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Here’s the 1976-77 Top Secret DOJ Criminal File on NSA/CIA Activities That Almost Got James Bamford Jailed

In Archive, Bamford, CIA, DOJ, NSA, Surveillance on October 3, 2014 at 7:31 PM

james-bamford

10/02/2014

James Bamford/TheIntercept:

The tone of the answering machine message was routine, like a reminder for a dental appointment. But there was also an undercurrent of urgency. “Please call me back,” the voice said. “It’s important.”

What worried me was who was calling: a senior attorney with the Justice Department’s secretive Office of Intelligence Policy and Review. By the time I hung up the payphone at a little coffee shop in Cambridge, Mass., and wandered back to my table, strewn with yellow legal pads and dog-eared documents, I had guessed what he was after: my copy of the Justice Department’s top-secret criminal file on the National Security Agency. Only two copies of the original were ever made. Now I had to find a way to get it out of the country—fast.

Without the agency’s knowledge, I had obtained the criminal file that the Justice Department had opened on the NSA. Marked as Top Secret, the file was so sensitive that only two original copies existed. Never before or since has an entire agency been the subject of a criminal investigation. Senior officials at the NSA were even read their Miranda rights.

The secret investigation grew out of the final report by the Rockefeller Commission (PDF/18.5MB), a panel that had been set up by President Gerald Ford to parallel the Church Committee. Issued on June 6, 1975, the report noted that both the NSA and CIA had engaged in questionable and possibly illegal electronic surveillance. As a result, Attorney General Edward Levi established a secret internal task force to look into the potential for criminal prosecution. Focusing particularly on NSA, the task force probed more deeply into domestic eavesdropping than any part of the executive branch had ever done before.

I had heard rumors from several sources about such a probe, so I thought it would be worth requesting a copy of the file under FOIA. Nevertheless, I was surprised when the documents, with relatively few redactions, turned up at my door 10 months later. They included a lengthy, detailed “Report on Inquiry into CIA-Related Surveillance Activities” that laid out the investigation in stark detail, as well as a shorter draft “prosecutive summary” evaluating the potential for criminal prosecution. I was shocked that the Justice Department had released them to me without notifying the NSA. An official at Justice later told me that it was standard procedure not to notify the object of a criminal investigation (think John Gotti) once it is completed and requested under FOIA.

It turned out that just as with its investigations into organized crime, the Justice Department had received little cooperation from the potential criminal defendant – in this case, the NSA. Noting that the attitude of agency officials “ranged from circumspection to wariness,” the file made clear that the NSA had stonewalled investigators at every step. “One typically had to ask the right question to elicit the right answer or document,” an attorney for the Justice Department reported. “It is likely, therefore, that we had insufficient information on occasion to frame the ‘magic’ question.”

But the agency’s obstructionism didn’t prevent the Justice Department from finding evidence of serious wrongdoing. The draft prosecutive summary of the Justice Department’s investigative task force, dated March 4, 1977, and classified top secret detailed 23 categories of questionable eavesdropping operations. Five of the illegal activities were immune from prosecution because the statute of limitations had passed, and seven were found to “clearly possess no prosecutive potential.” The rest, however, were fair game for criminal prosecution. Discussing the agency’s Operation Minaret, for example, the full report concluded: “This electronic surveillance activity presents prima facie questions of criminality and is well within the limitations period.”

The prosecutive summary had been sent to Attorney General Benjamin Civiletti for further action. But any attempt to prosecute top officials of America’s most secret agency, the file warned, would almost certainly be met by finger-pointing and scapegoating. “There is likely to be much ‘buck-passing’ from subordinate to superior, agency to agency, agency to board or committee, board or committee to the President, and from the living to the dead,” the report cautioned.

In addition, calling the crimes “an international cause célèbre involving fundamental constitutional rights of United States citizens,” the task force pointed to the likelihood that the NSA would put political pressure on anyone who dared to testify against it. What’s more, the report added, defense attorneys for senior NSA officials would likely subpoena “every tenuously involved government official and former official” to establish that the illegal operations had been authorized from on high. “While the high office of prospective defense witnesses should not enter into the prosecutive decision,” the report noted, “the confusion, obfuscation, and surprise testimony which might result cannot be ignored.”

The report’s prosecutive summary also pointed to the NSA’s top-secret “charter” issued by the Executive Branch, which exempts the agency from legal restraints placed on the rest of the government. “Orders, directives, policies, or recommendations of any authority of the Executive branch relating to the collection . . . of intelligence,” the charter reads, “shall not be applicable to Communications Intelligence activities, unless specifically so stated.” This so-called “birth certificate,” the Justice Department report concluded, meant the NSA did not have to follow any restrictions placed on electronic surveillance “unless it was expressly directed to do so.” In short, the report asked, how can you prosecute an agency that is above the law?

If the first shock to top officials at the NSA was the discovery that they were being investigated as potential criminals, the second shock was that I had a copy of the top secret file on the investigation. When the NSA discovered that the file was in my possession, director Bobby Inman wrote to the attorney general informing him that the documents contained classified information and should never have been handed over to me. But Civiletti, apparently believing that the file had been properly reviewed and declassified, ignored Inman’s protest.

Then, on January 20, 1981, Ronald Reagan was sworn into office. At the Justice Department, Civiletti was replaced by a new attorney general with a much more accommodating attitude when it came to the NSA: William French Smith.

A few months later, while I was working on a chapter of my book that dealt with the Five Eyes partnership, I sent a letter to George Gapp, the senior liaison officer from GCHQ, the NSA’s British counterpart. In the letter, I noted that documents released to me by the Justice Department implicated his agency in Operation Minaret, the illegal NSA program directed against American citizens. I asked whether he knew of GCHQ’s involvement in the operation and whether the agency was currently engaged in any similar activities in the United States.

The letter apparently set off a firestorm, both at the NSA and GCHQ. Lt. Gen. Faurer, who had replaced Inman as director, sent a letter to the new attorney general again pointing out that the documents in my possession contained top-secret material. Considering that they accused his agency of being a criminal enterprise, they were also embarrassing to the NSA, and potentially explosive. The decision was made to try to get them back from me before the publication of my book.

Thus the answering machine message I heard on that steamy day in Cambridge, while I was quietly working away at a back table in the Algiers Coffee House. The call was from Gerald Schroeder, a senior attorney with the Justice Department. When I called him back, he asked whether we could meet in Washington to discuss the file that had been released to me by his own department. The Reagan Justice Department, it seemed, now wanted to reverse the decision of the Carter Justice Department and get the documents back.

Long before the arrival of the internet, and the ability to transfer documents at the tap of a finger, I was very concerned about what the agency might do to retrieve the physical copy of the file in my possession. Years before, when David Kahn had written his monumental history of cryptology, the agency had considered placing him under surveillance and conducting a “surreptitious entry” into his Long Island home to steal the manuscript prior to publication. Decades earlier, after Herbert Yardley wrote about the Black Chamber, the predecessor to NSA, the Justice Department actually did steal the manuscript for his second book, preventing it from ever being published.

My first thought was to quickly make a duplicate of the file and get the copy out of the country. That would protect the documents not only from theft, but also from any court order prohibiting me from revealing their contents. With a copy beyond the jurisdiction of U.S. courts, a foreign newspaper could always publish the documents.

I called a close friend who worked for the Insight Team, the investigative unit of London’s Sunday Times. She agreed to help. It turned out that an American journalist she knew was flying from Boston to London that night, and she quickly arranged for him to take the documents with him and give them to her to hide.

That night I met the journalist on a dark Boston street corner and passed him a package, with the understanding that I was not to tell him what it contained. He wanted as little information as possible, in case he was questioned later. Early the next morning, my friend at the Sunday Timescalled from London with a code indicating that all was well and that the documents were in a secure place.

With the documents safely beyond the reach of the Justice Department, I next turned to my next problem – finding an attorney to represent me. With the advance on my book totaling $7,500, spread over three years, I was in no position to seek out a white-shoe law firm on Beacon Hill. Instead, I called the ACLU’s Center for National Security Studies and explained my problem. They immediately put me in touch with Mark Lynch, a staff attorney at the center who had considerable experience going up against intelligence agencies, including the NSA. Lynch agreed to represent me.

On July 23, two weeks after I had received the phone call at the coffee shop, Lynch and I met with Schroeder for an hour and a half in the conference room of the center, a cluster of rooms in the stately Stewart Mott house on Capitol Hill. Schroeder began by insisting that the two documents had been released to me “by mistake.” The NSA and the CIA had determined that they contained information that was still classified, he said, and the Justice Department would like me to return them.

I politely informed Schroeder that the documents had been in my possession for more than two years, that material from them was already incorporated into my manuscript, and that the Carter administration had spent 10 months reviewing them before releasing the documents to me. There had been no mistake. In addition, because the documents raised questions about criminal activities by the NSA and CIA, I felt it was important for the public to be informed. In the end, we agreed to another meeting – but this time I insisted that since I had traveled to Washington for the first meeting, they would come to Boston for the next one.

The second meeting took place on August 14, in the editorial conference room of my publisher, Houghton Mifflin, on Beacon Hill. This time, the government dispensed with any attempt at politeness. Accompanying Schroeder were the NSA’s general counsel, Daniel Schwartz, and the agency’s director of policy, Eugene Yeates. They immediately began by interrogating me. How many copies of the document I had made? Whom I had given them to? Where were the documents now located? I responded that none of those questions were on the agenda; since my attorney could not be present, we had agreed in advance that the meeting was simply to allow them to explain the government’s position. Any questions, I said, would have to go through Mark Lynch. I pointed to the phone.

After placing a call to Lynch, Schroeder brought up the possibility of using the espionage statute to force me to return the documents. Lynch immediately asked to speak with me privately.

Once the three officials left the room, Lynch expressed worry over the way the meeting was going. The officials could have a subpoena or a restraining order or a warrant for my arrest in their pocket, he said. He advised me to put down the receiver, call Schroeder to the phone, leave the room – and keep walking. To this day, I still have no idea how long the three officials waited for me to return before finding their way out of the publishing house and back to Washington.

The fight quickly escalated. On September 24, after we informed Schroeder that I was going to use the documents in my book and that all further discussions would be pointless, I received a registered letter. “You are currently in possession of classified information that requires protection against unauthorized disclosure,” Schroeder wrote. “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.” To emphasize the point, on November 27 the Justice Department sent my attorney a letter 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 federal prosecutors to resort to an unnamed “post-publication judicial remedy.”

Despite the threats, I refused to alter my manuscript or return the documents. Instead, we argued that according to Executive Order 12065, “classification may not be restored to documents already declassified and released to the public” under the Freedom of Information Act. That prompted the drama to move all the way up to the White House. On April 2, 1982, President Reagan signed a new executive order on secrecy that overturned the earlier one and granted him the authority to “reclassify information previously declassified and disclosed.”

We responded by citing the legal principle of ex post facto, arguing that even if the new executive order was legal, Reagan could not retroactively enforce it against me. The Puzzle Palace was published on schedule, in September 1982, with no deletions or alterations to the text. And ever since then, the NSA’s criminal file – still officially top secret, according to the NSA – has remained on my bookshelf.

James Bamford (born September 15, 1946) is an American bestselling author and journalist noted for his writing about United States intelligence agencies, especially the National Security Agency (NSA). Bamford has taught at the University of California, Berkeley, as a distinguished visiting professor and has written for The New York Times Magazine, The Atlantic, Harper’s, and many other publications. In 2006, he won the National Magazine Award for Reporting for his article, “The Man Who Sold The War,” published in Rolling Stone.

  1. […] our lives be it in the classical taxi business or in other occupations. Thus a solution to general criminal activities lies in the fortification of the security machine of the state. Coincidentally the State Government […]

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