01/17/2019 MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT AND IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MEMORANDUM OF LAW IN
OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT AND IN SUPPORT OF PLAINTIFF’S
MOTION FOR SUMMARY JUDGEMENT
____________________________
Grant F. Smith
IRmep
info@IRmep.org
For process service:
Grant F. Smith c/o IRmep
1100 H St. NW Suite 840
TABLE OF CONTENTS
II.
Plaintiff is entitled to summary judgement
A.
NARA’S Exemption 1 Glomar Response is Unlawful
C.
NSC Affidavit "National Security Threat" assertions are made
in bad faith
D.
FOIA exemptions do not provide blanket cover for “breaking
the law”
D.
George W. Bush presidential records are releasable
III.
Defendant’s motion for summary judgement should be denied.
A.
NARA has yet to conduct a search for responsive records
B.
NARA has not released responsive documents it possesses
C.
Supplemental U.S. State Department input would not
meaningfully contribute to this proceeding.
D.
In camera review would meaningfully contribute to this
proceeding.
TABLE OF AUTHORITIES
Cases
ACLU v. CIA,
710 F.3d (D.C. Cir. 2013)..................................................................................
27
ACLU vs Department of Defense, 628 F.3d....................................................................................
47
Am. Civil Liberties Union v. CIA
(“ACLU”), 710 F.3d (D.C. Cir. 2013)....................................
20
Am. Civil Liberties Union v. U.S. Dep’t
of Defense, 628
F.3d (D.C. Cir. 2011)..............................
57
Am. Historical Ass’n v. NARA,
516 F. Supp. 2d (D.D.C. 2007)................................................ 53
Am. Immigration Council v. DHS, 950 F. Supp. 2d (D.D.C. 2013)..............................................
54
Brown v.
FBI,
873 F. Supp. 2d (D.D.C. 2012).............................................................................
18
Church
of Scientology of Cal., Inc. v. Turner, 662 F.2d (D.C. Cir. 1980)..........................................
18
Citizens
for Responsibility and Ethics in Washington v. DOJ,
746 F.3d (D.C. Cir. 2014).................
15
Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d (D.C. Cir. 1980).........................................
16
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d (D.D.C. 2009)..................................
16
DOJ v.
Tax Analysts, 492 U.S. (1989)..........................................................................................
16
EPIC v.
DHS,
384 F. Supp. 2d (D.D.C. 2005)...........................................................................
15
EPIC v.
DHS,
999 F. Supp. 2d (D.D.C. 2013)...........................................................................
15
EPIC v.
DOJ,
511 F. Supp. 2d (D.D.C. 2007)............................................................................
15
Estelle v. Gamble,
429 U.S., 97 S.Ct. 285......................................................................................
18
Freedom Watch, Inc. v. NSA, 49 F. Supp. 3d (D.D.C. 2014).......................................................
53
Gosen v.
Citizen and Immigration Serv., 75 F. Supp. 3d (D.D.C. 2014).........................................
18
King v.
DOJ,
830 F.2d (D.C. Cir. 1987).......................................................................................
18
Lesar v. Dep't of Justice,
636 F.2d (D.C.Cir.1980).........................................................................
47
Milner
v. Dep’t of the Navy, 562 U.S. (2011)..................................................................................
15
Mobley v. CIA,
806 F.3d (D.C. Cir. 2015)...................................................................................
56
Moore v. CIA,
666 F.3d (D.C. Cir. 2011).....................................................................................
27
Nat’l
Archives & Records Admin. v. Favish, 541 U.S. (2004).........................................................
17
Neuman
v. United States, 70 F. Supp. 3d (D.D.C. 2014)..............................................................
16
Neuman
v. United States, 70 F. Supp. 3d 416 (D.D.C. 2014).................................................
16, 52
PETA v.
NIH,
745 F.3d (D.C. Cir. 2014)..................................................................................
18
Pub.
Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d (D.C. Cir. 2008)..............................................
15
Union Bankers Ins. Co. v.
Shelton,
889 S.W.2d...............................................................................
19
Vaughn v. Rosen, 484 F.2d (D.C. Cir. 1973).................................................................................
53
Statutes
1917 Espionage Act.....................................................................................................................
50
22 USC §2799aa-1........................................................................................................................
44
Freedom of Information Act,
5 U.S.C. § 552..........................................................
15, 16, 17, 52
Other Authorities
“Memorandum from Henry Kissinger to President Nixon, 'Israeli Nuclear
Program',” July 19, 1969, Richard Nixon Presidential
Library, National Security Council Files, box 612, Israeli
Nuclear Program...................................................................................................................................................
24
“Netanyahu thanks US for blocking push for Middle East nuclear arms ban”
The Guardian, May
23, 2016...................................................................................................................................................
34
“The 43 times US has used veto power against UN resolutions on Israel”
Middle East Eye, December 18, 2017....................................................................................................................................
37
A. Jay Wagner, “Controlling Discourse, Foreclosing Recourse: The Creep Of
The Glomar Response,” Slane College of Communications and
Fine Arts, Bradley University...................................
8
Adam Entous, “How Trump and Three Other US Presidents Protected Israel’s
Worst kept Secret: Its Nuclear Arsenal”
The New Yorker,
June 18, 2018....................................
13, 22, 27, 28, 31, 32
Arab Center For Research And Policy Studies. (2012). Measurement of Arab
Public, Opinion Project. Arab Opinion Index 2011.......................................................................................................
33
Congresswoman Eleanor Holmes Norton letter, March 30, 2018...........................................
45
David Stout “Israel’s Nuclear Arsenal Vexed Nixon.” New York Times,
November 29, 2007.
41
Edwin S. Townsley and Clarence A. Robinson
Critical Technology Assessment in Israel and NATO Nations April,
1987, Office of the Under Secretary of Defense..................................................
35, 49
Grant F. Smith, “Four Presidents Conspired To Give $100 Billion to Israel:
Secret White House Letters Buttress Ongoing US Arms Export
Control Act Violations,” Antiwar.com, June 25, 2018
46
Grant Smith, “CIA Cover-Up
Thwarted FBI’s Nuclear Diversion Investigations, Evidence
that missing uranium went to Israel withheld since 1968,”
Antiwar.com, September 7, 2015.................. 45
Steven Aftergood, “ISOO Director Fitzpatrick Moves to NSC” Secrecy News,
Federation of American Scientists, January 11, 2016.....................................................................................................
29
The Nuclear Materials and Equipment Corporation (NUMEC) and
the diversion of US government weapons-grade uranium to
Israel, Institute for Research: Middle Eastern Policy, Inc......
44
U.S. Central Intelligence Agency 1974
Special National Intelligence Estimate, Prospects for
Further Proliferation of Nuclear Weapons.........................................................................................................................
35
PRELIMINARY STATEMENT
This case arises out of Plaintiff’s June 29, 2018 Freedom
of Information Act (FOIA) request for
George W. Bush Presidential Library and the Clinton
Presidential Library
letters that Defendants refused to properly process.
Plaintiff’s central argument is that because all U.S.
assistance to Israel is unlawful, none of the usual FOIA and
other commonly applied means for denying release apply to
narrow requests for release of the instruments that
facilitate the fraud—including in this case presidential
letters promising Israel the U.S. will thwart the Treaty on
the Non-Proliferation of Nuclear Weapons and undermine the
Arms Export Control Act. Also, the policy under which
Defendants withheld responsive documents under Glomar,
so-called policy “ambiguity” about Israel’s nuclear weapons,
is now entering its 50th year of existence. Such
an abundance of formerly classified information about
“ambiguity” has been properly released that this Glomar
response is untenable. Plaintiff therefore challenges the
Defendant’s Glomar response and motion for summary judgement
which claim the National Archives and Records Administration
need not even conduct a bona fide search for responsive
materials.
The explosion in the misuse of the Glomar response, “we can
neither confirm nor deny the existence or nonexistence of
records responsive to your request” is a tactic not only
dominating responses to FOIA requests in federal courts, it
is now beginning to infest even state and local courthouses.
Casual, reflexive application of Glomar—with no effort
invested in researching its appropriateness—can properly be
seen as a way to control discourse and foreclose recourse.
The Department of Justice and the Office of Information
Policy regularly create guides for federal agency reference
in managing the FOIA. Beginning in 1986, the section
detailing use of the Glomar response has called such a reply
extraordinary and cautioned against utilization.[1]
Nevertheless agencies are flooding courts with Glomar
responses, confident that if their conclusory affidavits
asserting their “right” to Glomar are denied (an
increasingly rare occurrence), at very least the essentially
cost-free invocation of Glomar will add many years and
thousands of dollars to the cost of plaintiff efforts to
obtain information about the function of government. See A.
Jay Wagner, “Controlling
Discourse, Foreclosing Recourse: The Creep Of The Glomar
Response,” Slane College of Communications and Fine
Arts, Bradley University
.
The Glomar doctrine is in large measure a judicial
construct, an interpretation of FOIA exemptions that flows
from their purpose rather than their express language.
One of the most abusive aspects of Glomar is that it allows
FOIA officials to preemptively deny records without even
bothering to conduct a bona fide search—under ever
expanding, ever more dubious, post-9/11 claims of “national
security.”
A second is that classification authorities are allowed to
weigh in and speculate—without troubling themselves to
examine original classification markings (or whether there
are any)—that if hypothetical documents did exist, they
would certainly (once again, in the opinion of non-original
classifiers) be withheld on national security grounds.
Affidavits brimming with such speculation are then given
great weight in FOIA court. NARA takes this to a new low by
having its preemptive Glomar response certified by a former
NARA employee now working at the National Security Council.
The Glomar response
provides a growing loophole in the otherwise solid edifice
of the FOIA appeals structure, undermining the very purpose
of the law and its well-honed judicial review process.
Expansion of the Glomar response threatens to unravel the
fabric of access to government records through FOIA.
Challenging a Glomar response is an arduous task, and
defeating a claim only places the requester back at the
beginning of the labyrinth, appealing the exemption itself.
Nevertheless, Plaintiff indeed challenges this Glomar
response by providing overwhelming evidence of bad faith
present in the National Security Council affidavit submitted
in the interest of having this case dismissed.
Plaintiff believes it would be prejudicial for this court
to accept such a misleading, counter-factual and error-laden
affidavit written by a former NARA official now working at
the National Security Council filed in support of dismissal.
The affidavit makes an incredibly large number of false
claims and hypothetical assertions about a 50-year old
policy that has been officially acknowledged by the U.S.
government. It is contemptuous of the record. Plaintiff also
challenges Defendant claims about the applicability of FOIA
exemptions and E.O. 13526, which expressly forbid using
government secrecy to conceal unlawful acts.
The Court should deny the Defendant’s motion for summary
judgement and order NARA to conduct—as it should have done
more than half a year ago—stop the sock puppetry and search
for and release responsive documents. If necessary, the
court should also review the letters
in camera to
determine whether the letters were ever classified by an
original classification authority as defendants speculate,
they indeed must have been, or whether they fall within 6
enumerated categories of presidential materials that may be
withheld from the Bush administration records. Plaintiff believes
they are probably not classified since their contents—for
all intents and purposes—were drafted by the Israeli
government, which also maintains copies of them to circulate
and extort concessions from various U.S. administrations and
possibly government agencies. This bona fide FOIA process
for records would help Americans better understand the
functions of government and is entirely warranted for three
reasons. First, the specific content of the letters has already been officially acknowledged and previously released through official disclosures. The public domain exception to Glomar has irrefutably been triggered. Second, because U.S. aid to Israel became unlawful under the Symington and Glenn Amendments to the Arms Export Control Act (formerly they were part of the US Foreign Assistance Act) in 1976, FOIA exemptions and classification under E.O. 13526 do not allow continued secrecy through claims that such information is properly classified. That is because the primary function of the letters is to compel the U.S. to unlawfully provide the majority of its foreign aid budget to Israel by violating the Treaty on the Non-Proliferation of Nuclear Weapons. That is done because of elected officials’ fear of Israel’s U.S. lobby, not national security concerns. This fact is well-documented in official documents developed in the run-up to “ambiguity” policy in the Nixon administration. Third, George W. Bush administration records are not exempt from a FOIA or PRA search and release process. Records requests have already been properly processed, proving the records are now generally open to the public. There is also no evidence that the letters fall within six enumerated exempt categories or that they have been exempted from release by the Archivist, as required under PRA. BACKGROUND
Plaintiff Grant F. Smith is a public interest researcher and
founder of the Institute for Research: Middle Eastern
Policy, Inc. (Compl. 2). On June 29, 2018, he filed a FOIA
request to the George W. Bush Presidential Library and the
Clinton Presidential Library, both operated and maintained
by Defendant, NARA, requesting release of presidential
letters to Israel, which pledge not to pressure the Israeli
government into signing the Treaty on the Non-Proliferation
of Nuclear Weapons (NPT) or discuss Israel's nuclear weapons
program. (Compl., Exhibit A and B).
On July 5, 2018 the Clinton Presidential Library denied
Plaintiff’s FOIA request, which it numbered 2018-0887-F by
issuing a "Glomar" response citing Section 3.3(b)(1) of E.O.
13526.On July 6, 2018 the George W. Bush Presidential
Library denied Plaintiff’s FOIA request, which it numbered
2018-0219-F issuing a "Glomar" response citing Section
3.3(b)(1) of E.O. 13526. (Compl., Exhibit C and D).
Both denial letters offered expert consultation at the
administrative level, stating "If you would like to discuss
our response before filing an appeal to attempt to resolve
your dispute without going through the appeals process, you
may contact our FOIA Public Liaison John Laster for
assistance at: Presidential Materials Division, National
Archives and Records Administration, 700 Pennsylvania
Avenue, NW, Room G-7, Washington, DC 20408-0001; email at
libraries.foia.liaison@nara.gov; telephone at 202-357-5200;
or facsimile at 202-357-5941."
Plaintiff contacted John Laster on July 6 in an attempt to
resolve his dispute, stating, “1. The FOIA denial neither
confirms nor denies the existence of the letter in question,
reported in The New
Yorker
, claiming " The fact of the existence or nonexistence of
records containing such information, unless of course the
subject has been officially acknowledged, would be
classified for reasons of national security under Section
3.3(b)(1) of E.O. 13526." We do not believe that is so,
because President Clinton would not have classified a letter
demanded by, and then given to, the leader of a foreign
government. Also, many presidential materials, whether
acknowledged or not, are unclassified. Do you believe such a
blanket response complies with FOIA and is proper? 2. The
speed of the FOIA denial seems to indicate no search or
examination of the requested letter was even attempted.
Do you
believe such an assumption‐laden
administrative process complies with FOIA and is proper? 3.
The purpose of the letters (Clinton's was only the first of
four) is to ensure that U.S. Presidents do not comply with
longstanding Arms Export Control Act provisions conditioning
U.S. foreign assistance to foreign nuclear weapons states
that are not signatories to the Treaty on the Non‐Proliferation
of Nuclear Weapons (NPT). Section 1.7 (2) of E.O. 13526
prohibits classification of information to "conceal
violations of the law." Do you concur that classifying the
Clinton letter in order to foster non‐compliance
with the AECA by continuing to provide foreign aid to a non‐signatory
nuclear state would be a violation of E.O. 13526? Do you
agree that public release of such a letter to foster public
debate would only improve governance?”
(Compl.,
pages 4-5).
After waiting one week for a response from NARA's Presidential
Materials Division, and not receiving one during that
timeframe, Plaintiff appealed both FOIA denials. (Compl.,
Exhibit F and G). Defendants failed to respond to the
appeals within the statutory time frame allowed by FOIA, and
on August 31, 2018 Plaintiff filed this present action.
On October 10, 2018 Defendant responded to the complaint
stating, “Plaintiff is not entitled to compelled production
of any records exempt from disclosure by one or more
exemptions enumerated in the FOIA, 5 U.S.C. § 552.” (ECF 8,
p5) On December 20, Defendants filed a motion for summary
judgement to dismiss the case. ARGUMENT
The Freedom of Information
Act, 5 U.S.C. § 552, was enacted “to facilitate public
access to Government documents” and “was designed to pierce
the veil of administrative secrecy and to open agency action
to the light of public scrutiny.”
Citizens for Responsibility and Ethics in Washington v. DOJ, 746
F.3d 1082, 1088 (D.C. Cir. 2014)
The underlying
purpose of the FOIA
is “to ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed.”
EPIC v. DHS, 999 F. Supp. 2d 24, 29 (D.D.C. 2013)
(quoting John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). “In
enacting FOIA,
Congress struck the balance it thought right—generally
favoring disclosure, subject only to a handful of specified
exemptions—and did so across the length and breadth of the
Federal Government.”
Milner v. Dep’t of the Navy, 562 U.S. 562, 571 n.5
(2011)
. As a result, the
FOIA “mandates a strong presumption in favor of disclosure.”
EPIC v. DOJ, 511
F. Supp. 2d 56, 64 (D.D.C. 2007)
(internal citations
omitted).
The FOIA specifies that
certain categories of information may be exempt from
disclosure, “[b]ut these limited exemptions do not obscure
the basic policy that disclosure, not secrecy, is the
dominant objective of the Act.”
Pub. Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C.
Cir. 2008)
. Therefore FOIA
exemptions “must be
narrowly construed.” Id. “The statute’s goal is broad
disclosure, and the exemptions must be given a narrow
compass.” Milner,
562 U.S. at 563 (internal citations omitted). Furthermore,
“the burden is on the agency to sustain its action.” 5
U.S.C. § 552(a)(4)(B); see also
EPIC v. DHS, 384 F. Supp. 2d 100, 106 (D.D.C. 2005)
. Where the government
has not carried this burden, summary judgment in favor of
the Plaintiff is appropriate.
DOJ v. Tax Analysts,
492 U.S. 136, 142 (1989)
;
Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir.
1980)
. I. Standard of Review
Summary judgment may be
granted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a)
. “A genuine issue of
material fact is one that would change the outcome of the
litigation.” EPIC v.
DHS, 999 F. Supp. 2d 24, 28 (D.D.C. 2013)
. FOIA
cases are typically
decided on motions for summary judgment. Id.; see
Defenders of Wildlife
v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.
2009)
. A district court
reviewing a motion for summary judgment in a FOIA
case “conducts a de
novo review of the record, and the responding federal agency
bears the burden of proving that it has complied with its
obligations under the FOIA.”
Neuman v. United States,
70 F. Supp. 3d 416, 421 (D.D.C. 2014)
; CREW, 746 F.3d at
1088; see also 5 U.S.C. § 552(a)(4)(B). The court must
“analyze all underlying facts and inferences in the light
most favorable to the FOIA requester,” and therefore
“summary judgment for an agency is only appropriate after
the agency proves that it has ‘fully discharged its [FOIA]
obligations.’” Neuman, 70 F. Supp. 3d at 421. )
In some cases, the
agency may carry its burden by submitting affidavits that
“describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the
record nor evidence of agency bad faith.”
ACLU v. DOJ, ___
Fed App’x ___, 2016 WL 1657953, at *1 (D.C. Cir. Apr. 21,
2016).
“In Glomar cases, courts may grant summary judgment on the
basis of agency affidavits that contain ‘reasonable
specificity of detail rather than merely conclusory
statements, and if they are not called into question by
contradictory evidence in the record or by evidence of
agency bad faith.’”
Elec. Privacy Info. Ctr., 678 F.3d at 931 (quoting
Gardels, 689 F.2d
at 1105). However, “in the context of a Glomar response, the
public domain exception is triggered when `the prior
disclosure establishes the existence (or not) of records
responsive to the FOIA request,' regardless whether the
contents of the records have been disclosed."
Marino v. Drug Enforcement Admin., 685 F.3d at 1081 (quoting Wolf,
473 F.3d at 379). II. Plaintiff is entitled to
summary judgement
The FOIA
provides that every
government agency shall “upon any request which (i)
reasonably describes such records and (ii) is made in
accordance with published rules . . . make the records
promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).
Despite the general “pro disclosure purpose” of the statute,
Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 174 (2004)
, the FOIA provides
for nine exemptions. These exemptions outline “specified
circumstances under which disclosure is not required.”
Gosen v. Citizen and
Immigration Serv., 75 F. Supp. 3d 279, 286 (D.D.C. 2014)
; see 5 U.S.C. §
552(b). In a FOIA case, the “agency bears the burden of
establishing that an exemption applies.”
PETA v. NIH, 745
F.3d 535 (D.C. Cir. 2014)
. The agency may “meet
this burden by filing affidavits describing the material
withheld and the manner in which it falls within the
exemption claimed.” King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987)
. However, it is not
sufficient for the agency to provide “vague, conclusory
affidavits, or those that merely paraphrase the words of a
statute.” Church of Scientology of Cal., Inc. v. Turner, 662 F.2d 784, 787
(D.C. Cir. 1980)
(per curiam). When an
agency invokes an exemption, “it must submit affidavits that
provide the kind of detailed, scrupulous description [of the
withheld documents] that enables a District Court judge to
perform a de novo review.”
Brown v. FBI, 873
F. Supp. 2d 388, 401 (D.D.C. 2012)
(internal quotation
marks omitted). Again,
“In Glomar
cases, courts may grant summary judgment on the basis of
agency affidavits…if they are not called into question by
contradictory evidence in the record or by
evidence of agency bad faith.’” Elec. Privacy Info. Ctr., 678 F.3d
at 931 (quoting Gardels, 689 F.2d at 1105).
Finally, a document filed
pro se is “to be
liberally construed,”
Estelle v. Gamble, 429 U.S., at 106, 97 S.Ct. 285
, and “a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers,” ibid. (internal quotation marks
omitted). Cf. Fed. Rule Civ. Proc. 8(f) (“All pleadings
shall be so construed as to do substantial justice”).
However, “in
the context of a Glomar response, the public domain
exception is triggered when `the prior disclosure
establishes the existence (or not) of records responsive to
the FOIA request,' regardless whether the contents of the
records have been disclosed."
Marino v. Drug
Enforcement Admin., 685 F.3d at 1081 (quoting Wolf, 473
F.3d at 379). A. NARA’S Exemption 1 Glomar
Response is Unlawful
Bad faith exists when a party “seeks to shield itself from
liability by denying, in bad faith and without probable
cause…” Freeman &
Mills, Inc. v. Belcher Oil Co., 900 P. 2d 669 - Cal:
Supreme Court 1995. Bad faith can be established when a
party shows the other’s “intent to deceive…”
Union Bankers Ins. Co. v.
Shelton,
889 S.W.2d at 281-82
and can demonstrate
(1) the making of a representation. (2) the falsity of that
representation, (3) reliance…on that representation, (4)
…intent to deceive…with the misrepresentation, and (5) the
materiality of the representation.
Darby v. Jefferson
Life Ins. Co., No. 01-91-00255-CV, ___ S.W.2d ___, 1995
WL 258120 (Tex. App.— Houston [1st Dist.] 1995, n.w.h.
In the context of a Glomar response, the public domain
exception is triggered when `the prior disclosure
establishes the existence (or
not) of records responsive to the FOIA request,' regardless
whether the contents of the records have been disclosed." Marino, 685
F.3d at 1081 (quoting Wolf, 473
F.3d at 379).
Classified U.S. government documents about the longstanding,
coerced U.S. policy of “ambiguity” towards Israel’s nuclear
weapons program—a policy enacted at the behest of the
Israeli government and under pressure of retaliation on U.S.
elected officials from Israel’s powerful U.S. lobby for
non-compliance—has been officially released and resides in
the public domain. The policy has been in effect since
1969—fully half a century. Israel’s demands for presidential
letters from Clinton, Bush, Obama and Trump are merely the
continuation of this shrill foreign demand first made in
1969—and the grudging, written acquiescence of U.S.
presidents after thorough consideration, and rejection of
options advanced by multiple agencies far more in line with
U.S. national interests.
“[W]hen an agency has officially acknowledged otherwise
exempt information through prior disclosure, the agency has
waived its right to claim an exemption with respect to that
information.” Am.
Civil Liberties Union v. CIA (“ACLU”), 710 F.3d 422, 426
(D.C. Cir. 2013)
. This “official
acknowledgement” principle applies in the Glomar context,
and “the plaintiff can overcome a Glomar response by showing
that the agency has already disclosed the fact of the
existence (or nonexistence) of responsive records, since
that is the purportedly exempt information that a Glomar
response is designed to protect.” Id. at 427. The plaintiff
“must bear the initial burden of pointing to specific
information in the public domain that appears to duplicate
that being withheld.” Id. (quoting Wolf, 473 F.3d at 378).
The D.C. Circuit has narrowly construed the official
acknowledgement principle, however, and the plaintiff must
satisfy three stringent criteria. See
Associated Press v. FBI, No. 16-cv-1850 (TSC), 2017 WL 4341532, at
*7 (D.D.C. Sept. 30, 2017) (a claim that information has
been officially acknowledged must meet a “strict test”).
“First, the information requested must be as specific as the
information previously released.” Wolf, 473 F.3d at 378
(quoting Fitzgibbon, 911 F.2d at 765). “Prior disclosure of
similar information does not suffice; instead, the specific
information sought by the plaintiff must already be in the
public domain by official disclosure. The insistence on
exactitude recognizes ‘the Government’s vital interest in
information relating to national security and foreign
affairs.’” Id. (quoting Public Citizen v. Dep’t of State, 11
F.3d 198, 203 (D.C. Cir. 1993) (additional citations
omitted); see also Competitive Enter. Inst. v. NSA, 78 F.
Supp. 3d 45, 54 (D.D.C. 2015) (“Plaintiffs in this case must
therefore point to specific information in the public domain
establishing that the NSA has [the claimed information.]”).
“Second, the information requested must match the
information previously disclosed.” Wolf, 473 F.3d at 378
(quoting Fitzgibbon, 911 F.2d at 765). If there are
“substantive differences” between the two, an official
acknowledgment claim must fail. Am. Civil Liberties Union v.
DoD (“ACLU”), 628 F.3d 612, 621 (D.C. Cir. 2011). “Third, .
. . the information requested must already have been made
public through an official and documented disclosure.” Wolf,
473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765)
(additional citations omitted). Key to this element is that
the source must be official; non-governmental releases, or
even anonymous leaks by government officials, do not
qualify. See, e.g., ACLU, 628 F.3d at 621-22; Competitive
Enter. Inst., 78 F. Supp. 3d at 55. “[M]ere speculation, no
matter how widespread,” is not enough. Wolf, 473 F.3d at
378.
Elements in the “Israel Nuclear Letters” match information
already released in 1969 parameters surrounding “nuclear
ambiguity” and the policy adopted by the Nixon
administration. The essential three Israeli demands to be
met in all four letters mentioned in the Adam Entous “New
Yorker” article are first, that the U.S. would not pressure
Israel to sign the Treaty on the Non-Proliferation of
Nuclear Weapons. Second, that the U.S. administration would
not force Israel to give up its nuclear weapons. Third, that
the U.S. administration would not publicly discuss the fact
of Israel’s nuclear weapons. See Adam Entous, “How Trump and
Three Other US Presidents Protected Israel’s Worst kept
Secret: Its Nuclear Arsenal”
The New Yorker,
June 18, 2018
.
These Israeli government demands had already all been met by
president Richard Nixon administration policy. Though
followed by the Ford, Carter, Reagan and H.W. Bush
administrations, according to Entous, the Israeli government
wanted assurances that their demands would continue to be
met. The foreign government could not count on continuity
because, according to Entous, “The documents had been sent
to the [National] archives,” necessitating new letters with
every incoming administration. The Israelis desired the
letters to ensure that U.S. laws and treaties that condition
aid to Israel would not be enforced, as discussed later.
This overriding Israeli objective, also discussed later, has
nothing whatsoever to do with U.S. national security. B. The information requested is
as specific as and matches information previously released
through official, documented disclosures.
The Nixon Presidential Library released volumes of
formerly classified information outlining the foreign
pressures and defeat of bona fide U.S. national security
interests that led the only president ever to resign from
office in humiliation, to foreshadow that disgrace by
acquiescing to Israel’s demands and succumbing to the policy
of “ambiguity.”
In 1969 the government of Israel, backed by its U.S. lobby
(which was ordered to register as a foreign agent by the
U.S. Department of Justice in 1962, but never complied)[2]
was demanding advanced Phantom F-4 fighter jets from the
United States. The U.S. was attempting to stop Israel’s
clandestine nuclear weapons program and compel Israel to
sign the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT). The U.S. was also reeling from the Israeli theft of a
stockpile of U.S. government owned highly enriched uranium
from the NUMEC facility in Apollo, PA sufficient to build a
dozen atomic bombs. NUMEC was a plant established and run by
Zionist Organization of America (ZOA) connected Israeli
smugglers and political operatives.
A NARA-declassified
July 19, 1969 memo to President Nixon by Henry Kissinger
titled “Israeli Nuclear Program” outlined the policy of
nuclear “ambiguity” ultimately adopted by Nixon under
intense Israeli pressure. See “Memorandum from Henry
Kissinger to President Nixon, 'Israeli Nuclear Program',”
July 19, 1969, Richard Nixon Presidential Library, National
Security Council Files, box 612, Israeli Nuclear Program
. (Exhibit A)
In the memo, Kissinger
outlines the views of a cross-agency study group
encompassing State, Defense and intelligence community
recommendations about the danger of the Israeli nuclear
weapons program and their overriding concerns about how it
would “not be in our interest” (Exhibit A, p 1) and “we do
not desire complicity in it.” (Exhibit A, p 2) In
particular, Kissinger correctly noted Israel’s possession of
nuclear weapons “would sharply reduce the chances for any
peace settlement in the near future.” (Exhibit A, p 10)
Kissinger thought that,
given Israel’s huge lobby in the U.S., the U.S. would not be
able to withhold nuclear-delivery capable Phantom F-4
fighter jets from Israel. “If we withhold the Phantoms and
they [the Israelis] make this fact public in the United
States, enormous political pressure will be mounted on us.”
(Exhibit A, p 10) This was based on the Nixon
administration’s knowledge of what happened when President
Lyndon Johnson attempted to condition weapons sales on
Israel signing the NPT. “President Johnson and Secretary
Rusk told Foreign Minister Eban we felt strongly about
Israel’s signature on the NPT and stated that political
discussions on this issue would precede negotiation. Later,
after strong pressure from the Israeli government and
approaches from American Jewish leaders, the President
instructed Secretary Clifford to sell the planes without
conditions.” (Exhibit A, p 8)
Outflanked by a foreign country and its U.S. lobby
determined to supplant American national interests with
those of Israel, the Nixon administration ultimately
acquiesced to Israel’s misleading interpretation of what
constituted the “introduction” of nuclear weapons in the
Middle East. In the Israeli formulation “introduction would
not occur until a weapon had been tested and its existence
had become publicly known.” (Exhibit A, p 15) The U.S.
interpretation, informed by the NPT, was that a state is a
nuclear weapons state if it possesses nuclear weapons.
Nevertheless, with its own tortured “introduction”
definition entered into the record, the Israeli government
reaffirmed in writing its commitment “not to be the first to
introduce nuclear weapons into the Mid-East.” (Exhibit A, p
15)
With those policy options at hand, Nixon met with
Israeli Prime Minister Golda Meir on September 26, 1969. The
president entered into “ambiguity” policy when he chose not
to withhold U.S. weapons sales from Israel or to publicly
pressure Israel to join the NPT or demand a halt to its
nuclear weapons program, outlined in the Kissinger policy
papers summarized from key agencies consulted to outline the
American interest. For its part, Israel maintained a policy
of never confirming or denying its nuclear weapons program.
Further evidence of the ongoing nature of
“ambiguity” policy is President Obama, against his better
judgement and upon acquiescing to Israel’s demands to sign
an “ambiguity” renewal letter, also publicly verified their
contents in a pointed public statement, “We discussed issues
that arose out of the nuclear-nonproliferation conference,”
Obama said, after meeting with Netanyahu on July 6, 2010.
“And I reiterated to the Prime Minister that there is no
change in U.S. policy when it comes to these issues.”
See Adam
Entous, “How Trump and Three Other US Presidents Protected
Israel’s Worst kept Secret: Its Nuclear Arsenal”
The New Yorker,
June 18, 2018.
A “plaintiff can overcome a Glomar response by showing that
the agency has already disclosed the fact of the existence
(or nonexistence) of responsive records” within the public
domain. ACLU v. CIA, 710 F.3d 422, 427 (D.C. Cir. 2013)
. If an
agency has “officially acknowledged the existence of the
record, the agency can no longer use a Glomar response.”
Moore v. CIA, 666
F.3d 1330, 1333
(D.C. Cir. 2011)
. This
Circuit has clarified that in the Glomar context, it is the
“existence vel non of any records responsive to a FOIA
request,” rather than the content of the records, that is
the focus of the inquiry. ACLU, 710 F.3d at 427.
In order to rebut a Glomar response, the requester must point
to an official prior disclosure that “establishes the
existence (or not) of records responsive to the FOIA
request.” Wolf,
473 F.3d at 379. The law concerning how to overcome an
agency Glomar response arose out of the “official
acknowledgment” exception to FOIA’s exemptions, which
required the requester to meet three stringent criteria: (1)
“the information requested must be as specific as the
information previously released,” (2) “the information
requested must match the information previously disclosed,”
and (3) “the information requested must already have been
made public through an official and documented disclosure.”
Id. at 378 (quoting
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)).
However, the inquiry for subsequent records need not be for
identical records. The Wolf court, which addressed the
official acknowledgment standard in the Glomar context for
the first time, explained that where the official
acknowledgment or prior disclosure demonstrates the
existence of the records the requester seeks, “the prior
disclosure necessarily matches both the information at
issue—the existence of records—and the specific request for
that information.” Id.
at 379. That is the case in here, buttressed by Obama’s
public restatement of agreement with maintaining “ambiguity”
policy after signing his letter. See Adam Entous, “How Trump
and Three Other US Presidents Protected Israel’s Worst kept
Secret: Its Nuclear Arsenal”
The New Yorker,
June 18, 2018.
Fitzgibbon’s matching and specificity criteria, then, are not
applicable in the Glomar context; in such cases, the court
must analyze only whether the prior disclosure acknowledges
the existence of the records sought. It is therefore
important to consider the broader context within which Nixon
administration’s lengthy, detailed records confirming the
consideration and final U.S. acquiescence to the Israel
lobby and its foreign principal’s demands about “ambiguity”
were made a half-century ago. Subsequent records are merely
the written continuations of that publicly-known—and
extremely harmful—acquiescence.
C. NSC Affidavit "National
Security Threat" assertions are made in bad faith
John P. Fitzpatrick, Senior Director of the Record Access and
Information Security Management Directorate at the National
Security Council, advances a number of misleading and
dubious assertions in support of dismissing this
public-accountability information release effort. Plaintiff
notes that until January 2016, Fitzpatrick was an employee
at the National Archives and Records Administration
Information Security Oversight Office. See Steven Aftergood,
“ISOO Director Fitzpatrick Moves to NSC”
Secrecy News, Federation of American Scientists, January 11, 2016
. ISOO is a component of the National Archives and Records
Administration.[3]
Plaintiff notes that NARA did not claim any consultation with
NSC was sought before issuing its Glomar response. Plaintiff
questions whether the assertions of a former NARA employee
more experienced in withholding information at NARA (four
years) than studying NSC policy (three years) is really any
sort of credible arms-length “independent” executive branch
source that should be allowed to file an affidavit.
Fitzgerald’s statements suggest he is not. Neither
Fitzpatrick nor NARA properly disclosed that Fitzpatrick is
a former NARA employee. This suggests that NARA is
attempting to engage in sophisticated sock puppetry by
calling in favors to former employees to provide a rubber
stamp to its predetermined course of action in asserting
Glomar. It also appears that Fitzgerald is engaged in
omitting material biographic facts from his own sworn
affidavit. This court should take this to be an indication
of bad faith, but unfortunately it is far from the only one.
Fitzpatrick dubiously asserts that “The existence or
nonexistence of Presidential letters is information owned by
and under the control of the United States Government.” (ECF
10-3, p 3). That is doubtful. Like the original concept of
“ambiguity” presented to the Nixon administration in 1969,
the content of the letters was proposed and drafted by the
government of Israel. The government of Israel furthermore
retains copies of the letters in order to continue making
demands on incoming administrations—because NARA takes
possession of such records at the end of each
administration. Since the purpose of the letters is to
ensure continuity of policy, their existence is continually
presented to subsequent administrations by Israel, according
to The New Yorker.
See Adam Entous, “How Trump and Three Other US Presidents
Protected Israel’s Worst kept Secret: Its Nuclear Arsenal”
The New Yorker,
June 18, 2018.
If the
existence or non-existence was “information owned by and
under control of the United States,” it would surely defeat
their main purpose. This court should therefore presume the
obvious, that “The existence or nonexistence of Presidential
letters is information neither drafted by, owned by, under
the control of, or to the benefit of the United States
Government.”
Fitzgerald incorrectly asserts that “Responding
substantively to Plaintiffs requests would require the NSC
to reveal a classified fact-i.e., whether the U.S.
Government is or is not engaged in particular foreign
relations or foreign activities.” This is incorrect.
National Security Advisor Henry Kissinger (January 20,
1969-November 3, 1975) revealed the precise parameters of
engagement on ambiguity in a series of NSC studies and memos
drawn from cross-agency input and Israeli demands. The facts
surrounding the foreign relations and activities in
question, “ambiguity” towards Israel’s nuclear weapons
program and arsenal, have already been officially released.
(See Exhibit A)
The letters
may or may not be originally classified as “secret,” this
fact has not yet been settled, through either a NARA review,
in camera review
or release. Plaintiff believes, since they are essentially
Israeli bargaining leverage, they are probably not
classified since that would undermine their utility as
discussed later.
Fitzgerald looks to
the New Yorker,
which is not a classification authority, for substantiation.
“This conclusion is underscored by
Plaintiffs reference in his requests to a June 18, 2018
article in the New
Yorker, which portrays certain information as a
government secret and refers to purported letters from
several U.S. Presidents regarding such secrets to a foreign
head state.” Plaintiff suggests the obvious: the
New Yorker is not
a classification authority, original or derivative.
Therefore the National Security Council should not defer to
the New Yorker for authorities or expertise in that domain.
Fitzgerald continues,
“Given the contents of that article, responding
affirmatively could confirm or refute the substance of
information exchanged between the United States and one or
more foreign governments.” Plaintiff insists that the
letters are probably not actually secret. If disclosed, they
would merely reveal the continuance of exchanges under a
well-known, fifty-year old policy of subordination of U.S.
national interests. Also, as discussed later, other foreign
governments have long been aware of U.S. adoption of
“ambiguity.”
Fitzgerald advances, via the preamble “The specific
nature of the harm to national security that is reasonably
likely to occur if the existence or nonexistence of the
letters is confirmed could include:” a string of misleading
statements revealing either bad faith or extreme ignorance.
[ECF 10-3, p 4]
“…sowing doubt about the U.S. commitment to the
[Nuclear] Non-Proliferation Treaty.” On the issue at hand,
doubts about the U.S. commitment to the NPT could simply not
go any lower than they are currently. Because of the
longstanding, known policy of U.S. acquiesce to
non-signatory Israel having a nuclear weapons program, the
U.S. has already lost its credibility in the realm of the
NPT in the Middle East, and elsewhere.
A 2011 public opinion survey of 16,000 residents of
12 Arab countries in the Middle East with a margin of error
of 3.5 percent is unambiguous. Between 50 percent and 68
percent of respondents in 10 out of the 12 surveyed
countries supported the idea of a Middle East free of
nuclear weapons. More than half of all respondents (55
percent) believe that Israel’s possession of nuclear weapons
justifies other states in the region seeking to acquire such
weapons. Approximately 70 percent of those who support a
nuclear-free Middle East claim it is the right of other
states in the region to pursue nuclear weapons in light of
Israel’s possession of them. See the Arab Center For
Research And Policy Studies. (2012). Measurement of Arab
Public, Opinion Project. Arab Opinion Index 2011.
These opinion holders
are skeptical of vaunted claims of U.S. commitment to the
NPT because nearly every time Arab member states seek to
implement a nuclear free zone in the Middle East, under NPT
review conferences, the U.S. blocks it at Israel’s behest.
See “Netanyahu thanks US for blocking push for Middle East
nuclear arms ban” The
Guardian, May 23, 2016
The U.S. has violated the NPT by providing nuclear
materials to Israel despite knowing of its nuclear weapons
program since at least 1974. Article 3, Section 2 of the NPT
requires safeguarding materials against weapons-related use
by non-nuclear or non-signatory states. Nevertheless, Israel
has used a U.S. supplied nuclear reactor at Soreq and other
materials provided for humanitarian purposes by the U.S.
under “Atoms for Peace” to build nuclear weapons production
facilities that mirror American national laboratories.
According to an unclassified 1987 report produced for the
U.S. Department of Defense, “The
SOREQ and the Dimona/Beer Shiva facilities are the
equivalent of our Los Alamos, Lawrence Livermore and Oak
Ridge National Laboratories. The SOREQ center runs the full
nuclear gamut of activities from engineering, administration
and non-destructive testing to electro-optics, pulsed power,
process engineering and chemistry and nuclear research and
safety. This is the technology base required for nuclear
weapons design and fabrication…. The capability of SOREQ to
support SDIO and nuclear technologies is almost an exact
parallel of the capability currently existing at our
National Laboratories…" The Pentagon report asserted
that the Israelis were “developing
the kind of codes which will enable them to make hydrogen
bombs. That is, codes which detail fission and fusion
processes on a microscopic and macroscopic level." Despite
this misuse of U.S. aid, no NPT compliance actions were ever
taken. See Edwin S. Townsley and Clarence A. Robinson
Critical Technology
Assessment in Israel and NATO Nations April, 1987,
Office of the Under Secretary of Defense
The very first U.S. official government confirmation
that Israel has a nuclear weapons program, highlights in its
report title that Israel represents the
commencement of
nuclear proliferation in the Middle East. See U.S. Central
Intelligence Agency 1974
Special National
Intelligence Estimate, Prospects for Further Proliferation
of Nuclear Weapons.
For this and many other known U.S. actions, no foreign
state or serious observer believes the U.S. is a champion of
upholding the NPT with regards to Israel or the Middle East.
Fitzgerald continues, “Undermining the foreign policy
objectives of the United States by eliminating strategic
ambiguity.” The foreign policy objectives of the United
States in 1969 at the launch of “ambiguity” were keeping
Israel from going nuclear, making Israel sign the NPT and
using U.S. conventional weapons deliveries to ensure Israeli
compliance. These U.S. foreign policy objectives were
thwarted by the replacement of U.S. policy objectives with
the Israeli policy objective of “ambiguity.” It is therefore
misleading to assert that eliminating “strategic ambiguity”
would subvert U.S. foreign policy objectives. Strategic
ambiguity in 1969 and its continuance today
is the subversion
of U.S. foreign policy objectives.
Fitzgerald: “Undermining relations with an important
ally by revealing information shared with an expectation of
confidentiality.” Once again, the core nature of the letters
is misrepresented. The overriding purpose of the letters, an
extension of “ambiguity,” is for Israel to continually
remind U.S. presidents in succeeding administrations that
they must comply with the Israeli policy of ambiguity by
promising to violate the NPT and the AECA.
Fitzgerald: “Undermining U.S. government policy
limiting the potential to an arms race in a particular
region.” Acquiescing to “ambiguity” (again, fundamentally an
Israeli, rather than U.S. policy) touched off an arms race
in the Middle East. There is no government in the region
that believes Israel does not possess nuclear weapons. By
failing to uphold its treaty obligations under the NPT, the
U.S. has forced neighboring countries to try to develop
their own deterrents at various times. These proliferation
attempts have included Iran (until 2003), Libya (until
2003), Iraq (until 1991) and Syria (until 2007). Arguably,
if the U.S. had achieved its true policy preferences, none
of these countries would have sought their own deterrent
capabilities. It is more accurate to say that “ambiguity”
undermined limiting the potential for an arms race far more
than revealing the latest developments in the “ambiguity”
arena would.
Fitzgerald: “Serving as confirmation to our adversaries
that there is no such information.” Again, the region
assumes the U.S. is abiding, if not actively supporting,
Israeli nuclear proliferation through ambiguity. A handful
of confirmation letters is unlikely to have any major impact
on a policy visibly in effect since 1969.
“Undermining relations with other nations by suggesting
differential treatment.” Other nations can readily observe
that the U.S. has used its UN veto on Israel’s behalf more
than for any other reason. (43 times in one estimation) See
“The 43 times US has used veto power against UN resolutions
on Israel” Middle East Eye, December 18, 2017
. They can
also observe that the U.S. has delivered over $250 billion
in publicly known foreign aid to Israel, more than any
nation or to rebuild post-war Europe under the Marshall
Plan. Any affirmation that the U.S., again at the insistence
of Israel and its U.S. lobby, engages in favoritism would be
so incremental as to offer no meaningful addition to the
popular worldwide perception of monumental bias the U.S. has
long exhibited.
Fitzgerald: “Revealing the relationship (or absence of such
a relationship) with foreign intelligence agencies.” This
statement must surely be left over NSC (or NARA) boilerplate
from another FOIA request involving the 16-member
intelligence community. In reality, the main body of
Israel’s nuclear weapons program, though clandestinely
assisted by Israeli intelligence units such as Lakam, which
stole the weapons-grade uranium from the United States to
build Israel’s first bombs by 1967, is not actually run by
Israeli intelligence agencies. Rather, tax-exempt
fundraising in the United States is performed by the
Weizmann Institute for Science and Technology and then is
diverted to fund Israel’s nuclear weapons and missile
development (which does not meet IRS social welfare
parameters governing the use of such donations). Policy,
production and delivery is spread across Ministry of Defense
and other non-intelligence agencies.
Fitzgerald: “Further, confirming the existence of the
subject letters, if they exist, could reveal the United
States' regional interests, and relationships.” Again, based
on an understanding of how “ambiguity” replaced declared,
multi-agency expressions of U.S. national interests, it is
inaccurate to speculate the letters would reveal the absence
or existence of relationships. The letters would merely
incrementally add to the understanding of the subversion of
bona fide U.S. interests. To the contrary, exposing the
corruption that is called “ambiguity” by releasing the
letters could go a long way toward repairing, as opposed to
impairing, the President’s foreign policy by returning
policy back into the service of U.S. rather than Israeli,
national interests.
Fitzgerald concludes by declaring “The determination to
classify the information described above was made to protect
the national security of the United States. The information
was not classified to conceal violations of law,
inefficiency, or administrative error, to prevent
embarrassment to a person, organization, or agency; to
restrain competition; or to prevent or delay the release of
information that does not require protection in the
interests of national security.” However, this
self-certification requires either ignorance or fundamental
misrepresentation of the deliberations that finally led to
“ambiguity” policy in 1969, and which have afflicted America
ever since. Fortunately, it is for the judiciary branch to
determine whether this NSC statement—against the available
body of facts—is compelling. D. FOIA exemptions do not
provide blanket cover for “breaking the law”
Having disposed of the NSC
“affidavit” we turn to the inadmissibility of the use of
FOIA exemptions and the existing classification authority to
conceal lawbreaking.
Defendants initially
cherry-pick Executive Order 13526 by claiming there are only
four conditions for proper classification.
“That
order sets forth four conditions for proper classification:
First, the information must be classified by an ‘original
classification authority.’ Second, the classified
information must be ‘owned by, produced by or for, or [be]
under the control of the United States Government.’ Third,
the information must pertain to one or more of eight
enumerated categories. Fourth and finally, the original
classification authority must ‘determine that the
unauthorized disclosure of the information reasonably could
be expected to result in damage to national security” and be
able to “identify or describe the damage.’” (ECF 10-1, p 4)
Again, whether the letters have any original classification
markings is undetermined, as well as the exclusivity of U.S.
ownership, production and control by the U.S. government.
Its pertinence to any enumerated category has not been
established, and as discussed, whether the disclosure of the
letters could harm U.S. national security in the face of a
mountain of officially released “ambiguity” records and
official statements is extremely doubtful.
What is not
doubtful is that executive order 13526 expressly forbids
classifying information in order to “conceal violations of
law, inefficiency, administrative
error or to prevent embarrassment.” NARA may not conceal the
requested letters because their primary purpose is to compel
the U.S. to violate the NPT and AECA. Worse, this taxpayer
fraud is ongoing and there is no sign of relief on the
horizon, absent building a public record about what is
happening by blowing away the noxious cloud of government
secrecy.
As NSC Chief Henry Kissinger documented in the deliberations before the
U.S. entered into “ambiguity,” not only had Israel gone
nuclear in the mid-1960’s, but it had probably stolen highly
enriched uranium from the U.S. to accomplish that breakout.
“There is circumstantial
evidence that some fissionable material available for
Israel’s weapons development was illegally obtained from the
United States about 1965,” Mr. Kissinger noted in his long
declassified memorandum. [Exhibit A, page 7]
“This is one program on
which the Israelis have persistently deceived us,” Mr.
Kissinger said, “and may even have stolen from us.”
[Exhibit A, page 13] See
also the following article for a summary of key points from
the declassified Nixon administration “ambiguity”
files.
David Stout “Israel’s Nuclear Arsenal Vexed Nixon.”
New York Times, November 29, 2007.
Kissinger’s oblique references were
to the diversion of weapons grade uranium from the
Pennsylvania-based Nuclear Materials and Equipment
Corporation. NUMEC was launched
and managed by Zalman Shapiro, a nuclear chemist credited
with solving engineering issues for naval nuclear propulsion
in the 1950s. His partner, David Luzer Lowenthal was an
international smuggler with murky ties to Israeli
intelligence and industrialist. Lowenthal organized the
emergence of NUMEC from a complicated merger and acquired
facilities for NUMEC in a defunct steel mill in the middle
of Apollo, Pennsylvania. The Zionist Organization of
America, originally chartered to "do any and all things that
may be necessary" to support Israel, supplied three of
NUMEC’s executives. Zalman Shapiro, Pittsburgh region
president of ZOA, Morton Chatkin and Ivan J. Novick who
became ZOA’s national president.
Officially NUMEC was
a startup supplier of highly-enriched fuel for the US Navy.
But two Central Intelligence Agency officials verified
Kissinger’s fears were true when they officially stated
NUMEC’s true purpose was to amass and divert US
government-owned highly enriched uranium into Israel’s
nuclear weapons program. 300 kilograms of highly enriched
uranium disappeared from NUMEC between 1957-1978, with most
of it gone by 1966. Material stolen from NUMEC would have
been the most likely source for Israel’s ability to ready
nuclear weapons for use during the 1967 Six-Day War.
CIA Tel Aviv Station
Chief John Hadden, who performed field operations to sample
the environment around Dimona for highly enriched uranium –
material Israel was incapable of producing on its own –
publicly stated that NUMEC was "an Israeli operation from
the beginning." CIA Directorate of Science and Technology
Deputy Director Carl Duckett testified that "NUMEC material
had been diverted by the Israelis and used in fabricating
weapons." There were telltale signs.
Inside NUMEC’s
underfunded, ramshackle facilities an Israeli scientist,
Baruch Cinai, learned to handle samples of plutonium, a
skill subsequently useful to plutonium production at
Israel’s Dimona facility. Israeli covert operatives Raphael
Eitan, Avraham Bendor and Ephraim Beigun all visited the
NUMEC facility at Shapiro’s invitation in 1968 undercover as
various Israeli energy specialists, in the company of
Avraham Hermoni, chief of Israel’s nuclear weapons
development program. The FBI’s investigation of
NUMEC-related activities ultimately shook loose eyewitness
testimony that Shapiro was collaborating in the illicit
diversion of highly enriched uranium from NUMEC’s
U.S.-government owned stockpile to Israel. Under increasing
pressure, NUMEC’s regulator, the Atomic Energy Commission,
subsequently engineered NUMEC’s corporate buyout and the
exit of its management team to save face, after many years
of denial and providing easily refuted excuses for NUMECs
extreme and inexplicable material "losses."
That NUMEC was a front operation, following in the footsteps of Israel’s
1940s-era conventional weapons smuggling operations from the
US such as Martech, Service Airways, and the Sonneborn
Institute, is well-known by the FBI and CIA. Both have
released extensive archives of intelligence reports and
surveillance photographs of Israeli conventional weapons
smuggling from the United States through overseas networks.
See the document archive The
Nuclear Materials and Equipment Corporation (NUMEC) and the diversion of
US government weapons-grade uranium to Israel, Institute for
Research: Middle Eastern Policy, Inc.
The Arms Export Control
Act restricts and conditions U.S. foreign aid to countries
that have not signed the Nuclear Non-Proliferation Treaty,
yet—like Israel—are known to have nuclear weapons programs
under 22 USC §2799aa-1
: Nuclear reprocessing transfers, illegal exports for
nuclear explosive devices, transfers of nuclear explosive
devices, and nuclear detonations.
The amendments were
authored by Senator Stuart Symington, a close confidant of
NPT champion President John F. Kennedy, and Senator John
Glenn, who was extremely concerned about the lack of due
process and criminal prosecutions over the illegal NUMEC
diversion detected by the CIA and FBI. Glenn visited the CIA
and the National Security Council seeking accountability
over the incident.
NUMEC Material Unaccounted For, National Security
Council, November 27, 1979.[4] However, the CIA never
provided clandestine overseas evidence to the FBI sufficient
to prosecute the U.S. and Israeli operatives involved in the
diversion.
In the present day, U.S.
Army Corps of Engineers estimate of the cleanup costs of the
sites of the smuggling front in Pennsylvania reach half a
billion. See Grant Smith, “CIA Cover-Up Thwarted FBI’s
Nuclear Diversion Investigations, Evidence that missing
uranium went to Israel withheld since 1968,”
Antiwar.com, September 7, 2015
Israel’s nuclear weapons program is undeniable and
unambiguous. However mandatory waiver conditions under the
AECA have never been met. Therefor all “assistance” to
Israel is unlawful under the AECA. The waiver provision is
presidential notification of Congress. Congresswoman Eleanor
Holmes Norton confirms no presidential Arms Export Control
Act waiver has ever been filed with Congress, “No president
has exercised his authority to waive the nuclear enrichment
transfer prohibition for Israel.” Congresswoman Eleanor
Holmes Norton letter, March 30, 2018
[Exhibit B] Because
all forms of aid to Israel are in violation of the Arms
Export Control Act, invoking 13526 through FOIA exemptions
to conceal additional aspects of “ambiguity” in order to
continue shipping tax dollars to Israel clearly “conceals
violations of the law.”
The letters represent Israel’s realization that U.S.
presidents—no matter how beholden to Israel lobby campaign
contributions—could someday begin to comply with the NPT and
AECA. Political parties might also begin to take constituent
demands into consideration, over the demands of Israel and
its lobby. When asked in an August 2018 poll, “Arms Export
Control Act law limits foreign aid to countries with nuclear
weapons that haven’t signed the NPT. CIA says Israel has
nuclear weapons.” 54.8% of Americans said, “Aid to Israel
should be limited by law.” See poll, “Americans would limit
aid to nuclear Israel.” IRmep, 8/14/2018. Conducted through
Google Consumer Surveys. Sample size 1,005. RMSE score 5.0%.
To preempt that kind of governance and democratic process,
presidents are pressured by Israel to sign letters so that
Israel continues to receive the lion’s share of U.S. foreign
aid. This acquiescence is an extension of Nixon era
“ambiguity,” the original core purpose of which was to
coerce the U.S. to violate the NPT in Israel’s favor to the
detriment of American national security.
Since the Symington and Glenn Amendments became law in 1976,
the U.S. has unlawfully delivered an inflation-adjusted
publicly known sum of $222.8 billion to Israel. Since Bill
Clinton signed the first “ambiguity” extension letter,
inflation adjusted unlawful aid to Israel has been $99.9
billion.
In short, the letters have nothing to do with U.S. national
security, but rather the ongoing maintenance of a fraud that
dwarfs Teapot Dome and all previously uncovered corruption
scandals. See Grant F. Smith, “Four Presidents Conspired To
Give $100 Billion to Israel: Secret White House Letters
Buttress Ongoing US Arms Export Control Act Violations,”
Antiwar.com, June 25, 2018
Defendants blithely assert it is perfectly acceptable to use
secrecy to cover up wrongdoing. (ECF 10-1, p. 13-14 “That is
because, as the D.C. Circuit has explained, ‘there is no
legal support for the conclusion that illegal activities
cannot produce classified
documents,’ and
“history teaches the opposite.”
ACLU vs
Department of Defense, 628 F.3d at 622
. To evaluate this
extraordinary claim, we must carefully examine the
precedent.”
The cited precedent was not ACLU but rather the withholding
of illegal FBI surveillance tapes of Dr. Martin Luther King
from assassination researchers in 1980. In that case the DOJ
managed to win a court order sealing the records for an
additional fifty years since they might "compromise
legitimate secrecy needs." See
Lesar v. Dep't of
Justice,
636
F.2d
472, 483
(D.C.Cir.1980)
The judge held that
the precedent was applicable to ACLU because, “We conclude
that the President's prohibition of the future use of
certain interrogation techniques and conditions of
confinement does not diminish the government's otherwise
valid authority to classify information about those
techniques and conditions and to withhold it from disclosure
under exemptions 1 and 3.”
It might be argued that withholding “no-warrant” FBI
surveillance has ended and that sealing the MLK records had
more to do with protecting his privacy. It might be argued
that that CIA torture is now clearly known to have occurred
and that it has been outlawed may mitigate not releasing
tapes of such torture (which the CIA burned even after a
court ordered their release, with no consequences.)
However, this case is different. Flouting the NPT and AECA is
an ongoing abuse with no mitigation or reform on the
horizon. Ambiguity and secret legislative rules and letters
have been the instruments of massive a fraud against U.S.
taxpayers for decades amounting to billions of dollars. It
is precisely this category of endemic ongoing abuse that led
to the E.O. 13526 ban on using secrecy to cover up
wrongdoing. D. George W. Bush presidential
records are releasable
Defendants claim President Bush’s records still reside within
a 12-year restricted access period. In an affidavit, B. John
Laster, Director of the Presidential Materials Division
speculates—without providing any evidence—the Bush letter
may reside within one of six categories which may be held up
to 12 years, even if the record is the subject of a FOIA
request. The PRA provides that the Archivist’s decision to
withhold a record within the 12-year period under one of the
six enumerated restrictions of the PRA ‘shall not be subject
to judicial review.’” (ECF 10-2, pp 3-4)
Plaintiff contacted B. John Laster—as advised by NARA—during
the FOIA administrative phase, questioning the applicability
of such restrictions. Though given a week to respond, Laster
never replied.
Plaintiff still challenges the assertion that the Bush
presidential letter lies within any of the six enumerated
PRA categories. Highly sensitive U.S. government owned
information about Israel’s nuclear weapons program is not
always classified. For example, Edwin S. Townsley and
Clarence A. Robinson
Critical Technology Assessment in Israel and NATO Nations
April, 1987, Office of the Under Secretary of Defense
reveals highly
sensitive information about Israel’s nuclear program,
including hydrogen bomb development. One reason it was never
classified is that it represented an Israeli bid for
contracts under the Reagan administration’s “Star Wars” or
Strategic Missile Defense initiative. The Israelis wanted
their advanced technical capabilities to be circulated to
the right parties, and secrecy classification would have
thwarted bids for SDI contracts.
Similarly, the letters drafted and demanded by the Israelis
from four U.S. presidents are designed to be held by the
Israelis and circulated for coercion purposes. This function
is not amenable to national security classification, since,
if American members of the Israel lobby, unregistered agents
such as AIPAC, were caught using the letters on Capitol Hill
in efforts to coerce sitting U.S. members of Congress to
increase U.S. aid to Israel, the AIPAC lobbyists could be
charged with espionage for holding sensitive classified
documents. This is not a purely hypothetical example.
AIPAC was investigated for espionage in 1976 over its
possession of classified Hawk missile data it was using in
congress to thwart a U.S. sale to Jordan[5],
possession of a classified 300-plus page International Trade
Organization document of classified U.S. industry
information in AIPAC and the Israeli Ministry of Economics
bid to pass America’s worst performing bilateral trade deal,[6] and in
2005 over AIPAC’s attempting to use classified NDI provided
by convicted spy for Israel Col. Lawrence Franklin to
precipitate U.S. military attacks on Iran.[7] History
suggests, given Israel’s intended use of the presidential
letters, that they would not be classified so that Israel’s
U.S. lobbyists and Israeli officials could handle them
freely, without fear of additional 1917 Espionage Act
indictments. (Two
AIPAC officials were indicted for espionage in 2005, and
their accomplice was convicted).
Original classification and NOFORN stamps would complicate
their use by Israeli officials as well, and endanger their
transport of such documents through the United States where
they are used to coerce concessions with incoming
presidential administrations, and likely many other parties.
Plaintiff asserts that since the Glomar response is
impermissible, given official acknowledgement of
“ambiguity,” only an examination for the presence of
original classification markings on the letters and their
actual contents could satisfactorily determine into which—if
any—of the six enumerated PRA categories the letters may
fall.
Plaintiff also notes that while, upon proper processing an
Archivist may decide to withhold a record within the 12-year
period under one of the six enumerated restrictions, so far
that has not been done for lack of any FOIA administrative
process. Plaintiff calls the court’s attention to the fact
that the only NARA official that can make such a
determination is Archivist David Ferriero—who has not filed
any affidavits in this case.
Lest this court conclude that no George W. Bush records have
been released by NARA, Plaintiff calls the court’s attention
to John Laster’s release of 1,127 assets in whole and 632
assets in part from George W. Bush presidential records on
August 31, 2018, pertaining to Judge Brett Kavanaugh.
[Exhibit C.] In
that request,
NARA actually performed a bona fide, somewhat timely,
responsive record search to examine whether 12,773 assets
from the Bush presidential records fell into any of the six
PRA Presidential restrictive categories and any applicable
FOIA exemptions. Plaintiff asserts that his request for
presidential nuclear letters should receive the same due
diligence as the Kavanaugh materials. [Exhibit C, p
1] III. Defendant’s motion for
summary judgement should be denied.
Defendants have not
met their burden of proving they have complied with their
obligations under FOIA.
The FOIA requires that “each agency, upon
any request for records which (I) reasonably describes such
records and (ii) is made in accordance with published rules
. . .shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A). Rather, Defendants have
sought the implementation of a judicial construct—Glomar—to
preempt a bona fide records search and FOIA release.
A district court
reviewing a motion for summary judgment in a FOIA case
“conducts a de novo review of the record, and the responding
federal agency bears the burden of proving that it has
complied with its obligations under the FOIA.”
Neuman v. United
States, 70 F. Supp. 3d 416, 421 (D.D.C. 2014)
;
CREW, 746 F.3d at
1088; see also 5 U.S.C. § 552(a)(4)(B). NARA has not yet
even attempted to meet its burden. A. NARA has yet to conduct a
search for responsive records
The
mandate of NARA is to “make such records available to the
public as rapidly and completely as possible consistent with
the provisions of [the PRA].” Id.; see generally
Am. Historical Ass’n
v. NARA, 516 F. Supp. 2d 90, 93-95 (D.D.C. 2007)
. NARA does so by
processing FOIA requests and must properly apply and justify
any withholdings under FOIA exemptions. “To meet its FOIA
obligations, an agency must show that it ‘conducted a search
reasonably calculated to uncover all relevant documents.’”
Freedom Watch, Inc. v. NSA,
49 F. Supp. 3d 1, 5 (D.D.C. 2014)
aff’d and
remanded, 783 F.3d 1340 (D.C. Cir. 2015)
An agency may
only withhold information if it fits within nine narrowly
construed exemptions.
See
5 U.S.C. § 552(b). But the FOIA 5 U.S.C. § 552(a) also
requires that the agency release any “reasonably segregable
portion” of the records requested.
Id.
The agency in a FOIA case bears the burden of establishing
that at least one exemption applies for each record
withheld. See
Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973)
. The agency
also bears the burden of proving that it has complied with
the segregability requirement.
Johnson,
310 F.3d at 776.
An agency
seeking to justify its withholding of responsive records
under the FOIA 5 U.S.C. § 552(a) must satisfy five
overarching requirements in addition to the particular
standards of each FOIA 5 U.S.C. § 552(a) exemption claimed.
The government must “(1) [I]dentify the document, by type
and location in the body of documents requested; (2) note
that [a particular exemption] is claimed; (3) describe the
document withheld or any redacted portion thereof,
disclosing as much information as possible without thwarting
the exemption’s purpose; (4) explain how this material falls
within one or more of the categories . . .; and [if the
exemption requires a showing of harm] (5) explain how
disclosure of the material in question would cause the
requisite degree of harm.”
Am. Immigration Council v. DHS, 950 F. Supp. 2d 221, 235 (D.D.C.
2013)
. In order to be
granted summary judgment, the agency must establish that it
has satisfied all of the statutory requirements of the FOIA.
Harrison v. Fed. Bureau of Prisons, 681 F. Supp. 2d 76, 85 (D.D.C.
2010).
In this case, NARA has failed to search for
any responsive
records in whole or part. Plaintiff challenges NARA’s
Glomar invocation
and affidavit for the reasons described above as utterly
failing to justify its refusal to even search for responsive
records.
NARA may not properly invoke Glomar when the fact of the
existence of records has been officially acknowledged. Nor
may NARA withhold records under FOIA Exemptions or
authorities such as E.O. 13526 when overarching reason
behind withholding the records is to violate the law. B. NARA has not released
responsive documents it possesses
NARA has not yet processed under FOIA which have been
officially acknowledged—U.S. acquiescence to the Israeli
policy of ambiguity in the interest of violating the NPT and
flow of foreign aid that became unlawful under the Symington
and Glenn Amendments in 1976.
More than
fifty years have passed since a U.S. president first
acquiesced to “ambiguity.” A decade has passed since the
formerly secret Nixon administration policy options leading
to ambiguity were declassified and released. Half a year has
elapsed since NARA received Plaintiff’s narrow FOIA request,
for additional “ambiguity” policy documents. NARA is
improperly withholding the material requested by the
Plaintiff—under unlawful pretenses to assert Glomar to delay
and increase the cost of this public accountability effort. C. Supplemental U.S. State
Department input would not meaningfully contribute to this
proceeding.
Defendant suggests,
“Should the
Court determine that it must assess the scope of the Arms
Export Control Act or the United States’ treaty obligations
and whether the alleged letter amounts to a violation of
those obligations, the Defendant respectfully requests the
opportunity to submit supplemental briefing on that point,
after consultation with other agencies, including the
Department of State.” (ECF 10-1, p 13 footnote)
This would not be a useful exercise. In furtherance
of adhering to the Israeli policy of “ambiguity” in 2012 the
Obama administration Department of Energy, under Department
of State classification guidelines, passed a legislative
rule in the form of a classification guideline. This
guideline bans the release of information held by the U.S.
government about Israel’s nuclear weapons program or
authoritative official comments about Israel’s nuclear
weapons. During the course of litigation to publicly release
the secret legislative rule, the U.S. Department of State
has provided no meaningful comments on the self-classifying
WNP-136 and has actively sought to extricate itself from the
litigation in order to avoid providing any. See
Smith v United States
of America, case 18-00777, District Court of the
District of Columbia. Since it is unable to mount any
defense of questions about U.S. ambiguity with regards to
WPN-136. FOIA inquiries about why the State Department is
harboring through the extension of Green Cards Israeli
nuclear weapons component traffickers identified by DHS and
the FBI as unlawfully smuggling nuclear triggers from the
U.S., State would likely decline to mount a defense in this
instance. D. In camera review would
meaningfully contribute to this proceeding.
The court should exercise its discretion to review the
presidential letters
in camera. See
Mobley v. CIA, 806 F.3d 568, 588 (D.C. Cir. 2015)
(“At its discretion,
a district court ‘may examine the contents of . . . agency
records in camera[.]’”) (quoting 5 U.S.C. § 552(a)(4)(B));
see also Am. Civil Liberties Union v. U.S. Dep’t of Defense,
628 F.3d 612, 626 (D.C. Cir. 2011)
The NARA advancement of Glomar coupled with false and
misleading statements in the NSC affidavit firmly establish
bad faith on the part of the government. The proper use of
the Glomar and the classification of executive agency
information related to this topic depends on three binary
questions. The first is whether Israel has a nuclear weapons
program. The answer to that question is “yes.” The second
question is whether the U.S. is adhering to the NPT and
AECA. The answer to that question is “no”. The third binary
question is whether the U.S. is using secrecy and false
assertions of national security to violate the law and cover
up wrongdoing. The answer is “yes.” Such bad faith
demands in camera
review. Am. Civil
Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612,
626 (D.C. Cir. 2011)
(“This court reviews
a district court’s decision whether to conduct in camera
review of FOIA documents for abuse of discretion.”).
In camera
review would be their first and only
de novo review
outside the domain of NARA’s clutches, and begin the fulfill
FOIA’s mandate of outside, independent judicial review. CONCLUSION
For the foregoing reasons,
the Court should deny Defendant request for summary
judgement and order NARA to process the FOIA. Plaintiff
encourages this court to examine the presidential letters
held by NARA in camera
for the presence of original classification markings and to
make an independent review of the applicability of claimed
Glomar, FOIA and PRA exemptions.
[1]
https://www.justice.gov/archive/oip/courtdecisions/glomar.html
[2]
See “DOJ orders AZC to Register as a Foreign Agent”
https://israellobby.org/azcdoj/
[3]
https://www.archives.gov/isoo
[5]
http://www.israellobby.org/amitay/default.asp
[6]
http://www.israellobby.org/economy/default.asp
[7]
http://www.israellobby.org/espionage/default.asp
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