NewMexico 87107
Re: Payne & Morales v Minihan
USDC NM CIV 97-0266 SC/DJS
Gentlemen:
Enclosed is a court-endorsed copy of Defendant's Motion for Partial Dismissal and Motion for Summary Judgment.
Sincerely,JOHN J. KELLY
United States Attorney[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
JEM/yh
Enclosure
COPY
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
97 OCT -3 PM 1:26
Robert M. Marsh
CLERK-ALBUQUERQUE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM H. PAYNE )
ARTHUR R. MORALES )
)
Plaintiffs, )
)
vs. ) CIVIL NO. 97-0266 SC/DJS
)
LT GEN KENNETH A MINIHAN )
USAF Director, National Security )
Agency, )
)
Defendant. )
DEFENDANT'S MOTION FOR PARTIAL DISMISSAL
AND MOTION FOR SUMMARY JUDGMENT
COMES NOW Defendant, by and through his undersigned counsel,
and hereby respectfully moves this Court for its Order partially
dismissing pro se Plaintiffs' Complaint for Injunctive Relief
("Complaint"), and granting summary judgment to Defendant as a
matter of law as to the remainder of Plaintiffs' Complaint. As
grounds for this Motion, which are more fully set out in the
Memorandum In Support Of Defendant's Partial Motion To Dismiss
And Motion For Summary Judgment filed concurrently herewith,
Defendant states the following:
Plaintiff William Payne filed two Freedom of Information Act
(FOIA) Requests with Defendant National Security Agency (NSA).
Request 1 must be dismissed because Mr. Payne failed to exhaust the
administrative remedies required by FOIA prior to a judicial review
of an agency's handling of a FOIA request. Defendant is entitled
to summary judgment as a matter of law with regard to Mr. Payne's
FOIA Request 2 because the information requested which is the
subject of his lawsuit is properly exempt from withholding under
Exemptions 1 and 3 of the FOIA, 5 U.S.C. § 552.
Concurrence of pro se Plaintiff William Payne was requested
and denied. A message seeking concurrence from pro se Plaintiff
Arthur R. Morales was left at his telephone of record on october 1,
1997. Mr. Morales never returned the phone call, and it must be
assumed that he does not concur with this Motion. It should be
noted that, on September 23, 1997, Defendant filed a Motion to
Dismiss Plaintiff Arthur R. Morales on the grounds that he has
never filed a FOIA request with NSA, and as such had no standing to
bring this lawsuit.
WHEREFORE, Defendant respectfully requests that this Court
dismiss the portion of Plaintiffs' Complaint pertaining to FOIA
Request 1, and grant summary judgment to Defendant as a matter of
law as to FOIA Request 2, thus dismissing Plaintiffs' Complaint and
cause of action in their entirety.
Respectfully submitted,
JOHN J. KELLY
United States Attorney
[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
P.O. Box 607
Albuquerque, New Mexico 87103
(505) 766-3341
I HEREBY CERTIFY that a true copy
of the foregoing pleading was mailed
to pro se Plaintiffs,
this 3rd day of October, 1997.
[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM H. PAYNE )
ARTHUR R. MORALES )
)
Plaintiffs, )
)
vs. ) CIVIL NO. 97-0266 SC/DJS
)
LT GEN KENNETH A MINIHAN )
USAF Director, National Security )
Agency, )
)
Defendant. )
MEMORANDUM IN SUPPORT OF DEFENDANT'S
PARTIAL MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
This Memorandum of Law is in support of Defendant's
Partial Motion to Dismiss and Motion for Summary Judgment. This
lawsuit concerns two Freedom of Information Act ("FOIA") requests
which Plaintiff William Payne made to the National Security Agency.
It is Defendant's position that, as to one of his FOIA requests,
this Court either lacks subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1), or Plaintiff Payne has failed to state a
claim upon which relief can be granted pursuant to Fed.R.Civ.P.
12(b)(6). Under either legal basis, partial dismissal of Plaintiff
Payne's Complaint for Injunctive Relief ("Complaint") and cause of
action concerning one of his FOIA requests is approprlate because
Plaintiff Payne has failed to exhaust administrative remedies prior
to requesting judicial review of Defendant's handling of that FOIA
request.
As to the second FOIA request, the documentation
referenced in Plaintiffs' Complaint is properly exempt under the
provisions of the FOIA and, as such, not subject to disclosure.
[1]
Summary judgment must be granted to Defendant as a matter of law
with regard to the second FOIA request, resulting in a dismissal of
all of Plaintiffs' Complaint and causes of action.
STATEMENT OF THE CASE
This is an action for injunctive relief under the FOIA,
5 U.S.C. § 552. Plaintiffs Payne and Morales filed their Complaint
on February 28, 1997. Plaintiff Payne claims that the National
Security Agency ("NSA" or "Agency") has refused to release the
information which he requested pursuant to FOIA requests, and seeks
an injunction compelling the Agency to produce and to make publicly
available the various records he has requested. Plaintiff Morales
never made a FOIA request to NSA. On September 23, 1997, Defendant
filed a Motion to Dismiss Plaintiff Morales from this lawsuit on
the basis that he lacks standing, he has failed to exhaust required
administrative remedies, and this Court lacks jurisdiction over his
cause of action.
The National Security Agency was established by
Presidential Directive in 1952 as a separately organized agency
within the Department of Defense. The agency is responsible for
communications security and "signals intelligence" activities of
the United States. "Signals intelligence" refers to intelligence
derived from interception of foreign electromagnetic signals. The
NSA regularly monitors a certain proportion of radio communications
and focuses on communication channels that yield a high proportion
of useful intelligence information. This intelligence information
is reported to national policy makers and others in the United
2
States intelligence community. See, Declaration of Gary W. Winch,
Exhibit A attached hereto, at 2.
As alleged in the Complaint at 16, ¶ 20, Plaintiff Payne
issued a FOIA request to NSA seeking NSA intercepted Iranian and
Libyan messages and, if the requested documents were classified,
asked NSA to perform declassification overview of the documents to
confirm that they were properly classified. Mr. Payne asserted
that "[i]t appears that NSA/US government was giving Iranian
tactical war messages to Iraq during the Iran/Iraq war." Id. As
alleged in the Complaint at 19, ¶ 22, on the same day, Mr. Payne
issued another FOIA request to NSA asserting that he "found no
evidence that NSA possesses any special crypto skills . . ." and
requested access to various algorithms to show the "Clinton
administration, [C]ongress, and the public that NSA possess no
superior knowledge of crypto matters." Id.
STATEMENT OF FACTS
1. As stated, supra, Plaintiff William Payne made two
separate FOIA requests of the Agency.
2. The first FOIA request sought access to all technical
documentation on various algorithms; specifically, Benincasa's
original NSS/USO algorithm; Benincasa's revision of the original
algorithm; Unkenholtz - Judy GRANITE Algorithm; MSCU algorithm;
clipper algorithm; and STU III algorithms. This FOIA request is
referred to hereinafter as "Request 1."
3. The second FOIA request sought the following
documents: (a) "[a]ll documents containing the name of William H.
3
Payne, Bill Payne, etc. between the dates of January 1, 1970
to June 10, 1996" (requested under the FOIA and the Privacy Act
("PA"), 5 U.S.C. 552(a); (b) "NSA's required published
classification guidelines" (requested under FOIA); and, (c) "all
NSA intercepted Iranian messages and translations between January
l, 1980 and June 10, 1996" and "all NSA intercepted Libyan messages
and translations between January 1, 1980 and June 19, 1996"
(requested under the FOIA). This FOIA request is referred to
hereinafter as "Request 2."
4. It should be noted that with regard to Request 2,
Plaintiffs' Complaint refers only to the alleged wrongful
withholding of the information requested concerning NSA intercepted
Libyan and Iranian messages between January 1, 1980 and June 10,
1996. Therefore, the alleged wrongful withholding of requested
"intercepted Libyan and Iranian messages" is the only aspect of
this FOIA request before this Court, and that is the only aspect of
Request 2 which will be addressed in this Memorandum.
5. Both of the FOIA requests are dated June 10, 1996;
however, they were received on different dates by the FOIA office
because they were originally incorrectly directed to Agency offices
by Mr. Payne.1
_____________________
1 As stated in the Complaint, at 16 ¶ 20, Mr. Payne issued a
FOIA request on June 10, 1996 to NSA administrator Bruce Bottomly.
As alleged in the Complaint, at 19 ¶ 22, Mr. Payne issued another
FOIA request to NSA crypto-mathematician Brian Snow also on June
10, 1996. As stated in the applicable regulations, 32 CFR Part
299, FOIA requests directed at NSA must be sent to the Chief,
Office of Policy. Neither Mr. Bottomly nor Mr. Snow are the
appropriate individuals under the regulations to submit FOIA
requests.
4
6. Request 1 was received by the FOIA office on June 20,
1996, and Request 2 was received by the FOIA office on July 18,
1996.
7. NSA accepted Plaintiff Payne's requests and began
processing them according to routine procedures.
8. The Declaration of Gary W. Winch, Director of Policy,
attached hereto as Exhibit A with Attachments, details the specific
records requested, the processing of Mr. Payne's requests, and the
Agency decisions with regard to his two FOIA requests.
9. On January 6, 1997, the Agency informed Mr. Payne
that, as to Request 1, an Agency-wide search would be required, and
explained that Mr. Payne's request for a waiver of fees had been
denied. Mr. Payne was told that because his request for a waiver
of fees for the search was denied, if he authorized the Agency to
proceed with the search his total cost for conducting the search
would be approximately $1267.50 (the total estimate costs minus two
hours at no cost as required by the FOIA) and, in order to commence
the search, advance payment of $1,267.50 was required within 30
days. The letter also clearly informed Mr. Payne that if he
disagreed with the decision regarding the fee waiver he could
appeal the denial of the fee waiver within 60 days after
notification of the denial and the letter set out the specific
requirements to do so. Exhibit A, Attachment 5, Letted dated
January 6, 1997.
10. Mr. Payne never tendered a payment to the Agency,
nor did he appeal the fee waiver decision. Declaration of Rona L.
5
Lerner, Exhibit A to Defendant's Response to Plaintiffs' Motion for
Summary Judgment filed June 19, 1997.
11. On September 18, 1997, the Agency informed Mr. Payne
that it could neither confirm nor deny the existence of NSA
intercepted Iranian/Libyan messages and translations and denied
the FOIA request on the basis of Exemptions 1 and 3 to the FOIA.
Exhibit A, Attachment 6, letter dated September 18, 1997.
ARGUMENT
I. FOIA REQUEST 1 MUST BE DISMISSED FOR
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
As a condition for access to agency records under the
FOIA, requesters are to pay search and copying fees or must qualify
for a waiver of these fees. 5 U.S.C. § 552(4)(A). Fees are
reduced or waived only where disclosure of the requested
information is in the public interest and will contribute to the
public understanding of the operations or activities of the
government. If the requester is denied a waiver of fees, he has
the option to appeal that decision within the agency and thus
exhaust any available administrative remedies.
The law is well-established that a plaintiff must exhaust
administrative remedies prior to requesting judicial review of the
Agency's handling of his FOIA request. Crooker v. United States
Secret Service, 577 F. Supp. 1218, 1219 (D.D.C. 1983); Oglesby v.
Department of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990); Pollack
v. Department of Justice, 49 F.3d 115, 119 (4th Cir.), cert.
denied, 116 S.Ct. 130 (1995). In Oglesby, the Court explained that
exhaustion was necessary in order to allow the agency from which
6
the records are being requested an opportunity to exercise its
"discretion and expertise on the matter and to make a factual
record to support its decision" and allows top managers of an
agency to "correct mistakes made at lower levels and thereby
obviates unnecessary judicial review." Id. Courts have
consistently confirmed that the FOIA requires exhaustion of the
administrative appeal process before an individual may seek relief
in the courts. See, Dettmann v. U.S. Department of Justice, 802
F. 2d 1472 , 1477 (D. C. Cir. 1986); Stebbins v. Nationwide Mutual
Insurance Co., 757 F. 2d 364 (D. C. Cir. 1985) (per curiam)
("Exhaustion of [administrative] remedies is required under
the Freedom of Information Act before a party can seek judicial
review."). Administrative exhaustion does not occur in the FOIA
context until the required fees are paid in full or an appeal is
taken from the refusal to waive fees. Crooker, 577 F. Supp. at
1219 (requester must pay fees or administratively appeal the
requirement of fees before seeking judicial review of a FOIA
request).
The FOIA does permit constructive exhaustion, and 5
U.S.C. § 552(a)(6)(C) allows a requester to file a lawsuit when ten
days have passed without a reply from the agency indicating that it
is respondinq to his request; however, this option lasts only up to
the point that an agency actually responds. Once the agency
actually has responded to the request, the requester may no longer
exercise his option to go to court immediately. Rather, the
requester can seek judicial review only after he has unsuccessfully
7
appealed to the head of the agency as to any denial and thereby
exhausted his administrative remedies. Oglesby, 920 r.2d at 64.
Thus, if the agency responds to a FOIA request before the requester
files suit, the ten-day constructive exhaustion provision in 5
U.S.C. § 552a(6)(C) no longer applies and actual exhaustion of
administrative remedies is required." Id., at 61. Simply stated,
once the agency responds, the requester must exhaust all
administrative remedies. McDonnell v. United States, 4 F.3d 1227,
1240 (3d Cir. 1993).
Where a requester chooses to wait past the ten-day period
until the agency actually responds, as Mr. Payne did in the instant
case, Congress intended that the administrative route be pursued to
its end. Oglesby, 920 F.2d at 64. Indeed, when a FOIA plaintiff
attempts to obtain judicial review without first properly
undertaking full and timely administrative exhaustion, it is clear
that his lawsuit is subject to ready dismissal - either upon a
failure to state a claim upon which relief may be granted, or upon
lack of subject matter jurisdiction. See, Sweetland v. Walters, 60
F.3d 852, 855 (D.C. Cir. 1995); Taylor v. Appleton, 30 F.3d 1365,
1367 n.3 (11th Cir. 1994); McDonnell v. United States, 4 F.3d at
1240 ("district court correctly declined to exercise subject matter
jurisdiction"). Further, when the time period within which the
plaintiff might have filed his administrative appeal has long since
expired, courts have held that the case shall be dismissed with
prejudice. Kay v. FCC, 884 F. Supp. 1, 3 (D.D.C. 1995).
8
In the instant case, the Agency properly assessed fees
against Mr. Payne consistent with the Agency's statutory and
regulatory authority. NSA informed Mr. Payne in the letter dated
January 6, 1997, from James P. Cavanaugh, Deputy Director of
Policy, that he could appeal the decision regarding the fee waiver
within 60 days after notification of the denial, and he was given
specific information as to how to appeal. Exhibit A, Attachment
5. Mr. Payne never pursued the appeal, nor did he ever tender the
payment of $1,267.50 requested pursuant to the FOIA. Exhibit A, at
5 ¶ 14. Plaintiff Payne's failure to either pay the search fees or
appeal the denial of the waiver of the fees has halted the
administrative process and prevented NSA from conducting a review
of the documents to determine whether they are exempt or releasabie
under the FOIA.
As to FOIA Request 1, exhaustion does not occur until the
required fees are paid or an administrative appeal is taken from
the refusal to waive fees. Pollack, 49 F.3d at 119-20. Payment of
fees under FOIA is a step in the administrative process which must
be pursued before resort to judicial review. Kuchta v. Harris,
1993 WL 87705 (D.Md.) March 25, 1993, citing to Stebbins, 757 F.2d
at 366. The time period for seeking administrative appeal has long
since expired. Because Mr. Payne has failed to exhaust his
administrative remedies as to Request 1, (that FOIA request seeking
access to all technical documentation on various algorithms,
specifically: Benincasa's original NSS/USO algorithm; Benincasa's
revision of the original algorithm; Unkenholtz - Judy GRANITE
9
Algorithm; MSCU algorithm; clipper algorithm; and STU III
algorithms), this Court should dismiss his cause of action
concerning this FOIA request on the basis that the Court lacks
subject matter jurisdiction. In the alternative, this Court should
dismiss his cause of action concerning Request 1 on the basis that
Mr. Payne has failed to state a claim upon which relief can be
granted.
II. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT
AS TO FOIA REOUEST 2
As stated supra, Plaintiffs' Complaint references
Plaintiff Payne's FOIA request to NSA administrator Bruce Bottomly
requesting access to all NSA intercepted Iranian messages, all NSA
intercepted Libyan messages (Complaint, at 16 ¶ 20), and
acknowledges that "5 U.S.C. § 552(b) permits withholding only
properly classified documents from a Freedom on [sicj Information
Act (FOIA) request . . . ." By letter dated September 18, 1997,
from Gary Winch, Director of Policy, NSA to William Payne,
(Attachment 6 to Exhibit A attached hereto), Mr. Payne was informed
that the requested documentation about Iranian/Libyan messages
would not be released for the following reason:
[W]e have determined that the fact of the existence or
non-existence of NSA intercepted Iranian/Libyan messages
and translations is a currently and properly classified
matter in accordance with Executive Order 12950. Thus,
this portion of your request is denied pursuant to the
first exemption of the FOIA which provides that the FOIA
does not apply to matters that are specifically
authorized under criteria established by an Executive
Order to be kept secret in the interest of national
defense or foreign relations and are in fact properly
classified pursuant to such Executive Order.
10
Exhibit A, Attachment 6 at 3.2
In addition, Mr. Payne was informed that the Agency is
authorized by various statutes to protect certain information
concerning its activities. See, Title 18 U.S. Code 798; 50 U.S.C.
403-3(c); and Section 6, Public Law 86-36 (50 U.S.C. 402 note).
The third exemption of the FOIA provides for the withholding of
information specifically protected from disclosure by statute. The
portion of Mr. Payne's request for documents concerning
Libyan/Iranian message traffic has been denied by the Agency
because the fact of the existence or non-existence of the
information is exempted from disclosure pursuant to the third FOIA
exemption.
Exemption 1 of the FOIA protects from disclosure national
security information concerning the national defense or foreign
policy, provided that it has been properly classified in accordance
with the substantive and procedural requirements of an executive
order. 5 U.S.C. § 5S2(b)(1). As of October 14, 1995, the
executive order in effect is Executive Order 12958. Executive
Order 12958 recognizes both the right of the public to be informed
about activities of its government and the need to protect national
security information from unauthorized or untimely dislosure.
____________________
2 The Agency determination that the "fact of the existence or
non-existence of NSA intercepted Iranian/Libyan messages and
translations is a currently and properly classified matter" and
thus exempt from FOIA disclosure has been found to be an
appropriate response to a request for such information. In Hunt v.
CIA, 981 F.2d 1116, 1118 (9th Cir. 1992), the court found that the
agency's "Glomar" response was appropriate because acknowledgment
of any records would reveal the sources and methods which were
protected.
11
Information may not be classified unless "its disclosure reasonably
could be expected to cause damage to the national security." In
the area of intelligence sources and methods, courts largely
accepted the agency's position that disclosure of this type of
information will cause damage to national security interests
because this is "necessarily a region for forecasts in which [the
agency's] informed judgment as to potential future harm should be
respected." Washinqton Post v. DOD, 766 F. Supp. 1, 7 (D.D.C.
1991) (disclosure of working files of failed Iranian hostage rescue
attempt containing intelligence planning documents would "serve as
a model of 'do's and don't's" for future counter-terrorist missions
"with similar objectives and obstacles").
Courts have demonstrated a deference to agency expertlse
by according little or no weight to opinions of persons other than
the agency classification authority when reviewing the propriety of
agency classification determinations. See, e.g., Miller v. United
States Dep't of State, 779 F.2d 1378, 1387 (8th Cir. 1985); Maynard
v. CIA, 986 F.2d 547, 556 n.9 (lst Cir. 1993) (court "not in a
position to 'second-guess"' agency's determination regarding need
for continued classification of material); Krikorian v. Dep't of
State, 984 F.2d 461, 464-65 (D.C. Cir. 1993) (acknowledging
agency's "unique insights" in areas of national defense and foreign
relations); Willens v. NSC, 726 F. Supp. 325, 326-27 (D.D.C. 1989)
(court cannot second-guess agency's national security
determinations when they are "credible and have a rational basis").
Persons whose opinions about whether or not a document is properly
12
classified have been rejected by the courts in this context include
the following: 100 ambassadors' opinion was rejected and the
classification officer's determination was accepted Goldberg v.
United States Dep't of State, 818 F.2d 71, 79-80 (D.C. Cir. 1987);
a retired admiral, Hudson River Sloop Clearwater Inc. v.
Department of the Navy, 891 F.2d 414, 421-22 (2d Cir. 1989); a
former agent of the CIA, Gardels v. CIA, 689 F.2d 1100, 1106 n.5
(D.C. Cir. 1982); and a retired CIA staff historian, Pfeiffer v.
CIA, 721 F.Supp. 337, 340-41 (D.D.C. 1989).
In this case, information that would reveal either
directly or indirectly, the degree of exploitation of a foreign
government's communications by NSA is classified pursuant to
Executive Order 12958, Sections 1.5(c) and 1.5(g), because
disclosure would result in the impairment or possible defeat of
NSA's communications intelligence efforts and the loss of valuable
foreign intelligence information. Exhibit A, at 7 ¶ 18. The
existence or non-existence of Iranian and Libyan message traffic
between i980 and 1996 logically falls within the classification
provisions of Executive Order 12958, and thus, comes directly
within Exemption l of the FOIA. To admit or deny that such records
exist would reflect the vulnerabilities and capabilities of
systems, installations, projects, or plans relating to national
security. Exhibit A, at 7 ¶ 20. NSA personnel are in the best
position to determine whether or not classification is proper. Mr.
Payne's opinion that the message traffic, if it exists, is subject
to declassification has no merit.
13
As stated supra, Mr. Payne's FOIA request for
Iranian/Libyan messages was additionally denied on the basis of
Exemption 3. Exemption 3 of the FOIA incorporates the disclosure
prohibitions that are contained in various other federal statutes.
Exemption 3 allows the withholding of information prohibited from
disclosure by another statute if the statute either "(A) requires
that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of matters
to be withheld." 5 U.S.C. § 552(b) (3) (1994) (emphasis added). A
statute thus falls within the exemption's coverage if it satisfies
any one of its disjunctive requirements. See, Irons & Sears v.
Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979), cert. denied, 444 U.S.
1075 (1980).
Title 18 U.S.C. § 79,3(a)(3), referenced in the September
18, 1997 letter to William Payne, specifically prohibits the
dissemination of classified information concerning the
communication intelligence activities of the United States, and 18
U.S.C. § 798 (a) (4) prohibits the release of any classified
information obtained by the processes of communication intelligence
from the communications of any foreign government. The term
"communication intelligence," as defined in Section 798, means all
procedures and methods used in the interception of communications
and the obtaining of information from such communications by other
than the intended recipients. Exhibit A, at 9 ¶ 23. Release of
such classified information is subject to a monetary fine or
14
imprisonment of not more than ten years, or both. The existence or
non-existence of the requested information - Iranian/Libyan
messages - concerns communication intelligence activities, and the
release of information of any kind concerning this topic would
compromise the processes of communication intelligence from the
communications of foreign governments. Therefore, the
dissemination of any information related to this subject comes
within the dictates of 18 U.S.C. § 798, and is clearly prohibited.
Release or recognition of the existence of the requested
information is prohibited from disclosure pursuant to Exemption 3
of the FOIA.
Similarly, Section 6 of Public Law No. 86-36, also
referenced in the September 18, 1997 letter to William Payne, comes
within the parameters of an Exemption 3 withholding statute.
Exhibit A, at 9 ¶ 23. Section 6 of Public Law No. 86-36 provides
in part that:
nothing in this Act . . . or any other law (including,
but not limited to, the (Classification Act of 1949) . .
. shall be construed to require the disclosure or the
organization or any function of the National Security
Agency, of any information with respect to the activities
thereof . . . .
The legislative history of Section 6 confirms that it manifests a
congressional appreciation of the dangers inherent in airing
particular data. The unique and highly sensitive activities of the
Agency require extreme security measures, and pertain to highly
classified functions vital to the national security. Thus,
Section 6 reflects a Congressional judgment that, in order to
preserve national security, information elucidating the subjects
15
specified ought to be safe from forced exposure. See, Winter v.
National Security Agency/Central Security Service, 569 F. Supp. 545
(S.D. Cal. 1983).
Likewise, the National Security Act, 50 U.S.C.
§ 403(c)(5), which requires the protection of "intelligence sources
and methods" was also referenced in the September 18, 1997 letter
to William Payne. Exhibit A, at 9 ~ 24. The Supreme Court has held
that this statute clearly refers to particular types of matters to
be withheld and thus is encompassed by Exemption 3. CIA v. Sims,
471 U.S. 159, 167 (1985); see Maynard v. CIA, 986 F.2d 547, 554
(1st Cir. 1993) (under § 403(d)(3) it is the responsibility of the
Director of the CIA to determine whether sources or methods should
be disclosed); Krikorian v. Department of State, 984 F.2d 461, 465
(D.C. Cir. 1993) (same); Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C.
Cir. 1990) (same); Minier v. CIA, 88 F.3d 796, 801 (9th Cir. 1996)
(agency properly refused to confirm or deny existence of records
concerning deceased person's alleged employment relationship with
CIA).
FOIA Request 2 concerns classified national security
information concerning the national derense or foreign policy.
Exemption 1 of the FOIA protects from disclosure such national
security information. Pursuant to the cited statutes, NSA has also
properly claimed Exemption 3 of the FOIA in refusing to release or
acknowledge the existence of the requested information. Summary
judgment shculd ke granted to Defendant as a matter of law with
regard to Plaintiff Payne's FOIA Request 2.
16
CONCLUSION
For the reasons stated above, Plaintiff Payne's Request
1 must be dismissed on the grounds that he failed to exhaust his
administrative remedies. Summary judgment must be granted to
Defendant as a matter of law with regard to Plaintiff Payne
Request 2 because the requested information is clearly covered by
Exemptions 1 and 3 of the Freedom of Information Act. Therefore,
Plaintiffs' Complaint and cause of action must be dismissed.
Respectfully submitted,
JOHN J. KELLY
United States Attorney
[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
P.O. Box 607
Albuquerque, New Mexico 87103
(505) 766-3341
I HEREBY CERTIFY that a true copy
of the foregoing pleading was mailed
to PRO SE Plaintiffs,
this 3rd day of October, 1997.
[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
N:\UDD\JMITCHELL\PAYNE\mem.dis
17
DEFENDANT'S |
IN THE UNITED STATES DISTRICT COURT |
||
FOR THE DISTRICT OF NEW MEXICO |
||
| WILLIAM H. PAYNE | ) | |
| ARTHUR R. MORALES, | ) | |
| ) | ||
Plaintiff, |
) | |
| ) | ||
vs. |
) | CIVILNO. 97-0266 SC/DJS |
| ) | ||
| LT. GEN. KENNETH A. MINIHAN | ) | |
| USAF Director, National Security | ) | |
| Agency, | ) | |
| ) | ||
Defendant. |
) | |
DECLARATION OF GARY W. WINCH
GARY W. WINCH hereby declares and states:
1. I am the Director of Policy for the National Security Agency (NSA). I have served in this position since September 1997. I have served with NSA for 30 years, and prior to my current assignment, I held various senior and supervisory positions including Director of Counternarcotics, Deputy Special U.S. Liaison Officer, London, and Chief of Corporate Relations. As the Director of Policy, I am a TOP SECRET classification authority, pursuant to Executlve Order 12958, section 1.4, and I am responsible for the processing of all requests made pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act (PA), 5 U.S.C. § 552a, for NSA records. Through the exercise of my official duties, I have become familiar with the two requests for records filed by Mr. William H. Payne with NSA in 1996. The statements herein are based upon my personal knowledge obtained in the course of mv official duties.
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2. I have prepared this declaration in support of NSA's motion to dismiss as to Mr. Payne's first request for failure to exhaust his administrative remedies, and in support of its motion for summary judgment as to Mr. Payne's second request because the Agency has properly asserted FOIA Exemptions 1 and 3 over the information requested and challenged in Mr. Payne's complamt.
3. This Declaration describes, inter alia, the actions NSA has taken to date in response to Mr. Payne's FOIA and PA requests and the reasons for those actions. In order to provide the necessary context for that discussion, I will first describe NSA's origin and mission, NSA's policies and procedures for responding to FOIA and PA reauests, and the sensitivity of the information sought from NSA.
I. ORIGIN AND MISSION OF NSA
4. The NSA was established by Presidential Directive in October 1952 as a separately organized Agency within the Department of Defense, under the direction, authority, and control of the Secretary of Defense, who was designated by the President as Executive Agent of the United States Government for conducting communications security activities and signals intelligence activities of the United States. See Executive Order 12333, Section 1.12(b).
5. NSA's signals intelligence (SIGINT) mission is to obtain information from foreign electromagnetic signals and to provide reports derived from such information or data to national policymakers and the intelligence community of the United States Gove~ment. A primary signals intelligence mission of the NSA is to intercept communications of foreign governments in order to obtain foreign intelligence information necessary to the national defense, national security, or the conduct of the foreign affairs of the United States. The signals intelligence collection mission of the NSA and the resulting SIGINT product reports it produces based on that collection provides national policymakers and the intelligence community with highly reliable foreign intelligence information. Information obtained from intercepted foreign
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communications is called communications intelligence (hereinafter, "COMINT"). NSA's COMINT efforts constitute part of the core functions and activities of the Agency.
6. A fundamental tenet of the COMINT process is that the identity of specific communications (commonly referred to as "targets"), the degree of success in exploiting those targets, the vulnerability of particular foreign communications, and the extent of any cryptanalytic successes are all matters that must be maintained in strictest secrecy because of the fragility of the ability to exploit foreign communications. If a foreign power is successful in defeating an intercept operation, all of the intelligence from that source is lost unless and until NSA can establish new and equivalent exploitation of the foreign powers' signals. If a source becomes unavailable, national policymakers and the intelligence community must operate without the information the signals provided. Such losses are extremely harmful to the national security of the United States.
7. Disclosure of the identity of the targets, the degree of success or weakness in exploiting those targets, the vulnerability of particular foreign communications, and the extent of any cryptanalytic success would encourage countermeasures by the targets of NSA's COMINT efforts. This would likely result in the denial or loss of valuable foreign intelligence information.
II. NSA's FOIA/PA POLICY AND PROCEDURE
8. It is NSA's policy to respond to written FOIA and PA requests in compliance with the law and in a manner which is as fair as possible to each individual requester. To implement this policy, the Agency has developed a two-track system: "first-in, first-out" and "easy-hard" for the processing of these requests. Under the "first-in, first-out" system, requests are processed in the order in which they are received. Regarding the "easy-hard" queue, an "easy" case is one where there are no Agency records responsive to the request or where responsive records are located
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and review can be done relatively quickly. Requests that are difficult or "hard" are placed in a separate "first-in, first-out" queue involving only "hard" cases. This dual track, "first-in, first-out" and "easy-hard" system of responding to requesters is advocated by both the Department of Justice and Department of Defense.
9. There are separate "first-in, first-out" and "easy-hard" queues for FOIA requests and for PA or FOIA/PA requests. A "FOIA request" is one that is processed only under the FOIA, while a "PA" or "FOIA/PA request" is one that requires processing under both the FOIA and PA. PA or FOIA/PA requests are generally requests from individuals seeking information on themselves.
III. PROCESSING OF PLAINTIFF'S REQUESTS
10. In a letter dated 10 June 1996 and addressed not to NSA's FOIA/PA unit whose address is published in the Federal Register, as required by law, at 32 C.F.R. Part 299, but to "DIRNSA/Attn: Brian Snow, R division," Mr. William H. Payne requested under 5 U.S.C. 552b access to all technical documentation on various algorithms, specifically, Benincasa's original NSS/USO algorithm, Benincasa's revision of the original algorithm, Unkenholtz - Judy GRANITE algorithm, MSCU algorithm, clipper algorithm, and STU III algorithms (all hereinafter referred to as Request 1). (Attachment 1). This request was received by the FOIA/PA unit on 19 June 1996. The FOIA/PA office mailed a notification of receipt to Mr. Payne on that same date. On 15 July 1996, requests for estimates of costs to search for responsive records were sent to various Agency offices where responsive records were likely to be found.
11. In a letter dated 10 June 1996 and again addressed not to NSA's FOIA/PA unit's published address, but to "DIRNSA/Attn: Bruce Bottomly, S9," Mr. Payne made the following requests: (1) "[a]ll documents containing the name of William H. Payne, Bill Payne, etc. between the dates of January 1,1970 to June 10,1996" (requested under the FOIA and the PA); (2) "NSA's required published classification guidelines"; and (3) "all NSA intercepted Iranian messages and translations
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between January 1, 1980 and June 10, 1996" and "all NSA intercepted Libyan messages and translations between January 1, 1980 and June 19, 1996" (all hereinafter referred to as Request 2). (Attachment 2). This request was received by the FOIA/PA unit on 18 July 1996, and notification of receipt was mailed to Mr. Payne on that date.
12. Neither request had been processed to completion when on 24 October 1996, in a letter addressed to the Director, Mr. Payne appealed what he characterized as a denial of both requests. (Attachment 3). By regulation, the Director has appointed the NSA Deputy Director as the FOIA/PA Appeal Authority.
13. The Agency responded to Mr. Payne's appeal of both requests in a letter dated 31 December 1996 and signed by William P. Crowell, NSA Deputy Director and Freedom of Information Act/Privacy Act Appeals Authority. (Attachment 4). Mr. Crowell described the Agency's method of processing FOIA requests and informed Mr. Payne that the Office of Policy was searching for documents responsive to his PA request (item 1 of Request 2). Mr. Crowell further informed Mr. Payne that the FOIA portion of his requests (Request 1 and items 2 and 3 of Request 2) would require an Agency-wide search and that the Office of Policy would forward the cost estimate for this search in a separate letter. The letter also informed Mr. Payne of his right to treat the letter as a denial of his appeal and of his right to judicial review.
14. In a letter dated 6 January 1997, Mr. James P. Cavanaugh, then Chief of the Office of Policy and Deputy Director of Policy for the Agency, responded to Mr. Payne's Request 1 (Attachment 5), again informing Mr. Payne of the need for an Agency-wide search and that his request for a waiver of fees had been denied. The search cost estimate was $1,317.60, as computed in accordance with DoD regulations. Mr. Payne was informed that 2 hours of search would be conducted at no cost to him, as required by the FOIA. In accordance with its regulations, NSA requires advance payment of costs exceeding $260 prior to initiating a search. Mr. Payne was
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so informed in the Agency's 6 January letter and was requested to pay the $1,267.50 (the remainder of the estimated search costs) within 30 days. Mr. Payne was informed that he could appeal the decision regarding the fee waiver within 60 days after notification of the denial and was informed how to appeal. The letter was mailed in regular U.S. mail. To date, no payment has been received by the Agency, nor has Mr. Payne appealed the denial of the fee waiver. Therefore, the case concerning Request 1 was administratively closed as of 6 January 1997.
15. On 18 September 1997, I responded to Mr. Payne's Request 2. (Attachment 6). The letter informed Mr. Payne, among other things, that his request for a waiver of fees for FOIA records on himself was denied and he was asked to pay $287.50 in advance within 30 days of the date of the letter for this FOIA search. The records responsive to this portion of his request are contained in subject matter files and are not retrievable by his name or a personal identifier (in other words, they are not PA records). To date, no payment has been received. In response to his request for "classification guidelines," the Agency asked for clarification. Mr. Payne was informed that this portion of his request would be held in abeyance pending his response within 30 days. Further, Mr. Payne was imormed that the fact of the existence or nonexistence of intercepted Iranian or Libyan messages and translations is currently and properly classified in accordance with Executive Order 12958. I explained that the fact of the existence or non-existence of such records was thus protected from disclosure under FOIA Exemptions 1 and 3 and set forth the Exemption 3 statutes. Therefore, this portion of his request was denied and he was provided with the Agency's appeal procedures.
16. In summary: Request 1 has been administratively closed for failure to either pay search fees or appeal the denial of a fee waiver; item 3 of request 2, the portion challenged by Mr. Payne in his complaint, has been processed by properly asserting FOIA Exemptions 1 and 3.
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IV. APPLICATION OF FOIA EXEMPTION 1
17. Section 552(b) (1) of the FOIA provides that the FOIA does not require the release of matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order. The current Executive Order which establishes such criteria is Executive Order 12958.
18. Information that would reveal either directly or indirectly, the degree of exploitation of a foreign government's communications by NSA is classified pursuant to Executive Order 12958, Sections 1.5(c) and 1.5(g), because disclosure would result in the impairment or possible defeat of NSA's COMINT efforts and the loss of valuable foreign intelligence information.
19. Executive Order 12958, Section 1.5(c), provides that information may be considered for classification if it concerns "intelligence activities, (including special activities), intelligence sources or methods, or cryptology." Section 1.6(g) provides that information may be considered for classification if it concerns "vulnerabilities or capabiiities of systems, installations, projects or plans relating to the national secunty."
20. I have reviewed Mr. Payne's request for intercepted Iranian and Libyan messages and translations between 1980 and 1996. To admit or deny that such records exist would reflect the vulnerabilities and capabilities of systems, installations, projects or plans relating to the national security. Further, to admit or deny such records exist would reflect intelligence activities and intelligence sources or methods. Therefore, I have concluded that to admit or deny the existence of such records is currently and properly classified SECRET pursuant to Executive Order 12958 and is exempt from disclosure in accordance with 5 U.S.C. 552 (b) (1).
21. Executive Order 12958, Section 1.2(c)(2), provides that SECRET shall be
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applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security. Because even admitting or denying the existence of the records sought would reveal information about NSA targeting, its sources, activities, projects, and capabilities, I have concluded that to admit or deny that such records exist is currently and properly classified SECRET. My conclusion is based on my understanding of current COMINT systems and how admitting or denying the existence of such information would have a detrimental impact on such systems. Further explanation of the harm to the national security cannot be discussed in this unclassified declaration without making an unauthorized disclosure of classified information. I will, if deemed necessary, provide an in camera ex parte classified declaration to the Court at its request.
V. FOIA EXEMPTION 3 AND
STATUTORY PROTECTIONS FOR NSA INFORMATION
22. The FOI A does not require the release of matters that are specifically exempted from disclosure by statute, provided that such statute requires that the matters be withheld from the public in sucn a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matter to be withheld. See 5 U.S.C. § 552(b) (3). NSA's COMINT efforts relate to its core functions and activities. These functions and activities are protected from public disclosure by several statutes. Congress has passed these statutes to protect the fragile nature of NSA's COMINT efforts including but not limited to the existence and depth of signals intelligence-related analytical successes, weaknesses and exloitation techniques. These statutes recognize the vulnerability of signals intelligence to countermeasures of a foreign power and the significance of the loss of valuable foreign intelligence information to national policymakers and the intelligence community.
23. Specifically, the National Security Agency Act of 1959, 50 U.S.C. § 402 note, Public Law 86-36, Section 6, provides that no law shall be construed to require
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the disclosure of any function of the NSA or of any information with respect to the activities of the NSA. Second, 18 U.S.C. § 798 prohibits the unauthorized disclosure of classified information (i) concerning the communication intelligence activities of the United States or (ii) obtained by the process of communication intelligence derived from the communications of any foreign government. The term "communication intelligence," as defined in Section 798, means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients. Third, the National Security Act of 1947, codified at 50 U.S.C. § 403-3 (c) (5), provides that the Director of Central Intelligence (DCI), as head of the intelligence community, shall protect intelligence sources and methods from unauthorized disclosure1.
24. Based on my review of the request and my understanding of NSA's COMINT systems, I have concluded that to admit or deny that such records exist is protected by Public Law 86-36, Section 6, because admittance or denial would reveal functions and activities of the NSA as described in paragraphs 4 and 6 of this Declaration; is prohibited by 18 U.S.C. § 798 because the admittance or denial would likely reveal classified information relating to the communication intelligence activities of the United States; and is protected by 50 U.S.C. § 403-3(c)(5) because the admittance or denial would likely impair intelligence sources and methods. I can neither admit nor deny that the records exist under each of the foregoing statutes because to do so would reveal the functions and activities of the Agency, which includes communications intelligence, and because it would likely impair intelligence sources and methods. To admit or deny the existence of the information, therefore, is exempt from disclosure pursuant to 5 U.S.C. § 552 (b) (3) because of the authority to withhold information found in Section 6 of Public Law 86-36, 18 U.S.C. § 798, and 50 U.S.C. § 403-3 (c) (6). Further explanation of the harm from admitting or denying the existence of the records cannot be discussed in this unclassified declaration without revealing information which the foregoing statutes protect from unauthorized disclosure. As noted above, I will provide the Court with an in camera ex parte declaration
_______________________
1. The term "intelligence community" includes the National Security Agency. 50 U.S.C. § 401a(4) (c).
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upon request.
VI. CONCLUSION
25. Mr. Payne's first request has been properly administratively closed for failure to pay search fees or to appeal the denial of a fee waiver. NSA's assertion of FOIA Exemptions 1 and 3 in response to Mr. Payne's second request, to the extent challenged by his complaint, is proper because to admit or deny the existence of the information sought is currently classified SECRET in accordance with Executive Order 12958 and, in addition, is protected pursuant to the three statutory privileges discussed above.
I hereby declare under penalty of perjury that the foregoing is true and accurate.
[Signature]
GARY W. WINCH
Director of Policy
National Security Agency
Executed this 2nd day of October 1997.
Attachment 1
[Note: this is from a poor quality fax]
Monday June 10, 1996 06:26
CERTIFIED - RETURN RECEIPT REQUESTED
DIRNSA
Attn: Brian Snow, R Division
National Security Agency
9800 Savage Road
Fort George G. Meade, MD 20755-6000
Dear Brian,
Let me refresh your memory.
I was project leader of the Missile Secure Cryptographic Unit
(MSCU) for Sandia labs from about '82 until late '86.
You designed the crypto algorithm for teh MSCU, and I having
access to it, analyzed it in preparation for its implementation
on a 8085 microporcessor and 8051 microcontroller.
The MSCU project was funded by NSA.
On one trip to NSA, FANX building, you gave a talk on reliability
of NSA's hardware KG crypto units.
You showed us schematics and devices of many KG units and told us
about field failure reasons.
You concluded by stating that redundant implementation had
stopped NSA's field failure problems - in the sense that "red"
data was never inadvertently released.
My impression of NSA's crypto algorithm technology, from the MSCU
and the schematics you showed us, was that it was quite ordinary
shift register and machine combinatoric technology. But simple
and reliable. And slow.
I went on to design and build the data authenticator of the
US/USSR CTST.
I wrote SAND91-2201 technical report which [w]as critical of NSA
"deficient" crypto work.
The seimic algorithm was designed by NSA employee Ronald
Benincasa.
Benincasa later released a modification that compensated for the
adverse algorithm procedure that any communication error caused a
data authentication failure.
In a DRAFT memorandum addressed to NSA deputy director James Kern
on June 21, 1989 I specifically enumerated 7 serious NSA generic
crypto algorithm deficiencies.
1
In one response to my June 21 letter NSA crypto employee Mark
Unkenholtz and Scott Judy released a new algorithm code named
GRANITE which attempted to correct for some of the deficiencies I
pointed out.
In fact, NSA senior employee Bob Delan even talked to me in
person about my concerns with NSA's deficient algorithms.
I recently read,
Crypto ban report may sink Clipper chip
by George Leopold
EE times, June 3, 1996
In amove that could sound the death knell for the
controversial Clipper chip, a long-awaited report
to Congress last week endorsed widespread commercial use
of encryption technology and rejected key facets of the
Clinton Administration's key-escrow scheme. ...
NSA's crypto advice is embarassing the Clinton administration.
And NSA may even be giving the government bad advice on other
crypto-related matters.
NSA has apparently created the impression that it possesses some
secret knowledge and techniques in crypto matters which those,
uncleared, are not able to see.
But I was cleared and understood what NSA was doing both
theorectically and practically.
I found no evidence that NSA possesses any special crypto skills,
and apparently hides its deficiencies behind the veil of
classification abuse.
To the contrary, I discovered generic deficient crypto work.
We brought this to the attention of NSA. Sandia even offered to
help NSA fix its deficient crypto work. And NSA attempted to
correct its deficient crypto work.
Therefore, under 5 USC 522b I request access to all technical
documentation on,
1 Benincasa's original NSS/USO algorithm,
2 Benincasa's revision of 1,
3 The Unkenholtz - Judy GRANITE algorithm,
4 Your MSCU algorithm,
2
[Fax fragment:]UN 19 '96 08:54 [balance illegible]
5 the Clipper algorithm,
6 the STU III alforithm.
I feel that published analyses of the above 6 algorithms will
show the Clinton administration, congress, and the public that
NSA possess no superior knowledge of crypto matters.
But, in fact, suffers at least the same problem as everyone else
in implementing field-reliable crypto equipment.
[Following paragraph has two hand-drawn vertical marks at left]
I am requesting this information for factual information on a
book I am writing on lack of ability and expertise,
mismanagement, fraud, waste, abuse, corrpution, violations of
law, classification abuse, clearance abuse, abuse of national
security interests, and cover-up of wrongdoing.
And killing Iranians and Libyans.
5 USC 552(b) permits withholding only properly classified
documents from a Freedom on[sic] Information Act (FOIA) request.
[Following paragraph has two hand-drawn vertical marks at left]
Therefore, I ask NSA to perform the mandatory declassification
review ordered by EO 12356 if NSA feels that any of the documents
are properly classified under the required published NSA
classification guidelines which I cannot find.
If there are any fees for searching for, or copying, the records
I have requested, please inform me before you fill the request.
As you know, the Act permits you to reduce or waive the fees when
the release of the information is considered as "primarily
benefiting the public." I believe that this requests[sic] fits that
category and I therefore ask that you waive any fees.
If all or any part of this request is denied, please cite the
specific exemption(s) which you think justifies your refusal to
release the information and inform me of your agency's
administrative appeal procedures available to me under the law.
I would appreciate your handling this request as quickly as
possible, and I look forward to hearing from you within 10
working days, as the law stipulates for the FOIA.
I enjoyed your practical talk and made mental notes.
I sat directly across the table from you at lunch in the FANX
cafeteria after your talk.
Sincerely,
[Signature]
William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
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Attachment 2
[Handwritten] J9496-96
PS [Illegible]
[Stamp][Illegible] JUL 1996
[Stamp][Illegible] JUL 1996
Monday June 10, 1996 06:49
CERTIFIED - RETURN RECEIPT REQUESTED
DIRNSA
Attn: Bruce Bottomley, S9
National Security Agency
9800 Savage Road
Fort George. G. Meade, MD 20755-6000
Dear Bruce:
In about '91 both you and NSA employee Donald Simard met with me
in the conference room of building 855, the seismic verification
building, at Sandia National Laboratories.
I brought to the meeting the US/USSR comprehensive test ban
Treaty seimic data authenticator.
Both you and simard raled against me to stop helping Sandia with
its crypto projects. You both told me that this was NSA's job,
not Sandia's.
You were a graduate student in the late '60s or early '70s at
Washington State University (WSU) in computer science.
You were on leave from the National Security Agency. (NSA).
I was a computer science professor at WSU at that time.
You told me at the meeting that you nearly told me at that early
time to discontinue my work on pseudorandom numbers. The reason
was that this area of work was the providence of the NSA.
In the evening you, I, John Sobolewski went for dinner at El
Pinto in Albuquerque. Sobolewski directed your master's thesis
work at WSU. Sobloewski was one of my Ph. d. Students.
Looking back over the years, I feel that there is evidence that NSA
attempts to illegitimately control academic research relating to
psudorandom numbers and machine combinatorics.
My National Science Foundation grant NSF DCR75-08822 for building
pseudorandom number and machine combinatoric subprogram libraries
was funded. Then funding ceased.
I learned in the early '90s from Bamford's book the Puzzle P[a]lace,
page 361, that Bruce Barnes, monitor of my grant, was to
discontinue funding in research NSA felt was its.
My concern about a possible improper role NSA excerts in
influencing the lives and careers of American citizens, prompts
me to inquire.
As you know, "The opportunities for an individual to secure
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employment, insurance, and credit, and his right to due process,
and other legal protections are endangered by the misuse of
certain information systems." Congress regulates the collection,
maintenance and dissemination of information agencies.
The Privacy Act establishes rules governing the use and
disclosure of personal information. The Act specifies that
information collected for one purpose may not be used for another
purpose without notice to or the consent of the subject of the
record.
The Act also requires that each agency keep a record of
disclosures of personal information.
This is a request under the Privacy Act of 1974, 5 USC 552a.
I request copies of,
1 All documents containing the name of William H. Payne,
Bill Payne, etc. between the dates of January 1, 1970
to June 10, 1996.
The privacy Act provides legal remedies that permit an individual
to seek enforcement of the rights granted under the Privacy Act.
Employees who fail to comply with the Act's provisions may be
subject to criminal penalties.
Please consider that this request is also made under the Freedom
of Information Act (FOIA), 5 USC 552b. Please provide any
additional information that may be availabe under the FOIA.
I am requesting this information for factual information on a
book I am writing on lack of ability and expertise,
mismanagement, fraud, waste, abuse, corrpution, violations of
law, classification abuse, clearance abuse, abuse of national
security interests, and cover-up of wrongdoing.
And killing Iranians and Libyans.
I have been unable to find NSA's mandatory published
classification guidelines.
So, under 5 USC 522b[sic] I request access to,
2 NSA's required published classification guidelines.
Simard was a one-year visitor at Sandia from NSA visiting Sandia
employee James Gosler.
Simard was an NSA Forth programming language expert. Simard also
told me that you were involved with the Forth programming
language.
I arranged a Forth language course of the employees of Gosler's
division.
2
Simard even taught part of the class. Gosler's employees told me
what they and Simard were doing for NSA/Sandia.
Virusing computer software and hardware.
Then Gosler attempted to conscript me into NSA's infowar.
The Baltimore Sun publsihed a sixteen page si-part series
between December 3-15,
No Such Agency
AMERICA'S FORTRESS OF SPIES
by Scott Shane and Tom Bowman
Part Four
RIGGING THE GAME
o Spy sting: Few at the Swiss factory knew the
mysterious visitors were pulling off a stunning
intelligence coup - perhaps the most audacious in the
National security Agency's long war on foreign codes.
tells of the case of Swiss Crypto AG, Hans Buehler and the spiked
crypto units.
Shane and Bowman write in Part Four of their series,
Engineers 'turning white'
IF CRYPTO AG WAS OFFERED a deal by NSA in return for
rigging its products, it would not be alone. The approach
to American firms usually comes during discussions with NSA's
export licensing office.
"It is not unheard of for NSA to offer preferential export
treatment to a company if it builds a back door into its
equipment," says one person with experience in the field.
"I've seen it. I've been in the room."
NSA's pitch varies. "Generally with high-level executive
it's an appeal to patriotism -- how important it is for us to
listen to the world," this source says. "With the midlevel
commercial types, it's, 'Do this and we'll give you
preferential export treatment.' To the real technical
people, it's, 'Why don't you do this?' And you don't realize
what's being suggested until you see the engineers are
turning white."
In addition to the carrot of export approvaL NSA also can
brandish a stick, this source says. "There's the threat"
You'll never get another export approval if you don't start
to play ball."
Journalist Loring Wirbel in the January 22, 1996 issue of
Electronic Engineering Times wrote,
3
Next in my in-basket was a set of reprints from the
Baltimore Sun from the paper's NSA series, which ran in
early December. The series reveals the setup by the NSA and
CIA of a new covert collection agency, the Special
Collection Service, and details the case of Hans Buehler, an
employee of Crypto A.G. who was thrown into an Iranian
Prison after getting snared in a Crypto/NSA sting against
that country.
Buehler phoned me from Zurich on December 31, '94. And we began
to put the story together.
The story appears to be developing into most audacious spy story
in terms of kiling human beings, in the history of "intelligence."
German only lost as killed about 28,000 and 5,000 captured out
of a force of about 39,000 WWII U boat personnel, reports Hoyt.
Some of these deaths were directly attributable to deciphering
enigma messages, Kahn reports.
The Longest War: The Iran-Iraq Military Conflict by Dilip Hiro
states on the cover text,
"How was Iraq - at a 3 to 1 disadvantage in population -
able to sustain an eight year war and arm one-tenth of its
entire population?" ...
"It had been a bloody and expensive conflict. Conservation[sic]
Western estimate put the total war dead at 367,000
- Iran accounting for 262,000 and Iraq 105,000. With more
than 70,000 injured, the total casualties were put at over
one million. The official figures, given a month later by
Iran's minister of Islamic guidance in a radio interview,
put the Iranian dead at 123,220 combatants, and another
60,711 missing in action. In addition 11,000 civilians had
lost their lives. Tehran's total of nearly 200,000 troops
and civilians killed was in stark contrast to Bagdad's
estimate of 800,000 Iranian dead." page 250.
It appears that NSA/US government was giving Iranian tactical war
messages to Iraq during the Iran/Iraq war.
And then there is the unfortunate case of former Iranian
opposition leader Baktiar's death by stabbing France.
NSA apparently knew in advance of the plot. But did not disclose
this information to French authorities until after Baktiar was
killed.
Therefore, under 5 USC 522b I request access to,
3 all NSA intercepted Iranian messages and translations
between January 1, 1980 and June 10, 1996,
4
4 all NSA intercepted Libyan messages and translations
between January 1, 1980 and June 10, 1996.
5 USC 552(b) permits withholding only properly classified
documents from a Freedom on[sic] Information Act (FOIA) request.
[Following paragraph has two hand-drawn vertical marks at left]
Therefore, I ask NSA to perform the mandatory declassification
review ordered by EO 12356 if NSA feels that any of the documents
are properly classified under the required published NSA
classification guidelines which I cannot find.
If there are any fees for searching for, or copying, the records
I have requested, please inform me before you fill the request.
As you know, the Act permits you to reduce or waive the fees when
the release of the information is considered as "primarily
benefiting the public." I believe that this requests[sic] fits that
category and I therefore ask that you waive any fees.
If all or any part of this request is denied, please cite the
specific exemption(s) which you think justifies your refusal to
release the information and inform me of your agency's
administrative appeal procedures available to me under the law.
I would appreciate your handling this request as quickly as
possible, and I look forward to hearing from you within 10
working days, as the law stipulates for the FOIA.
I ask that acknowledgement of my Privacy Act request be made
within 10 working days. And the records be provided within 30
days. Otherwise, I will consider my request denied.
For purposes of identification my social security number is 555-
44-3281.
Sincerely,
[Signature]
Bill Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
5
Attachment 3
[Stamp] 31 OCT 1996
[Note: Except for the date stamp above Attachment 3 is same as that at:
http://jya.com/nsasuit2.txt]
Attachment 4
NATIONAL SECURITY AGENCY
FORT GEORGE G. MEADE, MARYLAND 20755-6000
31 December 1996
Serials: J9496A-96
J9417A-96
Mr. William H. Payne
13015 Calle de Sandias
Albuquerque, NM 87111
Dear Mr. Payne:
I am the Deputy Director of the National Security Agency (NSA)
and the Freedom of Information Act Appeals Authority for this Agency.
As such, I am responaing on behalf of the Director to your 24 October
1996 letter in wnich you appeal two Freedom of Information Act (FOIA)
denials, disclss alleged classification abuse by NSA, and offer a
settlement.
You propose to settle with NSA for $200,000 in lost wages and
benefits for discontinuation of your "NSF" grant in 1975, as well as
for $2,000,000 in future salary, benefits, and money to complete work
proposed in your grant. There is no basis for NSA to assume any
responsibility for non-continuation of your grant nor for NSA to
pay for proposed work.
In addition, you allege that NSA hides deficiencies behind a veil
of classlfication abuse. I assure you that NSA only classifies information
which meets specific criteria for classification established in Executive
Order (E.O.) 12958. A careful review will be conducted of any information
found to be responsive to your FOIA requests. Unclassified information
will be released to you unless otherwise exempt under the FOIA.
In your letter, you appeal NSA's failure to respond wlthin the
statutory time limit to your 10 June 1996 Privacy Act (PA) request for
copies of documents containing your name and your 10 June l996 FOIA
requests for NSA's published classification guidelines, all NSA
intercepted Iranian messages and translations between January 1, 1980
and June 10, 1996, all NSA intercepted Libyan messages and translations
between January 1,1980 and June 10, 1996, and all technical documentation
on six algorithms.
The agency has a two-ttrack system for processing FOIA requests.
Requests are generally handled on a "first-in, first-out" method. However,
to allow for the prompt handling of uncomplicated requests, separate
queues or tracks exist for uncomplicated as opposed to more difficult
requests. This method of responding to requesters is advocated bv the
Department of Justice.
Serials: J9496A-96
J9417A-96
The Office of Policy is conducting a search for documents responsive
to your PA request for records containing your name. The request has been
placed in the queue for more complicated requests. The Director of Policy
will respond to you once the documents are reviewed for releasability. Your
FOIA requests for the various items listed above will require an Agency-wide
search. The Office of Policy is compiling the cost estimates from the
various offices which will need to be searched and will forward the cost
estimate to you under separate cover.
I assure you that our FOIA processing is intended to provide the
public with access to non-exempt information. Because the proscessing of
your request has not progressed to a point where there have been any
initial, substantive Agency determinations on the release or withholding
of responsive records, I can offer you no administrative remedy.
The FOIA permits you to treat this letter as a denial of your appeal,
and you are hereby advised of your rights under 6 U.S.C. § 552 to seek
judicial review of my determination. You may seek an order from the
United States District Court in the district in which you reside, in which
you have your principal place of business, in which this Agency's records
are situated (District of Maryland) or in the District of Columbia for the
production of information held by this Agency. Title 5 U.S.C. § 552(a)(4)(B)
sets out your rights in this matter with respect to such judicial action.
In your appeal Ietter you stated that the green return receipt
postcards were not returned from NSA indicating receipt of your requests,
and you noted that you did not receive any response from this Agency. Both
of your initial requests were sent to individuals at NSA who then forwarded
the letters to the FOIA office. One of the letters was forwarded by fax,
and so the green return receipt postcard was not received. The other letter
was forwarded in its entirety; however the postcard was inadvertently left
on the envelope in the case file. It is now enclosed. NSA sent post cards
as interim responses to you indicating the dates the FOIA office received
your requests, as well as the case numbers, and case backlog. Copies of
those postcards are also enclosed.
Sincerely,
[Siginature]
WILLLAM P. CROWELL
Freedom of Information Act/Privacy Act
Appeals Authority
Encls:
a/s
2
Attachment 5
NATIONAL SECURITY AGENCY
CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755-6000
Serial: J9417A-96
06 JAN 1997
Mr. William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
Dear Mr. Payne:
This is in response to your Freedom of information Act request
of 10 June 1996 for a copy of technical documentation on 1) Benin-
casa's original NSS/USO algorithm; 2) Benincasa's revision of 1;
3) the Unkenholtz - Judy GRANITE algorithm; 4) MSCU algorithm;
5) the Clipper algorithm; and 6) the STU III algorithm. In pro-
cessing your request, we will conduct an Agency-wide search of our
files. For fee assessment purposes you are placed in the "all oth-
er" category for this request.
Please be advised that your request for a waiver of fees has
been considered, and it is denied. This decision was made in ac-
cordance with the provisions of the FOIA that permit an agency to
waive or redcue fees if tha agency determines that such an action
would be in the public interest. In reaching this decision, sev-
eral factors were examined: (1) whether the subject of the re-
quested records concerns the operations or activities of the
government; (2) whether the disclosure is likely to contribute sig-
nificantly to an understanding of the specific government operations
or activities; (3) whether disclosure of the requested information
will contirubte to the understanding of the public at large, i.e.,
the general public must benefit from the disclosure; and (4) whether
you have a commercial interest the maginitude of which is suffi-
ciently large, in comparison with the public interest in disclo-
sure, that disclosure is "primarily" in your commercial interest.
The decision to deny your fee waiver request is based on item (3)
because you have not demonstrated either an expertise in the sub-
ject area or the ability and intent to disseminate information
should any be located and processed for release. The public,
therefore, would not be a primary beneficiary of the disclosure,
as intended by the Act.
We estimate that the costs involved in this search will be
approximately $1317.50. In accordance with the DoD Regulation
5400.7-R, the manual search fee is computed at $25.00 an hour for
Serial: J9417-96
professional personnel and $45.00 and hour for executive personnel.
If you authorize us to proceed with this search, ple~se be aavised
that 5 U.S.C. 552 (4)(A)(iv)(II) allows two hours of the search to
be completed at no cost to you. Therefore, your total cost will
be ap?roximately $1267.50. Our policy is to request advance pay-
ment prior to initiating the search. Be advised that NSA regula-
tions and Department of Justice guidelines preclude the conducting
of partial searches.
You should be aware that your agreeing to incur these fees
will not necessarily result in the disclosure to you of any infor-
mation. If records are found which are responsive to your request,
a detailed review to determine the releasability of the information
would follow. In our experience, records responsive to your re-
quest, if any such records exist, most likely would be classified
or otherwise exempt from release in accordance with the exception
provisions of the Freedom of Information Act. The application of
these exemptions to NSA information has been consistently approved
by the Federal Judiciary.
In addition, you should be aware that this estimate is only
for the fees associated with a search for documents responsive to
your resuest. It does not include the cost of duplicating any ma-
terial which may be released to you. As an "all other" requester,
you are entitled to 100 pages at no cost. Duplication fees beyond
that are assessed at $.15 per page in accordance with DoD Regulation
5400.7-R.
If you disagree with the decision regarding fee waiver, you
may appeal, within 60 days after notification of the denial, to the
NSA/CSS Freedom of Information Act Appeal Authority. The appeal
shall be in writing addressed to the NSA/CSS FOIA Appeal Authority
(N5P5), National Security Agency, 9800 Savage Road STE 6248, Fort
George G. Meade, MD 20755-6248. The appeal shall reference the
fee waiver denial and shall contain, in sufficient detail and par-
ticularity, the grounds upon which you believe waiver of fees is
warranted. The NSA/CSS Appeal Authority will respond to the appeal
within 20 working days after receipt.
Serial: J9417-96
If you desire an Agency-wide search for any records responsive
to your request, we will conduct a search upon receipt of a certi-
fied check or money order within 30 days, made payable to the Trea-
surer of the United States, in the amount of $1267.50.
Sincerely,
[Signature]
JAMES P. CAVANAUGH
Deputy Director of Policy
NATIONAL SECURITY AGENCY
CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755-6000
18 SEP 1997
Serial: J9496-96
Mr. WilliaM Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
Dear Mr. Payne:
This is in response to your 10 June 1996 Freedom of Information Act and Privacy Act (FOIA/PA) request for a copy of all records this Agency maintains on you from 1 January 1970 to 10 June 1996, all NSA intercepted Iranian/Libyan messages and translations between 1 January 1980 and 10 June 1996 and published classification guidelines. Both the PA and FOIA allow the public access to federal agency records, except to the extent that such records are protected from disclosure by one of a number of exemptions. The PA authorizes U.S. citizens and lawfully admitted aliens access to records the government maintains on them which are retrieved by name or other personal identifiers. The FOIA allows individuals access to all governrnent records, to include name-retrievable files and other types of government records.
NSA processes requests on a two-track queue: first-in. first-out and easy-hard. This method of responding to requesters is advocated bv both the Department of Defense, of which NSA is a component, and the Department of Justice. The first-in, first-out system is employed in fairness to all requesters. Regarding the easy-hard processing, we believe it is needless for a requester to wait a long period of time to learn that the Agency has no records responsive to his request or to obtain records that do not require a lengthy review. In your case, the Office of General Counsel located PA records responsive to that part of your request for records on you. These documents are being processed under the FOIA and PA and will require considerable review; therefore, this portion of your request does not constitute an "easy"case. It is in the "hard" queue and will be processed in turn.
Regarding all other records this Agency may maintain on you, we are prepared to conduct an Agency-wide search of our FOIA files for responsive records. For purposes of fee assessment, you have been placed in the "all other " category for this request.
Serial: J9496-96
Please be advised that your request for a waiver of fees has been considered, and it is denied. This decision was made in accordance with the provisions of the FOIA that permit an agency to waive or reduce fees if that agency determines that such an action would be in the public interest. In reaching this decision, several factors were exarnined: (1) whether the subject of the requested records concerns the operations or activities of the government; (2) whether the disclosure is likely to contribute significantly to an understanding of specific government operations or activities; (3) whether disclosure of the requested information will contribute to the understanding of the public at large, i.e., the general public must benefit from disclosure; and (4) whether you have a commercial interest the magnitude of which is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily" in your commercial interest. The decision to deny your fee waiver request is based on item (3) because the subject (all records on yourself) does not appear to be one in which there is public interest and you have not demonstrated an ability to disserninate information should any be located and processed for release. The public, therefore, would not be the primary beneficiary of the disclosure, as intended by the Act.
We estimate that the costs involved in a search of our FOIA files for records on you will be approximately $337.50. In accordance with DoD Regulation 5400.7-R, the search fee is computed at $25.00 an hour. If you authorize us to proceed with this search, please be advised that 5 U.S.C. 552 (4)(A)(iv)(II) allows two hours of the search to be completed at no cost to you. Therefore, your total cost will be $287.50. Our policy is to request advance payment prior to initiating the search. Be advised that NSA regulations and Department of Justice guidelines preclude the conducting of partial searches.
You should be aware that your agreeing to incur these fees will not necessarly result in the disclosure to you of any inforrnation. If records are found which are responsive to this portion of your request, a detailed review to determine the releasability of the information would follow. In our experience, records responsive to your request, if any such records exist, most likely would be classified or otherwise exempt from release in accordance with the exemption provisions of the Freedom of Information Act. The application of these exemptions to NSA information has been consistently approved by the Federal Judiciary.
Serial: J9496-96
In addition, you should be aware that this estimate is only for the fees associated with a search for documents responsive to your request. It does not include the cost of duplicating any records which may be releasable. You are entitled to 100 pages at no cost. All pages in excess of 100 are provided at a cost of $.15 per page as allowed by DoD regulation.
If you desire an Agency-wide search of our FOIA files for any records this Agency maintains on you, we will conduct a search upon receipt of a certified check or money order within 30 days of the date of this letter, made payable to the Treasurer of the United States, in the amount of $287.50.
Regarding that portion of your request for classification guidelines, we are unsure of the records you seek. Department of Defense Regulation 5400.7-R states that the requester must provide a description of the desired record so that the Governrnent is able to locate the record with a reasonable amount of effort and that the FOIA does not authorize "generalized requests." In accordance with that regulation, processing of this portion of your request is being held in abeyance pending a response from you, within 30 days of the date of this letter, clarifying this part of your request.
In addition, we have deterrnined that the fact of the existence or non-existence of NSA intercepted Iranian/Libyan messages and translations is a currently and properly classified matter in accordance with Executive Order 12958. Thus, this portion of your request is denied pursuant to the first exemption of the FOIA which provides that the FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations and are in fact properly classified pursuant to such Executive Order.
In addition, this Agency is authorized by various statutes to protect certain information concerning its activities. The third exemption of the FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, this portion of your request is also denied because the fact of the existence or non-existence of the inforrnation is exempted from disclosure pursuant to the third exemption. The specific
Serial: J9496-96
statutes applicable in this case are Title 18 U.S. Code 798; Title 50 U.S. Code 403-3(c)(5); and Section 6, Public Law 86-36 (50 U.S. Code 402 note).
As this portion of your request and your request for a fee waiver are being denied, you are hereby advised of this Agency's appeal procedures. Any person denied access to information or denied a fee waiver may, within 60 days after notification of the adverse determination, file an appeal to the NSA/CSS Freedom of Information Act Appeal Authority. The appeal shall be in writing addressed to the NSA/CSS FOIA Appeal Authority (N5P5), National Security Agency, 9800 Savage Road STE 6248. Fort George G. Meade, MD 20755-6248. The appeal shall reference the initial denial of access and or the fee waiver denial and shall contain, in sufficient detail and particularity, the grounds upon which the requester believes release of the information is required or waiver of fees is warranted. The NSA/CSS Appeal Authority will respond to the appeal within 20 working days after receipt.
Sincerely,[Signature]
GARY W. WINCH
Director of Policy
[End 3 October 1997 defendant motions, exhibit and attachments]