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Elbert N. Mullis, Jr.
POST OFFICE BOX 2006
November 4, 1983
Congressman Robert W. Kastenmeier
United States House of Representatives
2232 Rayburn Building
Washington, D. C.
Dear Congressman Kastenmeier:
I am in full and complete support of our recent Grenada action and agree 100% with the decision to keep the news media out.
John Chancellor, David Brinkley and Edward Joyce are a bunch of cry babies because they were not informed of the advance planning and the action missed the morning news.
I see absolutely nothing of censorship or anything else of an unprecedented nature in this decision.
I want my letter placed before the House Judiciary Subcommittee on courts, civil liberties and the administration of justice as an American citizen who supports the President on his Grenada decision.
Very truly yours,
Elbert N. Mulliś, Jr.
COMMERCIAL DEVELOPMENT 3300W.Coast Highway-Newport Beach CA92663 (44) 645-2251
November 4, 1983
MR. DAVID BRINKLEY
New York City, New York
Dear Mr. Brinkley:
I keep reading articles in the newspaper about the great
When the media in total gets their act together and stops
S. H. Bers, President
cc: Ronald Reagan, White House
House Judiciary Subcommittee on Censorship
HOW I GOT THE N.S.A. FILES. . .
How Reagan Tried To Get Them Back
n September 22, 1981, the Federal government did something it had never done before. The Justice Department, for the first time in its history, issued an order forbidding an author from publishing previously released official documents in his possession and demanding their return. The documents, said the department, had been "reclassified."
Three years earlier I had begun work on The Puzzle Palace, the first book-length study of the National Security Agency. As part of my research I had submitted a Freedom of Information Act request to the Justice Department for documents relating to its highly secret investigation into the illegal use of electronic surveillance by the N.S.A. and the Central Intelligence Agency. The investigation had its roots in a 1974 article by Seymour Hersh in The New York Times that revealed details about a massive domestic intelligence operation, code-named Operation Chaos, run by the C.L.A. In response to the article, President Ford in January 1975 named Vice President Rockefeller to head a commission to look into C.I.A. activities in the United States.
The Rockefeller Commission's final report, issued on June 6, 1975, noted that the intelligence community had engaged in a number of questionable electronic surveillance activities. As a result of the report, Attorney General Edward H. Levi established a secret internal task force to determine the full extent of governmental electronic surveillance in the country.
Over the next year, the task force probed more deeply into the problems of domestic eavesdropping than any part of the executive branch had ever done before, and on June 30, 1976, it issued its final report. Classified "TOP SECRET UMBRA/HANDLE VIA COMINT CHANNELS ONLY," the 175-page document detailed twenty-three categories of questionable eavesdropping operations. Although some activities were immune from prosecution because of the statute of limitations, others were not. "This electronic surveillance activity," said the report about one N.S.A. program, Operation Minaret, "presents prima facie questions of criminality and is well within the limitations period." Nevertheless, because there appeared little likelihood that convictions could be obtained on the basis of the evidence, and because of the possibility that the defense would resort to "graymail," the report recommended that the inquiry be terminated for "lack of prosecutive potential."
James Bamford holds a Juris Doctor degree and is the author of the recently published The Puzzle Palace: A Report on NSA, America's Most Secret Agency (Houghton Mifflin).
November 6, 1982
The information was considered so sensitive that only two copies of the task force's report were produced. One of these was given to George W. Calhoun, chief of the Justice Department's special litigation unit. His job was to examine the legal issues and determine whether or not to prosecute. In his "Prosecutive Summary," issued on March 4, 1977, he recommended to Robert L. Keuch, Deputy Assistant Attor ney General in the criminal division, that the investigation be terminated.
A year and a half later I submitted my F.O.I.A. request. When it arrived at the Justice Department, it was sent to Keuch, who determined that it would apply to the final report of the task force as well as to Calhoun's "Prosecutive Summary." Because of the sensitivity of the documents, Keuch assigned Calhoun to review the materials already in the public domain and to base his declassification decision on that survey. He also decided not to submit the documents to the N.S.A. or the C.I.A. because the agencies were the principal subjects of the investigation and he felt that allow. ing them to review the reports would subvert the criminal justice system.
After ten months, on July 5, 1979, Keuch released the requested documents to me, with some portions deleted.
Several months later the N.S.A. became aware of Keuch's actions and requested that the Justice Department send it copies of the same documents. After a review, N.S.A. Director Adm. Bobby R. Inman wrote to Attorney General Benjamin Civiletti, informing him that the documents contained still-top-secret information and that they should never have been released without first being sent to the N.S.A. Civiletti, believing that the documents had been properly declassified or else realizing that the executive order on classification forbade reclassifying documents released under the F.O.I.A., ignored Inman's protest.
On March 23, 1981, while working on the chapter of my book dealing with the close relationship between the N.S.A. and its supersecret British partner, Government Communications Headquarters in Cheltenham, I sent a letter to George M. (Bill) Gapp, the British senior liaison officer at the N.S.A. In the letter I noted that documents released to me by the government implicated his organization in Operation Minaret, the illegal N.S.A. program directed against American citizens. I asked whether he knew of his organization's involvement in the operation and whether it was currently engaged in any similar activities in the United States. Three weeks later a letter was hand-delivered to my Washington office by the British Embassy, informing me that "it is not the policy of Her Majesty's Government to answer enquiries of this nature."
Apparently notified of my letter by Gapp. N.S.A. Director Lieut. Gen. Lincoln D. Faurer, Inman's replacement, sent a letter to Attorney General William French Smith, requesting another copy of the two Justice Department documents. Smith sent copies to both the N.S.A. and the C.I.A. The two intelligence agencies then identified for the Justice Department a total of 161 lines and another seventyseven words on thirty-four pages covering fourteen cate
ories of information that should be reclassified "TOP SECRET UMBRA."
On July 8, 1981, just over two years after the documents had been released to me, I received a telephone call from Gerald A. Schroeder, a senior attorney with the Justice Department's secretive Office of Intelligence Policy and Review. He asked whether we could discuss a matter concerning the two documents released to me in 1979. I agreed, and on July 23, we inet in the conference room of the Center for National Security Studies in Washington. Also present was my attorney, Mark H. Lynch, a senior staff attorney with the American Civil Liberties Union and one of Washington's leading authorities on national security law.
During the hour-and-a-half meeting, Schroeder said that the two documents had been released "by mistake," that the N.S.A. and the C.I.A. had determined they contained still-classified information and that the Justice Department would like me to return them for further deletions.
I informed Schroeder that I had had the material for two years, that it was already incorporated into my manuscript, that the Carter Administration had believed the information should be declassified and that in any case Executive Order 12065 stated that "classification may not be restored to documents already declassified and released to the public" under the F.O.I.A. In addition, I said that because the information related to illegal activities on the part of the N.S.A. and the C.I.A., I felt it was important for the American public to be informed. Under the circumstances, I told him, I would consider returning the material only if the
N.S.A. released to me other agreed-on information relating to the various illegal operations or allowed me to interview a knowledgeable official on the subject. Schroeder said he would have to check my proposal with N.S.A. and C.1.A. officials and would let me know.
The proposal was not unprecedented. About a year and a half earlier I had negotiated a similar agreement,with N.S.A. general counsel Daniel C. Schwartz. Although under Public Law 86-36 the N.S.A. is virtually excluded from the Freedom of Information Act, I had discovered a loophole in the law that enabled me to obtain more than 6,000 pages of internal N.S.A. newsletters. Of concern to the agency, however, was the fact that scattered through these newsletters were the names and faces of a large percentage of its work force. Appreciating the N.S.A.'s problem, and having no real need for the name of every employee, I agreed not to contest the deletion of the names and photographs, providing Schwartz prepared for me a document detailing the N.S.A. 's entire organizational structure, including the names, titles and internal codes of the senior staff between 1975 and 1980. The proposal was agreed to and in February 1980 I was handed a document that listed more than forty officials.
Following approval-from Director of Central Intelligence William J. Casey, C.I.A. Deputy Director Bobby Inman and N.S.A. Director Faurer-Schroeder informed me that he could arrange a meeting to discuss my proposal. We agreed to meet on August 14 in the editorial conference room of my publisher, Houghton Mifflin, in Boston.
Schroeder was accompanied by general counsel Schwartz and Eugene F. Yeates, the N.S.A.'s Director of Policy. Shortly after the meeting began Schroeder, apparently under pressure from the N.S.A., sought to expand the scope of the meeting by bringing up the question of who else had seen or had copied the documents. This greatly complicated matters. Because the original purpose of the meeting was simply to discuss a compromise proposal, my attorney, as Schroeder knew, had decided not to attend. I asked Schroeder to telephone Lynch from the conference room and explain that he wanted to broaden the agenda.
At one point during their telephone conversation, Schroeder brought up the possibility of using the espionage statute to force the return of the documents. Upon hearing this, Lynch asked to speak with me privately. Once the three officials had left the room, Lynch expressed worry over the tone of the meeting and the fact that I was alone and unrepresented. He advised me to put down the receiver, call Schroeder to the phone, then turn toward the door and keep walking. I agreed, and still have no idea when or how the three officials found their way out of Houghton Mifflin.
Despite the walkout, Schroeder was still interested in negotiating a settlement, but it now appeared that a reasonable solution would be impossible. There was some information, such as the N.S.A.-British link, that I would never compromise on, and I felt certain that the N.S.A. would also view the same information as non-negotiable. I therefore informed Schroeder that I was going to use the documents fully in my book and that all further discussions would be pointless.
On September 24, 1981, I received a registered letter stating: "You are currently in possession of classified information that requires protection against unauthorized disclosure.... Under the circumstances, I have no choice but to demand that you return the two documents. ... Of course, you will have a continuing obligation not to publish or communicate the information."
As if to underscore the point, the Justice Department sent my attorney a letter on November 27 stating that "there should be no misunderstanding of the Government's position that Mr. Bamford holds information that is currently and properly classified" and that failure to return the documents could force the department to resort to an unnamed "post-publication judicial remedy."
Despite the threats, I refused to alter my manuscript or return the documents. From the very start of my research I was aware of the potential for serious problems over my choice of topic. There was probably no cow more sacred within the Federal government than the N.S.A., and no subject more sensitive than signals intelligence.
In 1931 Herbert O. Yardley wrote his classic book. The American Black Chamber, which set off such a national security storm that his widow, Edna, waited half a century before granting permission for a paperback edition-and then only after requesting and receiving permission from the N.S.A. In 1932 Yardley turned out another manuscript about the Black Chamber, this one ghost-written by Marie Stuart Klooz, a young freelance. Titled Japanese Diplomatic
November 6, 1982
Secrets, 1921-1922, it became the first and only manuscript in U.S. history to be seized and impounded by the Federal government for national security reasons. It was not until 1979 that it was, at my request, fully declassified
Finally there was David Kahn, author of The Codebreakers, the monumental study of the history of cryptology which included a chapter on the N.S.A. The agency considered everything from physical surveillance to a black bag job at Kahn's Long Island home to obtain his manuscript. "Disparaging" reviews were drafted and his name was placed on the N.S.A. "watch list," thus subjecting his communications to the N.S.A.'s sophisticated eavesdropping techniques. The agency eventually convinced Kahn's publisher, Macmillan, to secretly give it a copy of the manuscript for review. After first demanding the elimination of the entire chapter on the N.S.A., the agency settled for a single page. A copy of that page was obtained from the papers of a former senior N.S.A. official, and is included in my book.
In light of the foregoing, I was hardly surprised by the letter from the Justice Department. What was surprising. however, was the theory of reclassification. Seldom has the involvement of politics in secrecy been illuminated more clearly. Under the Carter Administration, the Justice Department decided to release the two documents. There was no "mistake." Even Gerald Schroeder has acknowledged that Keuch had for many years been the most experienced official in intelligence and national security matters at the Justice Department; Calhoun had spent ten months studying what could properly be released from the two documents. Both concurred on the declassification. And Civiletti personally went over the summary—and, most likely, the task force report-yet as Attorney General he chose to ignore the N.S.A.'s call for secrecy. That they could have let slip any part of these documents "by mistake" seems utterly inconceivable.
It is one thing for an Administration to adopt a stricter standard of secrecy than its predecessor's. It is entirely another thing to try to enforce that standard retroactively on people who had obtained declassified materials under preceding Administrations. Yet that is precisely what the Reagan Administration attempted to do in my case The problem was Executive Order 12065, which prohibited such actions. To overcome this, President Reagan on April 2 issued a new executive order on secrecy which permits the President or an agency head to "reclassify information previously declassified and disclosed if it is determined in writing that (1) the information requires protection in the interest of national security, and (2) the information may reasonably be recovered." When questioned by the press as to the meaning of the term "reasonably," the Administration refused to rule out the use of surreptitious entry. The new executive order took effect on August 1.
About 350 years ago, Cardinal de Richelieu, chief minis ter to King Louis XIII, declared, "Secrecy is the first essential in affairs of the State." With his new executive order on secrecy, President Reagan has said the same thing.