Against it Before He Used it: Joe Biden and the Intelligence Identities Protection Act

This week former CIA case officer John Kiriakou was charged with two counts of violating the Espionage Act, one count of making false statements (Kiriakou is accused of having lied to the CIA's pre- publication review border about portions of his books being “fictionalized”), and one count of violating the Intelligence Identities Protection Act. 

Passed in 1982, the Intelligence Identities Protection Act was designed to deter and punish people like Philip Agee, a CIA officer turned rogue, who published a book on the agency (Inside the Company: CIA Diary) and a newsletter titled “CovertAction Information Bulletin,” in which he outed CIA case officers stationed abroad. So far, there has only been one prosecution under the Intelligence Identities Protection Act, that of Sharon Scranage who was charged under the act  in 1985 because she passed information to her Ghanaian boyfriend who turned out to be a Ghanaian intelligence operative.

Lying to the federal government is frequently punished and the Obama's use of the Espionage Act to suppress whistle blowers is almost routine. However, neither fact reduces the irony of the Obama-Biden administration's use of the Intelligence Identities Protection Act to prosecute a CIA case officer's whistle blowing to the media. 

The irony of Kiriakou's situation arises from the fact that as Senator Biden, Joe Biden opposed the Intelligence Identities Protection Act on the grounds that it would deter legitimate media investigations into national security issues. As shown by Biden's April 6, 1982 op-ed in the Christian Science Monitor. Titled "A Spy Law That Harms National Security," Biden worried that the language as it stood then and as it passed would he called supporting the Act a "mistake" that would hinder[] the press from performing this vital function”

because 

"the mere threat of such prosecution would be enough to dissuade many news organizations from pursuing stories of this kind, out of fear of the legal entanglements and cost which might result even if a reporter is finally acquitted”

and this would 

"curtail legitimate journalistic scrutiny of a particularly important and sensitive area of government, creating the possibility that wrongdoing or wrong- headedness could flourish in that area, unchecked by public awareness.”

All of which Biden argued, posed a real risk to American national security.

While opposition to the Intelligence Identities Protection Act was sparse (only 32 voted against in the house, while Biden was one of only 4 senators to oppose in the senate. He was joined by Daniel Patrick Moynihan, Gary Hart, and one Republican Charles Mathias), it did exist. After the bill passed the Senate, Moynihan warned that:

"It now appears that we will soon have a law which, while making it easier to convict scoundrels, will chill the exercise of First Amendment rights." (1)

It seems Biden and Moynihan are being proved right. 

(1) "Bill to Penalize Uncovering of Agents Passed by Senate," New York Times, 6/11/1982. pg a20

WikiLeaks is Not a FBI Target, Says DOJ, FBI

After receiving a ”no records” response from the FBI in reply to a FOIA request I had submitted for FBI records pertaining to WikiLeaks, I had an appeal submitted to the Department of Justice's Office of Information Policy. Below is the DOJ's reply:

DOJ Response to an Appeal for Wikileaks Records

The DOJ states that there are no FBI WikiLeaks files and this means that the FBI has never targeted WikiLeaks as an organization.

I suspect that the FBI has filed WikiLeaks material away in the files of individuals such as Julian Assange, Bradley Manning, and other prominent WikiLeaks figures. By doing so, it keeps the material out of the hands of the general public and media because the FBI can invoke b(6), b(7) exemptions to Glomar (i.e. neither confirm, nor deny the existence) the material unless the individual submits a Privacy Act request, dies, or is convinced to sign a waiver and allow a third party to acquire material. In short, it might be 50 years before WikiLeaks material is available to the general public through FOIA or Mandatory Declassification Review requests. 

I also think that lesser amounts of WikiLeaks material might be obtainable through FOIAing for information on attacks done by Anonymous on behalf of WikiLeaks.

The TSA EPIC Fails on FOIA

As you can see, it took the Transportation Security Administration eight months (*) to respond to my FOIA request for a simple press kit. I am not sure if that is worst than the two months it took them to churn out a response to my request once they realized that there was no TSA press kit. With search skills like this, I have no full faith and confidence in their ability to stop terrorism.

TSA Has No Media Kit Letter

(*) This request was submitted and responded to in either 2010 or 2011. I misplaced the letter I received from the TSA and then I lost the file. The year is not particularly relevant given it occurred within the same calender year.

Herbert Yardley : The NSA Hero Who Was a Spy

There is hope for Bradley Manning yet. That statement seems odd given that he's not challenging the facts of his case and, instead, is opting for a mitigation strategy. However, as the saga of Herbert O. Yardley shows, treasonous heels can become heroes if the evidence of their guilt is hidden by classification, buried in document dumps, and obscured by the passage of enough time. This was proven in 1999 when Yardley became an inaugural member of the NSA's Hall of Honor.

Well documented by James Bamford's books and the NSA's own website, Yardley "served as a cryptologic officer with the American Expeditionary Forces in France during WWI. In the 1920s he was chief of MI-8, the first U.S. peacetime cryptanalytic organization, jointly funded by the U.S. Army and the Department of State. In that capacity, he and a team of cryptanalysts exploited nearly two dozen foreign diplomatic cipher systems. MI-8 was disbanded in 1929 when the State Department withdrew its share of the funding." In 1931, in need of funds, Yardley published 'his memoirs of MI-8, "The American Black Chamber." In this book, Yardley revealed the extent of U.S. cryptanalytic work in the 1920s."

What Bamford did not know or chose to leave out his books was the fact that Yardley sold out the American Black Chamber to the Japanese Empire for 7,000 in 1930. This fact was uncovered by Ladislas Farago during his research for The Broken Seal: The Story of Operation Magic and the Pearl Harbor Disaster, a book on cryptography relation to Pearl Harbor. The story spawned an CIA investigation. Below is the 12/12/1967 Memorandum for the Deputy Director of Central Intelligence from Walter Pforzheimer confirming the allegations. 

CIA Herbert Yardley Spy Memorandum

Nor was the CIA alone in launching an investigation. The National Security Agency conducted its own inquiry into Yardley's conduct which "tend[ed] to strongly to substantiate Farago's basic claim" though it also found that "much of the rest of his account of the transaction either could not be confirmed or was found to be wrong."(1) This tendency to be wrong was undoubted a reason that David Kahn and others disbelieved his allegations.(2) Eventually, the controversy as well as Yardley's memory faded from public memory creating the space necessary for his 1999 Hall of Honor Induction.

(1) [redacted], "The Many Lives of Herbert O. Yardley, Cryptologic Spectrum, Fall 1981 - Vol. 11, No. 4 , pg. 26 Read here
(2)Ibid., pg 28 fn. 68

A Father-in-Law With Benefits: How David Petraeus Advanced His Career

 I thought this would be as good a time to remind or teach everyone that David Petraeus' ascent is due, in part, not to his martial prowess, but his willingness to kiss or sleep his way up to the top.

When he was a mere West Point cadet, Petraeus conveniently fell in love with Hollister Knowlton, the daughter of William A. Knowlton, then West Point Commandant, providing an early demonstration of what Colonel Andrew J. Bacevich (ret.) describes as Petraeus' “considerable talent for cultivating influential figures, both in and out of uniform, who might prove useful in advancing his own prospects.” (1) Fortunately, for Petraeus, Knowlton wasn't completely through a long, successful career. After leaving West Point, Knowlton became the chief of staff United States European Command. After finishing Ranger School, Petraeus followed his father-in-law to Europe; he where was assigned to the 509th Airborne Battalion Combat Team.

In some ways just as important as her status as the West Point's Commandant's daughter, was Hollister Knowlton's status as a descendant of a Mayflower traveler.(2)  This a status that is far more important to many American blue bloods than that of “Director of the CIA” or “General.”

(1)Andrew J. Bacevich, Washington Rules: America's Path to Permanent War, (New York: Metropolitan Books, 2010), 193

(2) Miss Knowlton Officer's Bride At West Point, New York Times, 7/7/1974, pg..40

The FBI Response to an OpenBSD FOIA

As ably documented by John Young on Cryptome, there was a long-running, slow-burning controversy over claims that OpenBSD had flaws built into by individuals operating at the behest of the FBI. Reading through the Cryptome documented exchanges, I failed to see anyone considered contacting the FBI, either directly or via FOIA request, on the matter and reporting a response. (1) So I had my cut- out fire off  a request for records relating to the non-profit created around the OS. Below is the no record response the Bureau sent back. Take it for what you will.

FBI No Records Response Letter RE: BSD Foundation

Since Netcraft has confirmed that BSD is dying, I doubt this will be an issue much longer.

(1) Someone did contact a former FBI agent via Twitter and received a denial. 

Ivan Saric: A Short Biography

Ivan Saric's INSCOM file (or part of it). For some reason it is not included on the finding aids of the RG 319 IWG records. I acquired through a redirected FOIA request to INSCOM. I suspect because, according to this release, it only contained a brief half-paged blurb worth of biography. The page also a short biography of Gregorij Rožman, bishop of Ljubljana and collaborator with the Nazis, who, like Saric, escaped justice after the war.

Ivan Saric's NARA/ INSCOM File

Fun and Games With the CIA's CREST Database

CREST or the the CIA Records Search Tool is a system used by the CIA to make available declassified records since 2000. It  is located at NARA II in College Park, Maryland. For years, this system and the records contained with were available on just four computers housed on the second 3rd floor of the NARA II building. The reasons this limited access were, according to Mother Jones's reporting: fear of hackers altering the information, an implict desire to keep foreign intelligence from accessing those files, and a general wish to prevent mischief.

This has changed. The "CIA has now also begun to include documents images in addition to the metadata for a select group of documents referred to as the "Best of CREST: (BOC)." This means that some documents will be visible while others will be mentioned but you'll have to FOIA them to see them.

Metadata Leaks Still Secret Information

This inclusion of "metadata" makes for interesting reading. Recently, I discovered that metadata can compromise information the CIA wants withheld on national security or privacy grounds. Here is a safe example of such. Enter the name "Ann Caracristi" (she was the first female deputy director of the NSA) into the CREST search engine. You get back one document.

Now, request that document from the CIA. Here's what you get. Notice how Ms. Caracristi's name is withheld. Oops.
Caracristi Turner Letter

Half-Baked Declassification

Another problem with CREST is that it's subjected to the same half-baked CIA declassification standards as any FOIA, MDR, or statutory-required release. Here are two versions of a 3/14/1984 memorandum from Herbert E. Meyer to the Director of Central Intelligence,the deputy Director of Central Intelligence, and the Chairman of the National Intelligence Council titled: “Abortions in the Soviet Bloc: What They Mean.” The first version was released in August 2008. The second version was released in December 2008.

Here is the August 2008 version :

3/14/1981 Memo on Warsaw Pact Abortions

Here is the December 2008 version.

Soviet Abortion Limited Redactions

The August 2008 version has the following redactions:

A name or names on the first page is redacted while on the second page, Herbert E. Meyer's signature and another name are withehld.  The third page is withheld in its entirety.

The December 2008 version it features fewer redactions. As you can see, the name withheld in the August 2008 edition is revealed. Meyer's signature is revealed though the name is still redacted. Only two names are redacted on the third page.

None of the Really Good Stuff is There

CREST and "Best of CREST" has a lot of interesting and worthwhile stuff. However, the truly fascinating materials are not hosted on the CIA's website. You have to FOIA them and then wait and possibly pay fees. This serves to limit access to these files by erecting utterly unnecessary barriers between the documents and the public. If the CIA has the staff and equipment to scan worthless thank you letters, than they have the staff to include copies of cool documents like the records on Stargate, Ramparts Magazine, and Grillflame, where most, if not all the responsive records have to be ordered up via FOIA.

Only one "Grill Flame" result is available online

Is the FBI Going After Bain Capital?

The answer to the headline question is yes. About two weeks ago, the FBI evoked FOIA exemption 7(a) and denied access to all Bain Capital records on the grounds that "there is a pending or prospective law enforcement proceeding relevant to these responsive records; and that release of the information contained in these responsive records could reasonably be expected to interfere with the enforcement proceedings."

Whether or not this "enforcement proceeding" target Bain Capital founder Mitt Romney is unknown.

FBI Response to FOIA Re: Bain Capital

An Aside

Some have asked in response to other FBI FOIA request related postings on this site whether the FBI is required to release files related to an open investigation. As this response shows, the answer to that question is no. However, the response also shows that the FBI is required to acknowledge their existence. The only time Bureau is allowed to claim a no records response is during an active investigation in which acknowledgment of responsive records would compromise it.