Gimme Some Truth
University of California PressCopyright © 2000 Jon Wiener
All right reserved.ISBN: 9780520222465
Early in 1981, shortly after John Lennon's murder on December 8, 1980, I filed a Freedomof Information Act (FOIA) request for any files the FBI had kept on Lennon. TheFBI released some documents in May. But of the 281 pages staff said they had reviewed,they withheld 199 (more than 70 percent) in their entirety. The documents were withheldmostly under three different FOIA exemptions: protection of the privacy of othersnamed in a document, protection of the identities of confidential sources, and "nationalsecurity."
The documents that were released included one page that had Lennon's name at thetop but was otherwise blacked out under the national security exemption (see p. 170); avariety of documents discussing the Nixon administration's effort in 1972 to deport Lennon,including a letter suggesting that Lennon be "arrested if at all possible on possession ofnarcotics charge," which would make him "immediately deportable" (see p. 289); andseveral pages, completely blacked out, from the Detroit FBI reporting on Lennon's appearanceat the "John Sinclair Freedom Rally" in Ann Arbor in December 1971 (see pp.110-119). Most interesting was a letter from J. Edgar Hoover to H. R. Haldeman, assistantto the president, dated April 25, 1972, that had been withheld in its entirety underthe national security exemption (see p. 240). Since Haldeman was the closest official toNixon, this document provided crucial evidence that the Lennon investigation was a politicalone, significant at the highest levels of the Nixon White House.
When these documents began arriving in my mailbox in the spring of 1981, Americanpolitics was beginning a shift of historic proportions toward the right. Ronald Reagan hadbeen elected in November 1980, bringing to power the Republican right wing that hadfailed to elect Barry Goldwater sixteen years earlier. The "Reagan Revolution" rested onan ideological commitment to "law and order," which Lennon had challenged, and a passionatehostility to "the sixties," which Lennon personified. The fight for the Lennon fileswould be a battle with the Reagan administration.
When the FBI informed me it was withholding 70 percent of the Lennon files, the letteralso said, "You may appeal to the Associate Attorney General." I did. My appeal arguedthat information about Lennon's plans to demonstrate against Nixon should not havebeen withheld under the "national security" exemption, a decision I called "arbitrary andcapricious." I argued that the other withheld material was "not properly covered by theexemptions claimed."
Reagan's assistant attorney general for legal policy, Jonathan C. Rose, responded six weekslater: "After careful consideration of your appeal, I have decided to affirm the initial actionin this case." The national security material, he wrote, was "being referred to the DepartmentReview Committee for review," but the rest had been "properly withheld."
Six months after that, the assistant attorney general informed me that the review committeehad completed its work and concluded that eight of the national security pagescould be declassified. But the FBI still wasn't going to release them. While those pageswere no longer being withheld on national security grounds, the bureau now claimedthey fell under other exemptions: personal privacy and confidential source information.So my administrative appeal produced little of significance. The assistant attorney general'sletter denying my appeal concluded, "Judicial review of my action on this appeal isavailable to you in the United States District Court for the judicial district in which youreside." It was time to find a lawyer.
The FOIA gives federal courts the power "to order the production of any agency recordsimproperly withheld from the complainant." That's what I wanted the courts to do. I askeda variety of organizations and attorneys for help in bringing an FOIA lawsuit against theFBI. Victor Navasky, editor of The Nation magazine, suggested four criteria for pickinga lawyer: find one you trust; who understands the case; who cares about it; and who willdo it for no money except an award of fees at the end. Courts had awarded attorney feesin some successful FOIA appeals, recently in an appeal for documents about VietnamVeterans against the War (VVAW), so money at the end remained a possibility.
In search of a lawyer, I talked to the Reporters Committee for Freedom of the Press,the Fund for Investigative Journalism, and the Fund for Open Information and Accountability("FOIA, Inc."). I talked to the Media Alliance in San Francisco and the Centerfor Investigative Reporting in Oakland. I talked to the American Historical Association'sCommittee on Access to Documents. I talked to the Playboy Foundation, well knownfor its defense of the First Amendment. I talked to Frank Wilkinson, who had sued theFBI for his file, the largest on any individual, and who headed an organization called theNational Coalition against Repressive Legislation originally established to fight HUAC.I talked to the San Francisco attorney who had been awarded fees in the VVAW case. Italked to prominent radical attorneys including Leonard Weinglass. I talked to Leon Friedman,who Victor Navasky called "the best FOIA attorney in the country."
All the attorneys told me the same thing that Leon Friedman did: "I took a couple ofthese, hoping to win, and got burned. I'm not in a position to do this kind of thing. Youcan't win on national security any more. Try the ACLU."
So I talked to Ramona Ripston and Fred Okrand of the ACLU of Southern California.Okrand, who was legal director, told me, "I don't know of anyone who'd be interested,but I'll ask around and if I come up with anyone, I'll have them call you." That was inJanuary 1983, and it didn't sound promising. But shortly thereafter, Okrand's successor,Paul Hoffman, called to schedule a meeting at which I would present my case to him andMark Rosenbaum, the ACLU general counsel.
At the meeting, I presented my documents and arguments, anxious that this was mylast best hope. Nervously, I showed that I had followed the ACLU's model letters requestingmaterial under the FOIA and that I had exhausted my administrative appeals. It turnedout that their biggest concern was not about the case but about their potential client, thepossible plaintiff: was I some kind of obsessed fan? or perhaps a burned-out hippie, livingin the past? or a conspiracy buff, eager to prove Reagan had ordered Lennon's assassination?They brightened noticeably when they learned I had been granted tenure six yearsearlier at the University of California, Irvine; that I had published not just in Radical America,Dissent, and Socialist Review but also in the American Historical Review and the Journalof Modern History, and the distinguished British scholarly journal Past and Present.They saw they would be able to argue that the plaintiff was a respected historian who soughtthe Lennon files as part of his research on the American past. Convinced that their potentialclient was a mild-mannered professor and not some kind of nut, the two of themdecided the ACLU of Southern California would take the case. Rosenbaum, who eventuallysucceeded Hoffman as ACLU legal director, served as the colead attorney throughoutthe next fifteen years of litigation.
In a 1998 interview, he discussed the ACLU's considerations in taking the case: "It wassimple to decide. The timing was coincident with a national frustration with the administrationof the FOIA, particularly in the areas of national security and informants. Agencieswere coming forward with boilerplate refusals. The law's presumption in favor of disclosurehad, for all intents and purposes, been dissolved, and the FBI in particular waschoosing what they wanted to disclose. If any case could take us back to legislative objectivefavoring disclosure, this would be the one." So the ACLU's first goal was not justto get the documents, but to challenge "systemic problems in implementing the FOIA."
The ACLU had a second goal: to publicize the value of the FOIA and expose the waysin which it was being subverted by the FBI. The files on Lennon provided an excellentexample that could win media attention.
Mark Rosenbaum is a remarkable figure. Known as both a brilliant legal strategist anda passionate and effective courtroom advocate, he graduated from the University of Michiganin 1970 and went on to Harvard Law School. In 1973, on the verge of dropping outbecause the classes seemed so uninteresting, Rosenbaum went to work as a clerk in thelaw office of Leonard Boudin and Leonard Weinglass. At that moment, they, along withRamsey Clark, happened to be representing Daniel Ellsberg, the government researcherwho was being prosecuted by the Nixon administration for leaking the Pentagon Papersto the New York Times. Rosenbaum describes the experience of working on the Ellsbergdefense as "the turning point of my life."
After the Ellsberg case, Rosenbaum went back to Harvard Law School and graduatedin 1974. He then joined the ACLU of Southern California as a staff counselhired bythe new executive director, Ramona Ripston. Stanley Sheinbaum, then head of the ACLUBoard of Directors, personally put up the $10,000 required to pay Rosenbaum's salary forthe first year. The year before taking on the Lennon FBI files case, he had gone to theSupreme Court, along with Harvard law professor Laurence Tribe, to challenge schoolsegregation in Los Angeles.
In subsequent years Rosenbaum would serve as colead counsel in the ACLU lawsuitseeking to overturn California's Proposition 187, the anti-immigrant initiative, and as thepoint man in the ACLU fight to maintain affirmative action programs. He also successfullydefended the constitutionality of the "Motor Voter" registration act, challengedby California governor Pete Wilson before the Ninth Circuit Court of Appeals. And in1995 he argued before the Supreme Court a case in which the Court held that residencyrequirements for Aid to Families with Dependent Children program recipientswere unconstitutional.
When the ACLU decided in 1983 to take the Lennon files case, Rosenbaum calledDan Marmalefsky, a Los Angeles attorney with the firm Hufstedler, Miller, Carlson &Beardsley (which later merged with Morrison & Foerster). Another brilliant young lawyer,Marmalefsky had graduated from the University of California, Berkeley in 1976 and fromYale Law School in 1980, where he received an award for his work in legal services. Hewent on to specialize in complex civil and criminal business litigation. In 1982 he hadserved as co-counsel for a group of Salvadorean refugees seeking political asylum, assistingwith an appeal to the Ninth Circuit. He also had experience with FOIA litigation,primarily from using it for discovery in criminal cases, starting with the defense of JohnDeLorean in 1982, and had worked with Rosenbaum pro bono on several other ACLUcases. Marmalefsky accepted Rosenbaum's offer to work on this one, and the two servedas co-lead counsel for the next fifteen years.
Marmalefsky told me that the decision to take a pro bono case was his alone and didn'trequire permission from anyone at his firm. "The basic question concerns time, balancingpro bono work against the amount of fee-generating work I do," he explained. "Becausewhen I take pro bono cases, I don't do it halfway. I treat them the same as any other mattersand devote the necessary timewhatever it takes."
The two had just won a case before the Supreme Court in 1983, an ACLU challengeto the California Penal Code section making it a crime for a person to refuse to provideidentification when asked by a police officer. The Court accepted their argument that thelaw violated the First Amendment and voided the statute for vagueness and overbreadth.
In 1985 he and Rosenbaum would bring to the Supreme Court a case challenging theconstitutionality of the enforcement of draft registration. He also litigated prosecutors'duty to present exculpatory testimony before a grand jury and the right of public accessto juvenile court proceedings. But Marmalefsky's practice wasn't all pro bono; in othercases he helped successfully defend Kirk Kerkorian in a $1 billion damage suit over thesale of MGM to Giancarlo Parretti in 1990, and as co-counsel, he won an $11 millionverdict for an investor defrauded in commodities trading.
When Rosenbaum and Marmalefsky went to work on the case, 69 pages out of 281 in theLennon FBI file were being withheld in their entirety under various claims, and portionsof dozens of others were also withheld. The FOIA not only allows judges to order agenciesto release withheld documents but also requires that if a requester brings a case beforea judge, "the court shall determine the matter de novo, and may examine the contentsof such agency records in camera to determine whether such records or any partthereof shall be withheld ... and the burden is on the agency to sustain its action." Equallyimportant was the section of President Reagan's executive order on classification, whichdeclared that "in no case shall information be classified in order to conceal violations oflaw ... [or] to prevent embarrassment to a person, organization, or agency."
Because the FBI cited three different exemptions under the FOIA for withholding mostof the information, challenging the withholding required litigating each exemption separately,and each had a separate body of case law to be studied and invoked.
When Rosenbaum and Marmalefsky sat down to discuss strategy, they conceded thatthe law was clear that we would never get some of the withheld information; the namesof confidential informants, for instance, were clearly protected. So we decided at the outsetto notify the FBI that we were not seeking those names, the names of FBI or nonfederallaw enforcement officers, or technical source symbol numbers. We were challengingthe claims made for withholding only some of the information: particularly the materialclaimed under "national security" and the information provided by confidential sources.We were not seeking the names of the informers, but we were seeking the informationthey provided.
The "national security" information provided the most obvious targethow could releaseof twelve-year-old information about a dead rock star possibly endanger the nationalsecurity?but was also the most difficult to obtain. Mark Rosenbaum told me that thebiggest problem in the case was that "courts fear divulging national security documents.They believe that courts should tread lightly in this area. They pay enormous deferenceto executive branch claims concerning national security."
Still, Rosenbaum and Marmalefsky had at least one significant avenue of attack. TheFOIA exemption covers any material "which reasonably could be expected to cause damageto the national security," but the task of determining what constitutes "damage" is assignedby the Act to the president, who issues executive orders on classification of documents.At the time my FOIA request was filed in 1981, the relevant executive order requiredfederal agencies considering FOIA requests to consider the public interest. The benefitto the public was to be balanced against the possible harm that could result from releaseof documents. If the public interest outweighed the possible harm, the documents hadto be released. That policy, the "public interest balancing act," had been established byPresident Carter. Since the public benefit from release of the Lennon files would beconsiderable, and the possible harm to the national security was small or nonexistent, theargument for releasing those pages was a strong one.
Disaster struck almost immediately. Between the submission of the original FOIA requestin 1981 and the filing of the lawsuit in 1983, President Reagan issued a new executiveorder on classification that eliminated the public interest balancing act. Under thenew Reagan policy, the FBI was required to withhold all documents "the unauthorizeddisclosure of which reasonably could be expected to cause damage to the national security,"period. The FBI was now permitted to withhold any information that might possiblyresult in damage to the national security, no matter how great the public interest thatwould be served by its release, and no matter how insignificant or unlikely the damage,as long as the "expectation" of damage was "reasonable." The ACLU team had lost itsstrongest argument for release of the national security documents in the Lennon file. Untila Democratic president could be elected, who would presumably restore the Carter-erapublic interest balancing act, we would face a serious obstacle to the release of thatmaterial. Nevertheless, a judge could find that the expectation of damage was not reasonableor that the files were being withheld improperly to conceal information that wouldembarrass the FBIand then order their release.
Wiener v. FBI was filed by Rosenbaum and Marmalefsky on March 22, 1983, in U.S.district court in Los Angeles. The lawsuit sought three things: an injunction ordering theFBI to release the documents, a written finding stating that the FBI "acted arbitrarily orcapriciously" in withholding the documents, and last but not least, an award of costs andattorney fees. Rosenbaum and Marmalefsky pointed out that under the law the burdenof justifying the withholding of documents rested on the FBI. But the ACLU team's strategyin the case was not to start by asking the judge to order the prompt release of the withhelddocuments; it was necessary to go through several preliminary procedural steps. Thefirst was to ask the court to order the FBI to provide an index of every document at issuealong with "a detailed justification covering each refusal to release agency records." Oncethe FBI had stated its justifications document by document, each justification could bechallenged and shown to be inadequate, and on that basis the judge could then order thebureau to release the documents.
This was the established procedure: the bureau provided the plaintiffs with an affidavitknown as a "Vaughn index"the court's term for the document itemizing the government'sjustifications for refusing to disclose documents. The purpose of the index wasto provide the FOIA requester with a meaningful opportunity to contest the FBI's argumentsin court. When the D.C. Circuit Court of Appeals established the Vaughn indexprocedure in 1973, it addressed the basic dilemma facing FOIA plaintiffs, a dilemma wefaced: how to challenge a government decision to withhold a document when the contentsof the document remained unknown to the challenger? The plaintiff's lack of knowledgeabout the contents of the withheld document "seriously distorts the traditional adversarynature of our legal system's form of dispute resolution," the circuit court explained."Ordinarily, the facts relevant to a dispute are more or less equally available to adverseparties." An index was necessary, the court argued, to "assure that a party's right to informationis not submerged beneath governmental obfuscation and mischaracterization."Preserving the adversary nature of the proceedings would turn out to be the key to theNinth Circuit Court of Appeals ruling against the FBI nine years after the case was firstfiled.
Wiener v. FBI was assigned to Judge Robert M. Takasugi in Los Angeles district court.Born in Tacoma, Washington, in 1930, Takasugi at age twelve was interned in a wartime"relocation camp" for three years, along with the entire Japanese American populationof the West Coast, for the duration of World War II. After the war he went to UCLA as anundergraduate in the mid-fifties, then served in the army for two years, and graduatedfrom University of Southern California Law School in 1959. He worked in a variety ofjudicial positions and was appointed to the federal bench in 1976.
We thought that his wartime experience might make him more sensitive to the issue ofgovernment abuse of powerespecially after Judge Takasugi called his wartime internmentexperience "an education to be fair" in May 1995 at a gathering sponsored by theJapanese American National Museum and the Los Angeles Jewish Federation. Along withfour other Japanese American judgesincluding Lance Ito, who at the time was presidingover the O. J. Simpson criminal trial, Takasugi recalled indignities like sleeping onstraw mattresses, sharing toilets with hundreds of other people, and using tin cans to coverknotholes in the thin walls of the wooden barracks to keep out the dust. Along with theothers, he described how the experience of internment had led him toward a career inlaw and how it sensitized him to civil liberties issues. "It has certainly affected me 26 hoursa day," Judge Takasugi told the audience. All the judges at the event warned of the dangersof anti-immigrant hysteria; Judge Takasugi "spoke caustically of the stereotypic sing-songimpersonation of Judge Ito by Senator Alphonse M. D'Amato, Republican of NewYork, in a recent radio interview, calling it `a disgrace.'" Judge Takasugi also told abouthow his father lost his home and property as a result of the wartime "relocation" programand died at age fifty-seven of a stroke, brought on, the judge said, by "feelings of helplessness"at the Tule Lake internment camp.
The gathering coincided with the opening of an exhibit about the internment program,which included a reconstructed barracks moved to the museum from the Heart Mountaininternment camp site in Wyoming. Reporters asked Judge Takasugi whether it resembledthe place where he had lived. "Yeah, exactly," he replied, "but the floors weretar, so on a hot day we started sinking." A photographer asked him if he was willing tostep inside. "I don't want to go back in, really," Judge Takasugi said. "I'll take the loyaltyoath."
While the Lennon files were being debated in Judge Takasugi's courtroom, a movementfor "redress and reparations" for Japanese Americans interned during World War IIwas gaining strength in national politics. In 1988 Congress officially apologized and authorizedreparation payments to victims of the internment program. It seemed as if JudgeTakasugi's youthful experience of government abuse of power might make him more sensitiveto the issues in the Lennon FBI files case.
THE FBI'S ARGUMENT The FBI was represented in the case by Peter Osinoff, an assistantU.S. attorney. He was a thirty-one-year-old New York native who had graduated magnacum laude from Yale in 1973 and then from Stanford Law School.
The FBI in due time produced its Vaughn index to the Lennon files. But instead ofproviding specific arguments justifying each deletion from the FBI file, the bureau submitteda master list of justifications for withholding materiala codebook. The blacked-outpassages on file pages were marked with marginal notations referring to particularjustifications in the codebook. Obviously the codebook justifications were generic. Itturned out that the FBI submitted the same master list of justifications in all FOIA litigation.Mark Rosenbaum wrote in a letter to the FBI attorneys in September 1983 thatthe explanation in the codebook "is really not more than a generalized elaboration of theexemption asserted: it is mainly just wordier." Despite the vagueness and generality of thecodebook, the courts had been sympathetic to the FBI's use of boilerplate justifications.Rosenbaum and Marmalefsky decided that challenging the codebook would be the firstelement in their strategy to win release of the Lennon FBI files.
The FBI's Vaughn index of the Lennon file was accompanied in June 1983 by the "Declarationof Robert J. Chester," supervisor of the FBI's FOIA Section, which defendedthe FBI's procedures for all exemptions, except national securityfor that the FBI submitteda separate statement by another official. Agent Chester explained that the namesof FBI agents were being withheld because targets of FBI investigations "carry grudgeswhich last for years and [these people] seek any excuse to harass the responsible Agent."Recognizing that the target of the investigation in this case was dead and the plaintiff wasa mild-mannered history professor, Chester conceded that "in the instant case, there isno apparent evidence that plaintiff constitutes a threat to law enforcement personnel."That was deeply gratifying. Nevertheless, he added, "in light of the highly publicized natureof this particular case, it is important that Agents' identities be protected even absentevidence of potential physical harm to their persons."
Chester provided an equally rich justification for withholding information provided byconfidential sources: "Informant identification has become a paramount considerationto members of the criminal and subversive elements." Again, he had no evidence that theplaintiff in this case belonged to those elements. But that did not prevent him from continuingto argue: "Members of the criminal and subversive elements do not require proofbeyond a reasonable doubt when they seek to ferret out the individual who has cooperatedwith law enforcement authorities."
The FOIA permits the FBI to withhold confidential source material only if it had beengathered as part of a legitimate law enforcement purpose; thus it was necessary for theFBI to state the law enforcement purpose of the investigation of Lennon. The Chesterdeclaration did that: the FBI had investigated Lennon in 1972, Chester told the court,"to determine if John Lennon was in violation of Federal law," namely, "the National SecurityAct of 1947."
This was a strange claim, one that would turn out to be helpful for our case. The NationalSecurity Act of 1947 created the Central Intelligence Agency. Congress was concernedat the time about whether the proposed CIA would serve the president as "a Gestapoof his own if he wants it," in the words of a Republican congressman from Ohio. So thesecurity act made it clear that the CIA would be prohibited from "investigations insidethe continental limits of the United States" and would not have "police, law enforcement,or internal security functions." To claim that law as one Lennon was suspected of violatingwas strange not only because it wasn't a criminal statute but also because eventuallyit would be revealed that the CIA had indeed compiled files on Lennon's domesticpolitical activities, in violation of the very same National Security Act of 1947.
The FBI codebook for the Lennon file divided "national security" material into elevensubcategories, starting with "identity of a foreign government ... engaged in a cooperative,confidential relationship with the United States" and ending with "intelligence informationgathered by the United States about or from a foreign country, group or individual."The FBI's arguments regarding national security deletions from the Lennon fileswere presented in a court declaration by Special Agent Robert F. Peterson, supervisor ofthe National Security Affidavits Unit at FBI headquarters, who reported that he had been"designated by the Attorney General of the United States as an original Top Secretclassification authority."
Information provided by a national security confidential source had to be withheld, Petersondeclared, because disclosure could permit "hostile entities" to assess "areas and targetswhich may have been compromised." But who were the "hostile entities" in this case?Surely not the ACLU. Release of the information could also lead to exposure of the peoplewho provided it, threatening them with "loss of life, jobs, friends, status, etc." This wasthe problem with the codebook approachnone of this boilerplate argument had anythingto do with the Lennon file.
The most significant part of Peterson's declaration concerned the category "foreign governmentinformation," which the FBI claimed as the basis for withholding numerous documents.These had to be withheld, Peterson argued, "due to the delicate nature of internationaldiplomacy." Release of the foreign government information in the Lennon filecould lead to "political or economic instability, or to civil disorder or unrest" in the foreigncountry that supplied the information, he declared. It could "jeopardize the lives,liberty or property" of U.S. tourists visiting the country. It could "endanger United StatesGovernment personnel there." Then came the most remarkable claim made in fourteenyears of Lennon file litigation: release of foreign government information in the Lennonfile, Agent Peterson declared, could "lead to foreign ... military retaliation against theUnited States."
Britain was obviously the source of the "foreign government information," but itseemed unlikely that British citizens would attack visiting American tourists or governmentpersonnel in retaliation for the release of information gathered by British authorities.British economic instability might be a problem, but it was unlikely to be exacerbatedby the release of information about Lennon. Most important, we felt confident thatthe Thatcher government would not engage in military retaliation against the UnitedStates if our government released British information on Lennon.
What could the John Lennon FBI file contain that had been provided by the Britishgovernment? The Nixon administration had begun deportation proceedings againstLennon in 1972 after learning of his antiwar and anti-Nixon activities in an election year.This is the point at which "information gathered by the United States ... from a foreigncountry" enters the story. The Nixon administration claimed as the legal basis for its effortto deport Lennon his 1969 conviction on misdemeanor charges of cannabis possessionin Britain. Presumably the FBI's Lennon file contained information from the Britishgovernment regarding that event.
Thus in response to an FOIA request for the FBI's Lennon file, the classificationofficerthe man with the magic markerblacked-out passages that originated with theBritish government and marked them with the code referring to "foreign relations or foreignactivities of the U.S."; the reader then looked up the code in the codebook and foundthe official description of "damage to the national security reasonably expected to resultfrom unauthorized disclosure"; among the boilerplate list of possible damages, the FBIincluded "foreign military retaliation against the U.S." To add insult to injury, SpecialAgent Peterson also declared that he had made "every effort" to be "reasonable" and provide"sufficient detail" so that the court could "rationally determine" that the FBI wasright.
The Lennon file also contained five documents originating with the CIA. These werepart of the FBI's file on Lennon because the FBI had received them from the CIA. Confrontedby an FOIA request, the FBI sent these documents back to the CIA so that theagency could decide whether to release or withhold them. The official CIA justificationfor withholding this material was prepared by Louis J. Dube, the information review officerfor the Directorate of Operations of the CIA. In his affidavit, submitted in December 1983,he declared that he was acting on "advice of the CIA Office of General Counsel." "As asenior CIA official," he wrote, in a chain of command "running from the President of theUnited States to the Director of Central Intelligence ... to me, I hold original classificationauthority at the TOP SECRET level." Dube declared that, in document HQ-1, a "oneword CIA cryptonym" was being withheld under both the (b)(1) national security exemptionas well as the (b)(3) intelligence sources and methods exemption (see p. 153).
A cryptonym, Agent Dube explained, is a code word "used to conceal the true natureor identity of some intelligence activity." The use of cryptonyms "provide[s] an additionalmeasure of security in the event a document comes into the possession of a hostile foreignpower." If the cryptonym used in the Lennon files were disclosed, "the intelligenceservice of a hostile foreign power" would be able to "divine the nature and purpose of theCIA activity" in question. But it was obvious to any power, hostile or not, that the purposeof the CIA activity in question had been to gather information about John Lennon'spolitical activities. (In 1987, the cryptonym would be released; see chapter 3.)
The CIA released one of its Lennon documents in September 1984a teletype datedFebruary 8, 1972, reporting on Lennon's plan for a "caravan of entertainers who will followU.S. primaries and raise funds for local radical groups along the way" (see p. 157).About half of it was blacked out under the national security exemption, but one word inthe heading was released: "MHCHAOS."
Rosenbaum and Marmalefsky agreed that the word rang a bell, and since I was the historian,I was dispatched to the UCLA Research Library reference room. The news indicesthere were clear: "MHCHAOS" was a secret, illegal CIA program of surveillance of domesticpolitical dissent, a violation of the CIA charter that had been revealed in 1976."MH" was a CIA code indicating worldwide area of operations. The CHAOS programhad been launched in August 1967, under Director Richard Helms, by James Jesus Angleton,the CIA's chief of counterintelligence, and headed by Richard Ober, a counterintelligencespecialist in the Directorate of Plans, Harvard '43. Ober's tasks had alreadyincluded developing CIA strategy to respond to the revelation by Ramparts magazine inFebruary 1967 that the CIA had been secretly funding the National Student Associationfor fifteen years. Under the CHAOS operation, the investigation of Ramparts was expandedto cover the entire underground press and given "highest priority." To keep the illegal activityfrom being leaked by CIA employees, the operation was housed in the basement ofCIA headquarters in Langley, Virginia, in specially shielded vaults that blocked electroniceavesdropping.
The CIA sent Operation CHAOS domestic intelligence reports on political dissent firstto President Johnson and later to Nixon, as well as to Henry Kissinger and John Dean,counsel to the president. Under Nixon, the CHAOS program was expanded to sixty agents,who, according to Angus MacKenzie, "became the Nixon administration's primary sourceof intelligence about the antiwar leadership."
CIA Operation CHAOS was revealed in 1976 by Representative Bella Abzug's HouseSubcommittee on Government Information and Individual Rights. The CIA director atthe time was George Bush, who conceded in congressional testimony that "the operationin practice resulted in some improper accumulation of material on legitimate domesticactivities." He defended the agency, declaring that "only a very small fraction of reportingon the activities of American citizens in the US was done by the CIA." Abzug proposedthat individuals who had been targets of Operation CHAOS be notified by the CIAand given a chance to review their dossiers. Bush replied that notification was unworkableand proposed instead that the CIA "destroy ... all the information which was improperlycollected under the so-called CHAOS program." Because of congressional insistence,Bush agreed that the FOIA would make Operation CHAOS files available underthe Act. Thus the appearance of the CHAOS memo here (see p. 157).
Just eight months after the ACLU suit was filed, the government changed attorneys. PeterOsinoff, who had represented the FBI, left the U.S. Attorney's Office for private practice,and the Justice Department reassigned the case in November 1983 to Stephen D.Petersen, a forty-year-old graduate of the University of Iowa and Iowa Law School. DanMarmalefsky promptly wrote Petersen, expressing "concerns with the delays in the FBIresponse to this lawsuit," protesting that two months had passed since he had requested amore specific Vaughn index. Fourteen years later Rosenbaum and Marmalefsky wouldstill be arguing many of the same issues.
The FBI accounting of file pages in their Vaughn index included two unexpected andpreviously unknown sets of materials: Lennon files from the FBI field office in Washington,D.C. (as opposed to headquarters) and in Houston. When filing FOIA requests, it is vitalfor requesters to contact not only FBI headquarters in Washington, D.C. but also FBIfield offices in cities where investigations were conducted. The field office files containthe raw material from investigations, while headquarters files contain mostly summaries.I had requested Lennon files from field offices in New York, Detroit, and Los Angeles butnot from Houston or Washington, D.C.; nevertheless the FBI provided copies of thosedocuments.
A careful examination of the released pages in Lennon's New York file indicated that aLennon file had also been opened in Miami, yet no Miami file had been produced alongwith those from Houston and Washington, D.C. So in 1983 I filed a new FOIA requestfor Lennon files in the Miami field office, providing the Miami file number for Lennonthat appeared on New York FBI memos. In May 1983 I received a reply: "A search of theindex to the central records system of the Miami Office reveals no information identifiablewill your request." As for the file whose number I requested, it "was destroyed in connectionwith the routine file destruction program during September of 1977."
The Miami file could have been an important one; it may have contained evidence ofthe government's efforts to set up Lennon for a drug bust. A memo from the New YorkFBI dated July 1972, released in the first batch of pages, suggested that "Miami shouldnote that LENNON is reportedly a `heavy user of narcotics'.... This information shouldbe emphasized to local Law Enforcement Agencies covering MIREP, with regards to subjectbeing arrested if at all possible on possession of narcotics charges" (see p. 289).("MIREP" was FBI newspeak for the 1972 Miami Republican National Convention.) TheMiami Lennon file that the FBI said it had destroyed might have contained further informationabout that element of the FBI's harassment of Lennon.
The ACLU team raised the issue of the Miami file with FBI attorneys. Petersen repliedin November 1983 that the statement provided by the Miami FBI "was a statutorilysufficient response." He added, "I hope this information is responsive to your letter."
The Miami Herald picked up the story and quoted local FBI spokesman Joe Del Campoconfirming that "there once was a Lennon file in Miami, but there is no way to knowwhat was in it." He explained that "the local office has a carefully regulated file destructionprogram, in which outdated closed files are destroyed at specified intervals." Yetnone of the other offices with Lennon files had destroyed theirs.