Chapter 1: Getting Started Early in 1981, shortly after John Lennon's murder on December 8, 1980, I filed a Freedom of Information Act (FOIA) request for any files the FBI had kept on Lennon. The FBI 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 withheld mostly under three different FOIA exemptions: protection of the privacy of others named in a document, protection of the identities of confidential sources, and "national security."1
The documents that were released included one page that had Lennon's name at the top but was otherwise blacked out under the national security exemption (see p. 170); a variety 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 of narcotics charge," which would make him "immediately deportable" (see p. 289); and several pages, completely blacked out, from the Detroit FBI reporting on Lennon's appearance at 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, assistant to the president, dated April 25, 1972, that had been withheld in its entirety under the national security exemption (see p. 240). Since Haldeman was theclosest official to Nixon, this document provided crucial evidence that the Lennon investigation was a political one, significant at the highest levels of the Nixon White House.
When these documents began arriving in my mailbox in the spring of 1981, American politics was beginning a shift of historic proportions toward the right. Ronald Reagan had been elected in November 1980, bringing to power the Republican right wing that had failed to elect Barry Goldwater sixteen years earlier. The "Reagan Revolution" rested on an ideological commitment to "law and order," which Lennon had challenged, and a passionate hostility to "the sixties," which Lennon personified. The fight for the Lennon files would be a battle with the Reagan administration.
When the FBI informed me it was withholding 70 percent of the Lennon files, the letter also said, "You may appeal to the Associate Attorney General." I did. My appeal argued that information about Lennon's plans to demonstrate against Nixon should not have been withheld under the "national security" exemption, a decision I called "arbitrary and capricious." I argued that the other withheld material was "not properly covered by the exemptions claimed."
Reagan's assistant attorney general for legal policy, Jonathan C. Rose, responded six weeks later: "After careful consideration of your appeal, I have decided to affirm the initial action in this case." The national security material, he wrote, was "being referred to the Department Review Committee for review," but the rest had been "properly withheld."
Six months after that, the assistant attorney general informed me that the review committee had completed its work and concluded that eight of the national security pages could be declassified. But the FBI still wasn't going to release them. While those pages were no longer being withheld on national security grounds, the bureau now claimed they fell under other exemptions: personal privacy and confidential source information. So my administrative appeal produced little of significance. The assistant attorney general's letter denying my appeal concluded, "Judicial review of my action on this appeal is available to you in the United States District Court for the judicial district in which you reside." It was time to find a lawyer.
The FOIA gives federal courts the power "to order the production of any agency records improperly withheld from the complainant." That's what I wanted the courts to do. I asked a variety of organizations and attorneys for help in bringing an FOIA lawsuit against the FBI. Victor Navasky, editor of The Nation magazine, suggested four criteria for picking a lawyer: find one you trust; who understands the case; who cares about it; and who will do it for no money except an award of fees at the end. Courts had awarded attorney fees in some successful FOIA appeals, recently in an appeal for documents about Vietnam Veterans 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 Center for Investigative Reporting in Oakland. I talked to the American Historical Association's Committee on Access to Documents. I talked to the Playboy Foundation, well known for its defense of the First Amendment. I talked to Frank Wilkinson, who had sued the FBI for his file, the largest on any individual, and who headed an organization called the National 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. I talked 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 of these, hoping to win, and got burned. I'm not in a position to do this kind of thing. You can'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 in January 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 and Mark Rosenbaum, the ACLU general counsel.
At the meeting, I presented my documents and arguments, anxious that this was my last best hope. Nervously, I showed that I had followed the ACLU's model letters requesting material under the FOIA and that I had exhausted my administrative appeals. It turned out that their biggest concern was not about the case but about their potential client, the possible plaintiff: was I some kind of obsessed fan? or perhaps a burned-out hippie, living in 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 years earlier 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 Journal of 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 sought the Lennon files as part of his research on the American past. Convinced that their potential client was a mild-mannered professor and not some kind of nut, the two of them decided the ACLU of Southern California would take the case. Rosenbaum, who eventually succeeded Hoffman as ACLU legal director, served as the colead attorney throughout the next fifteen years of litigation.
In a 1998 interview, he discussed the ACLU's considerations in taking the case: "It was simple to decide. The timing was coincident with a national frustration with the administration of the FOIA, particularly in the areas of national security and informants. Agencies were coming forward with boilerplate refusals. The law's presumption in favor of disclosure had, for all intents and purposes, been dissolved, and the FBI in particular was choosing what they wanted to disclose. If any case could take us back to legislative objective favoring disclosure, this would be the one." So the ACLU's first goal was not just to get the documents, but to challenge "systemic problems in implementing the FOIA."2
The ACLU had a second goal: to publicize the value of the FOIA and expose the ways in which it was being subverted by the FBI. The files on Lennon provided an excellent example that could win media attention.
Mark Rosenbaum is a remarkable figure. Known as both a brilliant legal strategist and a passionate and effective courtroom advocate, he graduated from the University of Michigan in 1970 and went on to Harvard Law School. In 1973, on the verge of dropping out because the classes seemed so uninteresting, Rosenbaum went to work as a clerk in the law office of Leonard Boudin and Leonard Weinglass. At that moment, they, along with Ramsey Clark, happened to be representing Daniel Ellsberg, the government researcher who was being prosecuted by the Nixon administration for leaking the Pentagon Papers to the New York Times. Rosenbaum describes the experience of working on the Ellsberg defense as "the turning point of my life."
After the Ellsberg case, Rosenbaum went back to Harvard Law School and graduated in 1974. He then joined the ACLU of Southern California as a staff counsel-hired by the new executive director, Ramona Ripston. Stanley Sheinbaum, then head of the ACLU Board of Directors, personally put up the $10,000 required to pay Rosenbaum's salary for the first year. The year before taking on the Lennon FBI files case, he had gone to the Supreme Court, along with Harvard law professor Laurence Tribe, to challenge school segregation in Los Angeles.3
In subsequent years Rosenbaum would serve as colead counsel in the ACLU lawsuit seeking to overturn California's Proposition 187, the anti-immigrant initiative, and as the point man in the ACLU fight to maintain affirmative action programs. He also successfully defended the constitutionality of the "Motor Voter" registration act, challenged by California governor Pete Wilson before the Ninth Circuit Court of Appeals. And in 1995 he argued before the Supreme Court a case in which the Court held that residency requirements for Aid to Families with Dependent Children program recipients were unconstitutional.4
When the ACLU decided in 1983 to take the Lennon files case, Rosenbaum called Dan 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 from Yale Law School in 1980, where he received an award for his work in legal services. He went on to specialize in complex civil and criminal business litigation. In 1982 he had served as co-counsel for a group of Salvadorean refugees seeking political asylum, assisting with 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 John DeLorean in 1982, and had worked with Rosenbaum pro bono on several other ACLU cases. Marmalefsky accepted Rosenbaum's offer to work on this one, and the two served as 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't require permission from anyone at his firm. "The basic question concerns time, balancing pro bono work against the amount of fee-generating work I do," he explained. "Because when I take pro bono cases, I don't do it halfway. I treat them the same as any other matters and devote the necessary time-whatever it takes."5
The two had just won a case before the Supreme Court in 1983, an ACLU challenge to the California Penal Code section making it a crime for a person to refuse to provide identification when asked by a police officer. The Court accepted their argument that the law violated the First Amendment and voided the statute for vagueness and overbreadth.6
In 1985 he and Rosenbaum would bring to the Supreme Court a case challenging the constitutionality of the enforcement of draft registration.7 He also litigated prosecutors' duty to present exculpatory testimony before a grand jury and the right of public access to juvenile court proceedings. But Marmalefsky's practice wasn't all pro bono; in other cases he helped successfully defend Kirk Kerkorian in a $1 billion damage suit over the sale of MGM to Giancarlo Parretti in 1990, and as co-counsel, he won an $11 million verdict for an investor defrauded in commodities trading.
When Rosenbaum and Marmalefsky went to work on the case, 69 pages out of 281 in the Lennon FBI file were being withheld in their entirety under various claims, and portions of dozens of others were also withheld. The FOIA not only allows judges to order agencies to release withheld documents but also requires that if a requester brings a case before a judge, "the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld . . . and the burden is on the agency to sustain its action."8 Equally important was the section of President Reagan's executive order on classification, which declared that "in no case shall information be classified in order to conceal violations of law . . . [or] to prevent embarrassment to a person, organization, or agency."9
Because the FBI cited three different exemptions under the FOIA for withholding most of 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 that the law was clear that we would never get some of the withheld information; the names of confidential informants, for instance, were clearly protected. So we decided at the outset to notify the FBI that we were not seeking those names, the names of FBI or nonfederal law enforcement officers, or technical source symbol numbers. We were challenging the claims made for withholding only some of the information: particularly the material claimed under "national security" and the information provided by confidential sources. We were not seeking the names of the informers, but we were seeking the information they provided.
The "national security" information provided the most obvious target-how could release of twelve-year-old information about a dead rock star possibly endanger the national security?-but was also the most difficult to obtain. Mark Rosenbaum told me that the biggest 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 deference to executive branch claims concerning national security."10
Still, Rosenbaum and Marmalefsky had at least one significant avenue of attack. The FOIA exemption covers any material "which reasonably could be expected to cause damage to the national security," but the task of determining what constitutes "damage" is assigned by 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 required federal agencies considering FOIA requests to consider the public interest. The benefit to the public was to be balanced against the possible harm that could result from release of documents. If the public interest outweighed the possible harm, the documents had to be released. That policy, the "public interest balancing act," had been established by President Carter.11 Since the public benefit from release of the Lennon files would be considerable, and the possible harm to the national security was small or nonexistent, the argument for releasing those pages was a strong one.
Disaster struck almost immediately. Between the submission of the original FOIA request in 1981 and the filing of the lawsuit in 1983, President Reagan issued a new executive order on classification that eliminated the public interest balancing act. Under the new Reagan policy, the FBI was required to withhold all documents "the unauthorized disclosure 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 possibly result in damage to the national security, no matter how great the public interest that would 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 its strongest argument for release of the national security documents in the Lennon file. Until a Democratic president could be elected, who would presumably restore the Carter-era public interest balancing act, we would face a serious obstacle to the release of that material. Nevertheless, a judge could find that the expectation of damage was not reasonable or that the files were being withheld improperly to conceal information that would embarrass the FBI-and 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 the FBI to release the documents, a written finding stating that the FBI "acted arbitrarily or capriciously" in withholding the documents, and last but not least, an award of costs and attorney fees.12 Rosenbaum and Marmalefsky pointed out that under the law the burden of justifying the withholding of documents rested on the FBI. But the ACLU team's strategy in the case was not to start by asking the judge to order the prompt release of the withheld documents; it was necessary to go through several preliminary procedural steps. The first was to ask the court to order the FBI to provide an index of every document at issue along with "a detailed justification covering each refusal to release agency records." Once the FBI had stated its justifications document by document, each justification could be challenged and shown to be inadequate, and on that basis the judge could then order the bureau to release the documents.
This was the established procedure: the bureau provided the plaintiffs with an affidavit known as a "Vaughn index"-the court's term for the document itemizing the government's justifications for refusing to disclose documents.13 The purpose of the index was to provide the FOIA requester with a meaningful opportunity to contest the FBI's arguments in court. When the D.C. Circuit Court of Appeals established the Vaughn index procedure in 1973, it addressed the basic dilemma facing FOIA plaintiffs, a dilemma we faced: how to challenge a government decision to withhold a document when the contents of the document remained unknown to the challenger? The plaintiff's lack of knowledge about the contents of the withheld document "seriously distorts the traditional adversary nature 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 adverse parties." An index was necessary, the court argued, to "assure that a party's right to information is not submerged beneath governmental obfuscation and mischaracterization." Preserving the adversary nature of the proceedings would turn out to be the key to the Ninth Circuit Court of Appeals ruling against the FBI nine years after the case was first filed.
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 population of the West Coast, for the duration of World War II. After the war he went to UCLA as an undergraduate in the mid-fifties, then served in the army for two years, and graduated from University of Southern California Law School in 1959. He worked in a variety of judicial positions and was appointed to the federal bench in 1976.
We thought that his wartime experience might make him more sensitive to the issue of government abuse of power-especially after Judge Takasugi called his wartime internment experience "an education to be fair" in May 1995 at a gathering sponsored by the Japanese American National Museum and the Los Angeles Jewish Federation. Along with four other Japanese American judges-including Lance Ito, who at the time was presiding over the O. J. Simpson criminal trial, Takasugi recalled indignities like sleeping on straw mattresses, sharing toilets with hundreds of other people, and using tin cans to cover knotholes in the thin walls of the wooden barracks to keep out the dust. Along with the others, he described how the experience of internment had led him toward a career in law and how it sensitized him to civil liberties issues. "It has certainly affected me 26 hours a day," Judge Takasugi told the audience. All the judges at the event warned of the dangers of anti-immigrant hysteria; Judge Takasugi "spoke caustically of the stereotypic sing-song impersonation of Judge Ito by Senator Alphonse M. D'Amato, Republican of New York, in a recent radio interview, calling it 'a disgrace.' " Judge Takasugi also told about how his father lost his home and property as a result of the wartime "relocation" program and died at age fifty-seven of a stroke, brought on, the judge said, by "feelings of helplessness" at the Tule Lake internment camp.14
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 Mountain internment camp site in Wyoming. Reporters asked Judge Takasugi whether it resembled the place where he had lived. "Yeah, exactly," he replied, "but the úoors were tar, so on a hot day we started sinking." A photographer asked him if he was willing to step inside. "I don't want to go back in, really," Judge Takasugi said. "I'll take the loyalty oath."15
While the Lennon files were being debated in Judge Takasugi's courtroom, a movement for "redress and reparations" for Japanese Americans interned during World War II was gaining strength in national politics. In 1988 Congress officially apologized and authorized reparation payments to victims of the internment program. It seemed as if Judge Takasugi's youthful experience of government abuse of power might make him more sensitive to the issues in the Lennon FBI files case.
THE FBI'S ARGUMENT The FBI was represented in the case by Peter Osinoff, an assistant U.S. attorney. He was a thirty-one-year-old New York native who had graduated magna cum 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 of providing specific arguments justifying each deletion from the FBI file, the bureau submitted a master list of justifications for withholding material-a codebook. The blacked-out passages on file pages were marked with marginal notations referring to particular justifications in the codebook. Obviously the codebook justifications were generic. It turned 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 that the explanation in the codebook "is really not more than a generalized elaboration of the exemption asserted: it is mainly just wordier." Despite the vagueness and generality of the codebook, the courts had been sympathetic to the FBI's use of boilerplate justifications. Rosenbaum and Marmalefsky decided that challenging the codebook would be the first element 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 "Declaration of Robert J. Chester," supervisor of the FBI's FOIA Section, which defended the FBI's procedures for all exemptions, except national security-for that the FBI submitted a separate statement by another official. Agent Chester explained that the names of FBI agents were being withheld because targets of FBI investigations "carry grudges which 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 was a mild-mannered history professor, Chester conceded that "in the instant case, there is no apparent evidence that plaintiff constitutes a threat to law enforcement personnel." That was deeply gratifying. Nevertheless, he added, "in light of the highly publicized nature of this particular case, it is important that Agents' identities be protected even absent evidence of potential physical harm to their persons."
Chester provided an equally rich justification for withholding information provided by confidential sources: "Informant identification has become a paramount consideration to members of the criminal and subversive elements." Again, he had no evidence that the plaintiff in this case belonged to those elements. But that did not prevent him from continuing to argue: "Members of the criminal and subversive elements do not require proof beyond a reasonable doubt when they seek to ferret out the individual who has cooperated with law enforcement authorities."
The FOIA permits the FBI to withhold confidential source material only if it had been gathered as part of a legitimate law enforcement purpose; thus it was necessary for the FBI to state the law enforcement purpose of the investigation of Lennon. The Chester declaration 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 Security Act of 1947."
This was a strange claim, one that would turn out to be helpful for our case. The National Security Act of 1947 created the Central Intelligence Agency. Congress was concerned at the time about whether the proposed CIA would serve the president as "a Gestapo of his own if he wants it," in the words of a Republican congressman from Ohio. So the security act made it clear that the CIA would be prohibited from "investigations inside the continental limits of the United States" and would not have "police, law enforcement, or internal security functions."16 To claim that law as one Lennon was suspected of violating was strange not only because it wasn't a criminal statute but also because eventually it would be revealed that the CIA had indeed compiled files on Lennon's domestic political activities, in violation of the very same National Security Act of 1947.
The FBI codebook for the Lennon file divided "national security" material into eleven subcategories, starting with "identity of a foreign government . . . engaged in a cooperative, confidential relationship with the United States" and ending with "intelligence information gathered by the United States about or from a foreign country, group or individual." The FBI's arguments regarding national security deletions from the Lennon files were presented in a court declaration by Special Agent Robert F. Peterson, supervisor of the 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 Secret classification authority."
Information provided by a national security confidential source had to be withheld, Peterson declared, because disclosure could permit "hostile entities" to assess "areas and targets which 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 people who provided it, threatening them with "loss of life, jobs, friends, status, etc." This was the problem with the codebook approach-none of this boilerplate argument had anything to do with the Lennon file.
The most significant part of Peterson's declaration concerned the category "foreign government information," which the FBI claimed as the basis for withholding numerous documents. These had to be withheld, Peterson argued, "due to the delicate nature of international diplomacy." Release of the foreign government information in the Lennon file could lead to "political or economic instability, or to civil disorder or unrest" in the foreign country 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 States Government personnel there." Then came the most remarkable claim made in fourteen years of Lennon file litigation: release of foreign government information in the Lennon file, Agent Peterson declared, could "lead to foreign . . . military retaliation against the United States."
Britain was obviously the source of the "foreign government information," but it seemed unlikely that British citizens would attack visiting American tourists or government personnel in retaliation for the release of information gathered by British authorities. British economic instability might be a problem, but it was unlikely to be exacerbated by the release of information about Lennon. Most important, we felt confident that the Thatcher government would not engage in military retaliation against the United States if our government released British information on Lennon.
What could the John Lennon FBI file contain that had been provided by the British government? The Nixon administration had begun deportation proceedings against Lennon 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 foreign country" enters the story. The Nixon administration claimed as the legal basis for its effort to deport Lennon his 1969 conviction on misdemeanor charges of cannabis possession in Britain. Presumably the FBI's Lennon file contained information from the British government regarding that event.
Thus in response to an FOIA request for the FBI's Lennon file, the classification officer-the man with the magic marker-blacked-out passages that originated with the British government and marked them with the code referring to "foreign relations or foreign activities of the U.S."; the reader then looked up the code in the codebook and found the official description of "damage to the national security reasonably expected to result from unauthorized disclosure"; among the boilerplate list of possible damages, the FBI included "foreign military retaliation against the U.S." To add insult to injury, Special Agent 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 was right.
The Lennon file also contained five documents originating with the CIA. These were part of the FBI's file on Lennon because the FBI had received them from the CIA. Confronted by an FOIA request, the FBI sent these documents back to the CIA so that the agency could decide whether to release or withhold them. The official CIA justification for withholding this material was prepared by Louis J. Dube, the information review officer for 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 a senior CIA official," he wrote, in a chain of command "running from the President of the United States to the Director of Central Intelligence . . . to me, I hold original classification authority at the TOP SECRET level." Dube declared that, in document HQ-1, a "one word CIA cryptonym" was being withheld under both the (b)(1) national security exemption as 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 nature or identity of some intelligence activity." The use of cryptonyms "provide[s] an additional measure of security in the event a document comes into the possession of a hostile foreign power." If the cryptonym used in the Lennon files were disclosed, "the intelligence service of a hostile foreign power" would be able to "divine the nature and purpose of the CIA activity" in question. But it was obvious to any power, hostile or not, that the purpose of the CIA activity in question had been to gather information about John Lennon's political activities. (In 1987, the cryptonym would be released; see chapter 3.)
The CIA released one of its Lennon documents in September 1984-a teletype dated February 8, 1972, reporting on Lennon's plan for a "caravan of entertainers who will follow U.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 in the 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 indices there were clear: "MHCHAOS" was a secret, illegal CIA program of surveillance of domestic political 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 program had 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 counterintelligence specialist in the Directorate of Plans, Harvard '43. Ober's tasks had already included developing CIA strategy to respond to the revelation by Ramparts magazine in February 1967 that the CIA had been secretly funding the National Student Association for fifteen years. Under the CHAOS operation, the investigation of Ramparts was expanded to cover the entire underground press and given "highest priority." To keep the illegal activity from being leaked by CIA employees, the operation was housed in the basement of CIA headquarters in Langley, Virginia, in specially shielded vaults that blocked electronic eavesdropping.
The CIA sent Operation CHAOS domestic intelligence reports on political dissent first to 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 source of intelligence about the antiwar leadership."17
CIA Operation CHAOS was revealed in 1976 by Representative Bella Abzug's House Subcommittee on Government Information and Individual Rights. The CIA director at the time was George Bush, who conceded in congressional testimony that "the operation in practice resulted in some improper accumulation of material on legitimate domestic activities." He defended the agency, declaring that "only a very small fraction of reporting on the activities of American citizens in the US was done by the CIA." Abzug proposed that individuals who had been targets of Operation CHAOS be notified by the CIA and given a chance to review their dossiers. Bush replied that notification was unworkable and proposed instead that the CIA "destroy . . . all the information which was improperly collected under the so-called CHAOS program." Because of congressional insistence, Bush agreed that the FOIA would make Operation CHAOS files available under the Act.18 Thus the appearance of the CHAOS memo here (see p. 157).
Just eight months after the ACLU suit was filed, the government changed attorneys. Peter Osinoff, 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. Dan Marmalefsky promptly wrote Petersen, expressing "concerns with the delays in the FBI response to this lawsuit," protesting that two months had passed since he had requested a more specific Vaughn index. Fourteen years later Rosenbaum and Marmalefsky would still be arguing many of the same issues.
The FBI accounting of file pages in their Vaughn index included two unexpected and previously 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 vital for requesters to contact not only FBI headquarters in Washington, D.C. but also FBI field offices in cities where investigations were conducted. The field office files contain the 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 but not from Houston or Washington, D.C.; nevertheless the FBI provided copies of those documents.
A careful examination of the released pages in Lennon's New York file indicated that a Lennon file had also been opened in Miami, yet no Miami file had been produced along with those from Houston and Washington, D.C. So in 1983 I filed a new FOIA request for Lennon files in the Miami field office, providing the Miami file number for Lennon that appeared on New York FBI memos. In May 1983 I received a reply: "A search of the index to the central records system of the Miami Office reveals no information identifiable with your request." As for the file whose number I requested, it "was destroyed in connection with the routine file destruction program during September of 1977."
The Miami file could have been an important one; it may have contained evidence of the government's efforts to set up Lennon for a drug bust. A memo from the New York FBI dated July 1972, released in the first batch of pages, suggested that "Miami should note that LENNON is reportedly a 'heavy user of narcotics'. . . . This information should be emphasized to local Law Enforcement Agencies covering MIREP, with regards to subject being arrested if at all possible on possession of narcotics charges" (see p. 289). ("MIREP" was FBI newspeak for the 1972 Miami Republican National Convention.) The Miami Lennon file that the FBI said it had destroyed might have contained further information about that element of the FBI's harassment of Lennon.
The ACLU team raised the issue of the Miami file with FBI attorneys. Petersen replied in November 1983 that the statement provided by the Miami FBI "was a statutorily sufficient 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 Campo confirming that "there once was a Lennon file in Miami, but there is no way to know what was in it." He explained that "the local office has a carefully regulated file destruction program, in which outdated closed files are destroyed at specified intervals."19 Yet none of the other offices with Lennon files had destroyed theirs.
THE ACLU'S ARGUMENT In an effort to provide the courts with a sense of the historical significance of the Lennon files, and of the broader context in which they had been created, the ACLU team submitted a document in October 1987 modestly titled "The Declaration of Jonathan M. Wiener." In it the plaintiff argued that FBI files released under FOIA requests had become a major research tool for historians of the 1960s; that Lennon was widely regarded as a significant historical figure; that the lawsuit was seeking only information of genuine historical significance; and that the Lennon FBI files contained evidence of Nixon administration abuses of power.
The declaration sketched out some recent history: for Nixon and Hoover, another historian had written, "The world was a battlefield filled with active or potential enemies." Lennon became identified as one of those enemies because he publicly opposed Nixon's reelection. In Nixon's mind, "he was a victim forced forever to defend himself against unrelenting and unscrupulous enemies." Hoover supported Nixon's beliefs: he told Nixon at a private meeting in October 1971, "More than anything else, I want to see you reelected in 1972."20
Hoover's rhetoric about antiwar activists like Lennon "was even more violent than Nixon's," according to his biographer. Hoover characterized the antiwar activist of the sixties as " 'new . . . different . . . a paradox because he is difficult to judge by the normal standards of civilized life. . . . His main reason for being is to destroy, blindly and indiscriminately, to tear down and provoke chaos. . . . They conceive of themselves as the catalyst of destruction-bringing to death a society they so bitterly hate.' "21 This attitude helped shape the FBI's conduct in its investigations of Lennon.
The declaration reminded the court that the bureau acknowledged it had engaged in illegal and unconstitutional activities in investigating antiwar activists during the sixties. The man who headed the FBI's Intelligence Division during the sixties, who was deeply involved in the FBI's investigations of the antiwar movement, William Sullivan, testified before a congressional committee in 1975: "Never once did I hear anybody, including myself, raise the question: 'Is this course of action which we have agreed upon lawful, is it legal, is it ethical or moral.' We never gave any thought to this line of reasoning, because we were just naturally pragmatic."22
The declaration quoted John Ehrlichman, who served as J. Edgar Hoover's contact with the Nixon White House and received Hoover's reports. "The Bureau dealt excessively in rumor, gossip and conjecture," he wrote in his memoir of this period. "Sometimes a report was based on 'a confidential source'-the Bureau euphemism for wiretapping or bugging. Even then the information was often hearsay." The FBI had repeatedly refused to release documents from the Lennon file it described as based on "confidential sources." But the FOIA does not permit the bureau to withhold information gathered by improper law enforcement techniques. The 1976 report of the Senate Select Committee on Intelligence, chaired by Frank Church, concluded that the FBI during this period engaged in a "pattern of reckless disregard of activities that threatened our constitution."23
The declaration argued that the Nixon campaign against Lennon was related to the Watergate abuses of power. Lennon was not the only one of Nixon's "enemies" to feel the power of the White House early in 1972. Gordon Liddy and E. Howard Hunt proposed in January that the Committee to Re-Elect the President spend $1 million on covert operations, including mugging demonstrators at the Republican National Convention and abducting the leaders to Mexico. Jerry Rubin and Abbie Hoffman were selected for abduction; Lennon was not. When the plan was presented to Attorney General Mitchell, he said it was "not quite what I had in mind" and cost too much.24 Liddy came back with a plan to break into Democratic National Committee headquarters in Washington to plant bugs and photograph documents. Mitchell liked that better. The operation was carried out on June 17 at the Watergate offices of the Democratic National Committee; Washington police caught the perpetrators in the act. A cover-up directed by H. R. Haldeman and John Ehrlichman successfully kept the press from developing the story until after Nixon's reelection.
The declaration concluded that the Nixon administration's persecution of Lennon was one small part of a massive, illegal effort to ensure Nixon's reelection, one example of an abuse of power that eventually led Congress to move toward Nixon's impeachment, and that Lennon's FBI file contained the best and in some cases the only documentation of some Nixon-era abuses of presidential power. Release of these documents therefore would contribute to establishing a complete record of those historically significant events.
Judge Takasugi held a hearing February 6, 1984, in which both sides presented their arguments. In the courtroom, Rosenbaum and Marmalefsky looked splendid in their dark blue suits, although it was not hard to tell the ACLU team from the FBI attorneys: Rosenbaum and Marmalefsky were the ones with beards. Rosenbaum was also wearing cowboy boots.
The ACLU team had four specific objections to the FBI's codebook approach. First, Marmalefsky rose to challenge the bureau regarding confidential source material: the FOIA distinguished between information provided under a guarantee of confidentiality that was explicit and one that was not. If an FBI source had received an explicit promise that his or her identity would not be revealed, the information in question was absolutely protected from release under the FOIA. That was not the case for information provided by sources who had only an implied promise of confidentiality. Marmalefsky argued that the FBI had failed to distinguish between guarantees that were explicit and those that were only implied. That issue was called "expressed versus implied confidentiality." Second, the FBI had failed to explain how the information provided by confidential sources was gathered as part of a legitimate law enforcement investigation. What was missing was the "rational nexus."
Then Rosenbaum addressed the issue of national security information. The FBI's claims regarding the damage that would be caused by the release of foreign government information were too broad, he argued-they had a "lack of specificity." Finally, he told the court that the withholding of numerous entire pages was unacceptable; the courts required the segregation of all nonexempt portions of particular pages and the release of the rest of each page. This issue was called "segregability."
The ACLU team cited some important precedents in support of its argument. The closest parallel FOIA case had been brought in 1976 by a Berkeley graduate student, David Dunaway, who was writing a Ph.D. dissertation on Pete Seeger. That suit concerned the FBI file on the Weavers and other folk music groups and organizations. In 1981 Judge Peckham of the Northern District of California wrote that "we cannot blindly accept" the vague generalities in the codebook. The documents in that case "concern the comings and goings of U.S. citizens 20 to 30 years ago. . . . [V]irtually all of the information is of the most mundane character, information which has no apparent relationship to the security of this nation today, if it ever had." He ordered the documents to be released in their entirety.25
Another key case was that of Frank Wilkinson, executive director of the National Coalition against Repressive Legislation, founded to organize opposition to the McCarthy hearings and to the House Committee on Un-American Activities. In that case, Wilkinson argued that in the early 1960s the FBI targeted his organization as part of the illegal COINTELPRO operation, that the FBI investigation was intended "not to uncover potential criminal activity, but instead to monitor and disrupt plaintiff's lawful activities through the use of various illegal techniques such as warrantless electronic surveillance, 'black bag jobs,' and agents provacateur [sic]." In that case 12,000 documents were at issue. Judge Tashima of the Central District of California ruled that the FBI coding system consisted of vague generalities that "do not enable this Court meaningfully to assess the validity of the agency's claims."26 Because the government had not met its burden, he ordered the FBI to release the documents. By citing these cases, Rosenbaum and Marmalefsky were providing Judge Takasugi with precedents he could rely on if he were to rule that the FBI's Vaughn index was inadequate.
The government attorneys replied that the FBI had done what was legally required and that if the judge wanted they would submit the original uncensored FBI file pages for in camera review by the judge. In response to the ACLU team's arguments that confidential source information could not be withheld if the government lacked a legitimate law enforcement purpose in the investigation, FBI attorney Petersen replied that the prevailing law in three federal circuits held that FBI records "are inherently records compiled for 'law enforcement purposes.' " That was a chilling argument. The standard in the Ninth Circuit, where the case was being tried, required a "rational nexus" between the documents and a legitimate law enforcement purpose.
The government had already responded brieúy to the "Declaration of Jonathan M. Wiener": "While interesting reading," the FBI told the court in its reply, the declaration was "mostly composed of hearsay, improper opinion, and irrelevant matter." It urged the court to ignore it.
Petersen reminded Judge Takasugi that the FBI brief had provided an explanation of "The Origination of the FBI Investigation Concerning John Lennon." He cited the 1968 Civil Obedience Act and the Anti-Riot Act, which made it a felony to travel interstate with the intent to encourage, incite, or participate in a riot. Congress had passed this law in response to the demonstrations at the Democratic National Convention in 1968, in the hope of preventing a recurrence in 1972. Lennon had been associating in 1971-72 with Jerry Rubin and Rennie Davis, who had been convicted of similar crimes in Chicago in 1968 and who had formed a group "apparently dedicated to creating disruptions," Petersen told the judge, at the 1972 Republican convention. Therefore, Petersen continued, the FBI's investigation of Lennon had a legitimate law enforcement purpose, and the withholding of confidential source information was required under the FOIA. That had a certain logic; however, the government had earlier given a different basis for the investigation of Lennon, the National Security Act of 1947. Rosenbaum and Marmalefsky would highlight this contradiction in subsequent litigation.
On the "national security" material, Petersen argued that Judge Takasugi should defer to executive branch decisions. Judges were unqualified to overrule decisions made by career officials whose responsibility was national security classification. Thus, he argued, the assignment of a "national security" classification to any FBI document was "absolute." The judicial review process provided for in the FOIA, he argued, was "limited to a determination that the procedures set forth by the applicable Executive Order have been followed and that the classification decision was made in good faith"; in other words, Petersen told Takasugi, "the court may not review or second-guess the substantive decision to classify." He cited the D.C. Circuit making precisely that argument.
The brief Petersen had submitted pointed out that another court went beyond the "reasonable basis" standard for withholding documents. "In view of the knowledge, experience and positions held by the three affiants regarding military secrets, military planning and national security," a D.C. Circuit judge declared, "their affidavits were to be treated by the courts with 'utmost deference.' "27 The implication was clear: if "utmost deference" were to become the prevailing standard, the judicial review provisions of the FOIA would become virtually useless, and the withheld Lennon files would never be released.
Judge Takasugi responded five weeks later, in March 1984, to the ACLU motion to compel a new and more adequate Vaughn index. He agreed that the FBI's index to the Lennon documents lacked the required specificity. But instead of ordering the bureau to provide the plaintiff with a new and detailed Vaughn index, he ordered the FBI to submit more specific affidavits to him in camera-affidavits Rosenbaum and Marmalefsky would not be allowed to see. The FBI promptly filed two in camera affidavits by Agents Peterson and Chester, which presumably made new arguments, and gave the judge a copy of the uncensored Lennon FBI file. Apparently they were confident he would conclude that the files indeed did contain national security information.
The ACLU team objected to the FBI's submission of documents to the judge in camera, pointing out that the Vaughn decision that governed this kind of case criticized in camera inspection of documents because "it is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure." In August 1984, Rosenbaum and Marmalefsky filed a motion asking the judge either to release the in camera affidavits or order the FBI to prepare a more adequate Vaughn index. Without such rulings, "the litigation will essentially have lost its adversary character," the ACLU team concluded.
MEDIA WATCH: 1983-84 The first steps in the ACLU's project of publicizing the value of the FOIA and its subversion by the FBI came when the lawsuit was first announced and my book Come Together: John Lennon in His Time was published, drawing on files that had been released. The publisher, Random House, organized a ten-city author tour in 1983, which featured the story of the withheld files and the historian who had sued the FBI to win their release. As the ACLU had hoped, the story was covered by Dan Rather, ABC 20/20, the CBS Morning News, People magazine, and most of the country's newspapers. CNN's Dave Rinn was energetic enough to ask Haldeman and Nixon for comment; both refused.28
The Today show producers didn't want to have me on alone. They invited the White House to send a spokesman to respond to my account of the Reagan administration's fight to prevent release of the Lennon files. Senator Orrin Hatch, one of the smartest and most articulate spokesmen of the Right, was chosen to provide the administration response. For anyone who thought the Reagan White House didn't care about the Lennon files, the selection of Senator Hatch must have been illuminating. (He canceled at the last minute.)
The ACLU was delighted to get the story on TV, but often the context undermined the seriousness of the issues. In Chicago on a live morning TV show, the other guests were Soupy Sales, Miss USA-a J. C. Penney promotion-and a drug-sniffing dog that was sent out into the studio audience. Another live morning TV show, in Detroit, had a smaller budget for their dog segment: "Coming up, John Lennon and the FBI-but first, Name That Breed!" A picture of a dog went up on the screen, and viewers were invited to phone the station and "name that breed. We'll be back with the correct answer-and the John Lennon FBI files-right after this message." Cut to commercial.
Some treated the story seriously but got it wrong: instead of "FBI refuses to release files on Lennon," dozens of newspapers ran stories in June 1984 headed "Senator Thurmond Tried to Deport Lennon," attributing that information to documents released in Wiener v. FBI. But that story had been told almost a decade earlier, in 1975, by Chet Flippo in Rolling Stone.29
And occasionally the story provided a platform for diatribes against "the sixties." Ronald Radosh, a former sixties leftist who had joined the right, reviewed Come Together in the Washington Post, where he wrote that the book shared J. Edgar Hoover's delusions about Lennon's political significance.30 The Princeton Alumni Weekly ran a report on the Princeton graduate, class of '66, who had sued the FBI for the Lennon files, which prompted Bill Black Jr., class of '67, to write a letter to the editor declaring that another Princeton alumnus of the same era had "bombed a computer center at the University of Wisconsin in 1970, killing a graduate student and wounding four other persons. I do not understand how Wiener could have forgotten so prominent a member of his small group, who graduated to terrorism and murder." That claim was completely untrue and indeed libelous, as editor Charles Creesy '65 was informed. The next issue bore an abject apology from Black, who conceded that his statement was "without basis and completely in error. I regret this error and any harm it may have caused." That ran next to a box from the editors headed "An Apology and Retraction."31
Note: Numbers in text refer to footnotes, which are not available for viewing in the web version.