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25 December 1997
Source: William H. Payne
See related documents: http://jya.com/whpfiles.htm
[November 28, 1997]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
William H. Payne )
Arthur R. Morales )
)
Plaintiffs, )
)
v ) CIV NO 97 0266
) SC/DJS
)
Lieutenant General Kenneth A. Minihan, USAF )
Director, National Security Agency )
National Security Agency )
)
Defendant )
PLAINTIFFS' ANSWER TO DEFENDANT'S CROSS-CLAIM REPLY TO PLAINTIFFS'
RESPONSE TO DEFENDANT'S MOTION FOR PARTIAL DISMISSAL AND MOTION FOR
SUMMARY JUDGMENT
1 COMES NOW plaintiffs Payne [Payne] and Morales [Morales]
[Plaintiffs], pro se litigants to exercise their rights
guaranteed under the Local Civil Rules to respond to
DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S
MOTION FOR PARTIAL DISMISSAL AND MOTION FOR SUMMARY
JUDGMENT [REPLY] filed 97 NOV 14 by assistant US attorney
Jan Mitchell.
2 Local Civil Rule 7.6 Timing of and Restrictions on
Responses and Replies, (b) Surreply states
The filing of a surreply requires leave of the Court.
But this filing is NOT A SURREPLY.
Rule 7 of the Federal Rules for Civil Procedure states
(a) Pleadings. There shall be a complaint and an
answer; a reply to a counterclaim denominated as such;
an answer to a cross-claim, if the answer contains
a cross-claim; a third-party complaint, if a person who
was not an original party is summoned under the provision
of Rule 14; and a third-party answer, if a third-party
complaint is served. No other pleading shall be allowed,
except that the court may order a reply to an answer or a
third party answer.
Mitchell makes a claim in her REPLY.
Mitchell writes,
It continues to be Defendant's position that Plaintiffs'
Complaint for Injunctive Relief ("Complaint") filed February
28, 1997 must be dismissed.
This ANSWER contains a cross-claim answer.
Namely, give the public the documents legally requested under
the FOIA.
3 Mitchell writes,
Plaintiffs make the sweeping assertion that the "29 cases
in Mitchell's MEMORANDUM ... do NOT APPLY to the facts in this
case. However, they cite to absolutely no case law to support
their position.
No citations to case law are required for the reason that
Plaintiffs EXHAUSTED THEIR ADMINISTRATIVE REMEDIES, as stated
by NSA deputy director William P. Crowell.
Plaintiffs support their position by FACTS in this matter.
Mitchell attempts to force Plaintiffs to support the FACTS in
this lawsuit with case law.
Mitchell cited case law that applies ONLY when those seeking
documents under the FOIA did NOT exhaust administrative
remedies.
Mitchell's case law DOES NOT APPLY to this lawsuit for the
reason that Plaintiffs DID EXHAUST ADMINISTRATIVE REMEDIES.
Lawyer Mitchell appears to attempt to apply the Nazi strategy
If you tell a big enough lie often enough, people
will begin to believe it.
The lie Mitchell is attempting to convince readers of these
documents of is that Plaintiffs DID NOT exhaust administrative
remedies.
Plaintiffs DID EXHAUST ADMINISTRATIVE REMEDIES. NSA deputy
director and NSA FOIA/PA Appeals Authority William P. Crowell
writes 31 December 1996
Because the process of your request has not
progressed to a point where there have been any
initial, substantive Agency determination of the
release or withholding of responsive records, I can
offer you no administrative remedy.
4 Mitchell writes,
The legal authority relied upon I the Memorandum in Support
of Defendant's Motion for Partial Dismissal and Motion for
Summary Judgment (hereinafter referred to the "Memorandum"),
provides clear legal basis for the Court to either dismiss
Plaintiff's [sic] Complaint, or granting summary judgment to
Defendant as a matter of law.
Plaintiffs disagree. Mitchell cites no case law to support
the above paragraph.
Rather Plaintiffs lawfully requested documents, mostly of
KNOWN EXISTENCE AND LOCATION, and, as the Court may be aware
When an administrative appeal is denied, a requester has
the right to appeal the denial in court. A FOIA appeal
lawsuit can be filed in the U.S. District Court in the
district where the requester lives. The requester can also
file suit in the district where the documents are located or
in the District of Columbia. When a requester goes to court,
the burden of justifying the withholding of documents is on
the government. This is a distinct advantage for the
requester.
Mitchell wrongly seeks to have Defendant withhold the requested
documents for the reason that she CLAIMS Plaintiffs have failed
to exhaust administrative remedies.
But Plaintiffs HAVE EXHAUSTED ADMINISTRATIVE REMEDIES as NSA
former deputy director Crowell told Payne IN WRITING.
5 Mitchell writes,
In Paragraphs 1-6 of Plaintiffs' Response, Plaintiffs appear
to be claiming the Defendant has misrepresented this facts
concerning Plaintiff Payne's Freedom of Information Act/
Privacy Act("FOIA/PA") requests. It is true that Plaintiff
Payne did file two FOIA request with the National Security
Agency ('NSA/Agency") and that NSA did not respond with the
statutory time limit. It is also true that Plaintiff Payne
appealed with NSA the nonresponse to both requests and
subsequently received a letter dated 31 December 1997, from
William P. Crowell, the Freedom on Information AC/Privacy
Act appeals Authority. Mr. Crowell stated, among other things
that no administrative remedy could be offered at that time.
Lawyer Mitchell's "at that time" appears to be an argument that
Plaintiffs should wait indefinitely for NSA to produce requested
documents. Plaintiffs exercise their rights and proceed to
court as the law allows when administrative remedies have been
exhausted.
Mitchell UNSUCCESSFULLY ATTEMPTS to make a valid argument that
Plaintiffs had to wait even longer AFTER ADMINISTRATIVE REMEDIES
WERE EXHAUSTED before filing a FOIA lawsuit.
6 Mitchell writes,
Attachment 4 to Exhibit A, the Winch Declaration attached to
Defendant's Memorandum.
NSA employee GARY W. WINCH [Winch], Director of Policy, made
a false statement under oath in an unsuccessful attempt to
reverse NSA deputy director Crowell's letter informing Payne
that administrative remedies were exhausted.
Winch's violation of the False Statement Act earned Winch
a criminal complaint affidavit file with selected magistrate
judge Antonin Scalia.
6 Mitchell writes,
Despite the fact that Mr. Payne was clearly informed that he
could treat the letter from William P. Crowell as a denial of
his appeal and he could proceed under 5 U.S.C. section 552 to
seek judicial review of the determination, Mr. Payne did not
proceed to exercise his right to file a civil lawsuit in the
United States at that time.
Mitchell unsuccessfully attempts to make a valid argument that
IMMEDIATELY UPON receiving Crowell's letter that Plaintiffs
were REQUIRED to file a lawsuit. Mitchell cites no law to
support her argument.
The reason Mitchell cites no law is that the law does not
specify WHEN a plaintiff must file a lawsuit.
As the court may know 5 USC 552 states
(B) On complaint, the district court of the United States
in the district in which the complainant resides, or has his
principal place of business, or in which the agency records
are situated, or in the District of Columbia, has jurisdiction
to enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld
from the complainant. In such a case the court shall determine
the matter de novo, and may examine the contents of such
agency records in camera to determine whether such records or
any part thereof shall be withheld under any of the exemptions
set forth in subsection (b) of this section, and the burden is
on the agency to sustain its action. In addition to any other
matters to which a court accords substantial weight, a court
shall accord substantial weight to an affidavit of an agency
concerning the agency's determination as to technical
feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the
defendant shall serve an answer or otherwise plead to any
complaint made under this subsection within thirty days after
service upon the defendant of the pleading in which such
complaint is made, unless the court otherwise directs for good
cause shown.
So Mitchell's argument that Plaintiffs were required to file
this lawsuit within a specific time after receiving Crowell's
letter must be dismissed as not supported by law.
7 Mitchell writes,
In a letter dated 6 January 1997, Plaintiff Payne was
advised that his request for a waiver of fees had been denied
and informed him of the estimate of the cost to search for the
records concerning the algorithms.
NSA was clearly attempting to deny furnishing the requested
documents by asking Payne for money for SEARCHING for the
documents. Payne worked with NSA implementing NSA crypto
algorithms for about ten years. Payne KNOWS WHO has
documents and about WHERE the documents are located.
NO SEARCH IS REQUIRED.
Asking for fees to SEARCH is clearly a unintelligent ruse
to deny furnishing the legally requested documents.
8 Mitchell writes
Attachment 5 to Exhibit A, the Winch Declaration attached
to Defendant's Memorandum. Once that letter was received,
Mr. Payne was clearly on notice that NSA was continuing
to process his FOIA request, and he was specifically
notified that if he did not agree with the fee determination,
he could appeal in writing with 60 days to the NSA/CSS
Freedom of Information Act Appeals Authority. He chose not
to appeal the denial of the fee waiver nor did he pay the
estimated costs. Exhibit A, Winch Declaration, at 5, section
14.
Payne is not required to appeal fee determination denial if
Plaintiffs are NOT SUING OVER A FEE WAIVER DENIAL.
Mitchell cites no law to show that Payne is required to appeal
a FOIA fee denial before filing suit for legally requested
documents.
Winch wrote,
The search cost estimate was $1,317.50, as computed in
accordance with DOD regulations. Mr. Payne was informed
that 2 hours of search would be conducted at no cost to
him as required by the FOIA In accordance with its
regulations, NSA requires advance payment of cost
exceeding $250 prior to initiating a search. Mr. Payne
was so informed in the Agency's 6 January letter and was
requested to pay the $1,267.50 (the remainder of the
estimated search costs) within 30 days.
Winch CLEARLY attempts to scam Payne by asking for $1,317.50
for a SEARCH. No search is required.
Filing a lawsuit permits Discovery WITHOUT LEAVE OF THE COURT.
Discovery is used to located documents.
Rule 26 (b)(1)
Parties may obtain discovery regarding any mater, not
privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the
claim or defense of any other party, including the existence,
description, nature, custody, condition, and LOCATION of any
books documents, or other tangible thing and the identity and
location of persons have knowledge of any discoverable
matter.
Economics of clearly wasting $1,317.50 or paying $125 for this
public internationally Internet-viewed lawsuit clearly favored
the latter approach to get the lawfully requested documents.
9 Mitchell writes
Despite Plaintiffs unsupported protestation to the contrary,
the law is absolutely clear that when a requester elects not
to go to court immediately -in this case, immediately after
receiving the letter dated 31 December 1996 and before
receiving the letter dated 06 January 1997 - he must exhaust
all administrative remedies within the agency. Mr. Payne
must have administratively exhausted the decision on the fee
waiver decision. Oglesby v. Department of the Army, 920 F2.d
57, 61 (D.D.Cir. 1990); McDonnell v. United States of America,
4 F.3d 1227, 1240 (3d Cir. 1993). He is not do so.
Mitchell cites no law to support her statement that Plaintiffs
are REQUIRED "to go to court immediately." In fact, appearance
is that Mitchell has made another false statement under oath.
The fee $1,317.50 Winch requested for a search for documents
of known location, or whose location could be established
with Discovery, did not have to be appealed to exhaust
administrative remedies.
Payne could have appealed the denial of waiver of fees but
chose not to because this was clearly a ploy on Winch's part
to cost Payne money. And Mitchell cannot, because their is
no requirement, cite law to show that Payne is required
to appeal a fee waiver denial if Plaintiffs are not using
about fee waiver denial.
If Plaintiff's WISHED, which they did not, to sue for
fee waiver, then Payne would have had to appeal the denial
of FEE WAIVER to exhaust administrative remedies.
5 USC 552 4(A) states about a fee waiver denial lawsuit
(vii) In any action by a requester regarding the waiver of
fees under this section, the court shall determine the matter
de novo: Provided, That the court's review of the matter shall
be limited to the record before the agency.
But this lawsuit IS NOT ABOUT WAIVER OF FEES, it is about
obtaining the lawfully requested documents.
Mitchell again attempts, unsuccessfully, to distort the law
by citing Oglesby and McDonnell where administrative remedies
were NOT exhausted.
This lawsuit is about obtaining documents.
Plaintiffs DID NOT sue for fee waiver denial. Therefore,
no appeal of FEE WAIVER DENIAL was required.
10 Mitchell writes
Plaintiffs not attempt to excuse Plaintiff Payne's failure
to exhaust the administrative appeal process, by claiming that
the request for payment is a "ploy" to avoid providing
the documents. Plaintiff Payne asserts that he knows where
the records are located with NSA because of his association
with the Agency during his employment with Sandia National
Laboratory [sic] and, therefore, he maintains that no search
is required. Plaintiffs' Response, at 4 section 9. Plaintiff
Payne also asserts that even if he had paid the estimated
costs, the Agency would not have produced the documents.
Within the specified guiltiness, the FOIA allows an agency to
assess fees for processing requests made under the Act and
to require advance payment of estimated fees if it is
determined that the fees will exceed $250. 5 U.S.C section
552(a)(4)(A)(i), (v). The obligation is to conduct a search,
the scope of which is reasonably calculated to lead to the
discovery of responsive records. Under the law, there is no
requirement that records actually be discovered in a search
for which a requester pays. OMB Fee Guidelines, 52 Fed. Reg.
10,011, 10,018 (1987). Even if Mr. Payne did know the
location of the records, (and Defendant certainly does not
agree that he does), The Agency would still have an
obligation under the law to conduct an adequate search.
Further, even if the records are found, they may still be
withheld under various FOIA exemptions. In fact, the letter
from James P. Cavanaugh dated 06 January 1997, specifically
informed Mr. Payne that if any responsive records were found,
they would still have to be reviewed for releasibility and
that the records of this type most likely would be classified
or otherwise exempt from disclosure. Attachment F to Exhibit A
to Defendant's Memorandum.
Plaintiffs make an unsupported argument that because NSA
did not respond to the FOIA requests within the allotted time,
and because NSA failed to return the green return receipt
cards, (Plaintiffs' Response, at 2 section 4),"[t]he law
allows at requester to consider that his or her request has
been denied . . . [t]his permits the requester to file an
administrative appeal." Even if this statement were true,
it has not bearing on the facts before the Court. Plaintiff
Payne did not timely file in Federal court prior to receiving
the January 1997 letter from NSA informing him of the fee
determination. He may not pursue his action in Federal
court because he has not exhausted administrative remedies.
Mitchell again is incorrect.
Two issues can come before the court.
1 Demand for documents illegally withheld under the FOIA.
2 Demand for fee waiver.
Text of both laws are reproduced in this ANSWER.
The lawsuit is about 1. NOT 2.
Administrative remedies were exhausted as Crowell stated.
And Plaintiffs proceeded to court as permitted by law.
Mitchell, as an officer of the court, has again violated
the False Statement Act again by presenting to the Court
and argument not relying on the facts of this case.
Plaintiffs did, in fact, EXHAUST ALL ADMINISTRATIVE REMEDIES
as required to proceed to court.
11 Michell states,
The remainder of Plaintiffs Response, [Paragraphs 7-14]
is filled with unrelated pieces of information from various
sources, suppositions, assumptions, and accusations, all
apparently designed to challenge the Agency's decision that
to admit or deny the existence of the Iranian and Libyan
messages and translations would reveal classified information.
As discussed in some depth in Defendant's Memorandum, the
Agency is accorded great deference in the area, and nothing
Plaintiffs have presented rises to level of evidence to show
"bad faith" by the Agency in it decision-making process.
Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).
In addition, Plaintiffs appear to be claiming that
information concerning records of Iranian message traffic
and translations has been put into the public domain by
both former President Reagan and various authors or books and
newspapers. Plaintiffs bear the burden of "pointing to
specific information in the public domain that appears to
duplicate the information withheld." Afshar v. Department of
State, 702 F2.d 1125, 1130 (D.D.C. 1989). With regard to
classified material pertaining to national security concerns,
court have held that unofficial leaks and public surmise can
often be ignored by foreign governments that might perceive
themselves to be harmed by disclosure; but official
acknowledgment may for a government to retaliate. Afshar,
702 F.2d at 1131.
Defendant submit that, in this case, all Plaintiffs have
done is identify a mishmash of information from various
public sources, including the Internet, and then claim that
if it is published in some manner, it must be true. Such a
conglomeration of information does nothing to satisfy
Plaintiff's burden in this regard. Plaintiffs cannot point
to any source which published the documentation which
Plaintiffs asserts exists: NSA intercepted the Libyan message
and translations between January 21, 1980 and June 19, 1996.
In addition, generalized allegations that classified
information has been leaked to the media or otherwise made
available to the public will not defeat an Exemption 1 claim
under the FOIA. Executive Order 12958 section 1.2 (c); Public
Citizen v. Department of State, 11 F.3d 198, 201 (D.C. Cir.
1993).
Michell's statement,
Plaintiffs cannot point to any source which published the
documentation which Plaintiffs asserts exists: NSA
intercepted the Libyan message and translations between
January 21, 1980 and June 19, 1996.
is clearly false as the following Internet news story
attests.
NSA, Crypto AG, and the Iraq-Iran Conflict
by J. Orlin Grabbe
One of the dirty little secrets of the 1980s is that the U.S.
regularly provided Iraq's Saddam Hussein with top-secret
communication intercepts by the U.S. National Security
Agency (NSA). Consider the evidence.
When in 1991 the government of Kuwait paid the public
relations firm of Hill & Knowlton ten million dollars to drum up
American war fever against the evil dictator Hussein, it
brought about the end of a long legacy of cooperation
between the U.S. and Iraq. Hill & Knowlton resurrected the
World War I propaganda story about German soldiers
roasting Belgian babies on bayonets, updated in the form
of a confidential witness (actually the daughter of the
Kuwaiti ambassador to the U.S.) who told Congress a tearful
story of Iraqi soldiers taking Kuwaiti babies out of incubators
and leaving them on the cold floor to die. President George
Bush then repeated this fabricated tale in speeches ten times
over the next three days.
What is remarkable about this staged turn of events is that,
until then, Hussein had operated largely with U.S. approval.
This cooperation had spanned three successive
administrations, starting with Jimmy Carter. As noted by
John R. MacArthur, "From 1980 to 1988, Hussein had
shouldered the burdenof killing about 150,000 Iranians, in
addition to at least thirteen thousand of his own citizens,
including several thousand unarmed Kurdish civilians, and in
the process won the admiration and support of elements of
three successive U.S. Administrations" [1].
Hussein's artful slaughter of Iranians was aided by good
military intelligence. The role of NSA in the conflict is an open
secret in Europe, the Middle East, and Asia. Only in this
country has there been a relative news blackout, despite the
fact that it was the U.S. administration that let the crypto cat
out of the bag.
First, U.S. President Ronald Reagan informed the world on
national television that the United States was reading Libyan
communications. This admission was part of a speech
justifying the retaliatory bombing of Libya for its alleged
involvement in the La Belle discotheque bombing in Berlin's
Schoeneberg district, where two U.S. soldiers and a Turkish
woman were killed, and 200 others injured. Reagan wasn't
talking about American monitoring of Libyan news
broadcasts. Rather, his "direct, precise, and undeniable proof"
referred to secret (encrypted) diplomatic communication
between Tripoli and the Libyan embassy in East Berlin.
Next, this leak was compound by the U.S. demonstration that
it was also reading secret Iranian communications. As reported
in Switzerland's Neue Zurcher Zeitung, the U.S. provided the
contents of encrypted Iranian messages to France to assist
in the conviction of Ali Vakili Rad and Massoud Hendi for
the stabbing death in the Paris suburb of Suresnes of the
former Iranian prime minister Shahpour Bakhtiar and his
personal secretary Katibeh Fallouch. [2]
What these two countries had in common was they had
both purchased cryptographic communication equipment from
the Swiss firm Crypto AG. Crypto AG was founded in 1952
by the (Russian-born) Swedish cryptographer Boris Hagelin
who located his company in Zug. Boris had created the
"Hagelin-machine", a encryption device similar to the German
"Enigma". The Hagelin machine was used on the side of the
Allies in World War II.
Crypto AG was an old and venerable firm, and Switzerland
was a neutral country. So Crypto AG's enciphering devices for
voice communication and digital data networks were popular,
and customers came from 130 countries. These included the
Vatican, as well the governments of Iraq, Iran, and Libya. Such
countries were naturally skeptical of cryptographic devices
sold in many NATO countries, so turned to relatively neutral
Switzerland for communication security.
Iran demonstrated its suspicion about the source of the leaks,
when it arrested Hans Buehler, a top salesman for Crypto AG,
in Teheran on March 18, 1992. During his nine and a half
months of solitary confinement in Evin prison in Teheran,
Buehler was questioned again and again whether he had
leaked Teheran's codes or Libya's keys to Western powers.
Luckily Buehler didn't know anything. He in fact believed in
his own sales pitch that Crypto AG was a neutral company
and its equipment was the best. They were Swiss, after all. [3]
Crypto AG eventually paid one million dollars for Buehler's
release in January 1993, then promptly fired him once they
had reassured themselves that he hadn't revealed anything
important under interrogation, and because Buehler had begun
to ask some embarrassing questions. Then reports appeared on
Swiss television, Swiss Radio International, all the major
Swiss papers, and in German magazines like Der Spiegel. Had
Crypto AG's equipment been spiked by Western intelligence
services? the media wanted to know. The answer was Yes [4].
Swiss television traced the ownership of Crypto AG to a
company in Liechtenstein, and from there back to a trust
company in Munich. A witness appearing on Swiss television
explained the real owner was the German government--the
Federal Estates Administration. [5]
According to Der Spiegel, all but 6 of the 6000 shares of Crypto
AG were at one time owned by Eugen Freiberger, who resided
in Munich and was head of the Crypto AG managing board
in 1982. Another German, Josef Bauer, an authorized tax
agent of the Muenchner Treuhandgesellschaft KPMG, and
who was elected to the managing board in 1970, stated that his
mandate had come from the German company Siemens. Other
members of Crypto AG's management had also worked at
Siemens. Was the German secret service, the
Bundesnachrichtendienst (BND), hiding behind the Siemens'
connection?
So it would seem. Der Spiegel reported that in October 1970,
a secret meeting of the BND had discussed how the Swiss
company Graettner could be guided into closer cooperation
with Crypto AG, or could even merged with it. The BND
additionally considered how "the Swedish company Ericsson
could be influenced through Siemens to terminate its own
cryptographic business." [6]
A former employee of Crypto AG reported that he had to
coordinate his developments with "people from Bad
Godesberg". This was the location of the "central office for
encryption affairs" of the BND, and the service instructed
Crypto AG what algorithms to use to create the codes. The
employee also remembers an American "watcher", who
strongly demanded the use of certain encryption methods.
Representatives from NSA visited Crypto AG often. A
memorandum of a secret workshop at Crypto AG in August
1975, where a new prototype of an encryption device was
demonstrated, mentions the participation of Nora L.
Mackebee, an NSA cryptographer. Motorola engineer
Bob Newman says that Mackebee was introduced to him
as a "consultant". Motorola cooperated with Crypto AG
in the seventies in developing a new generation of
electronic encryption machines. The Americans "knew Zug
very well and gave travel tips to the Motorola people for the
visit at Crypto AG," Newman told Der Spiegel.
Knowledgeable sources indicate that the Crypto AG
enciphering process, developed in cooperation with the NSA
and the German company Siemans, involved secretly
embedding the decryption key in the cipher text. Those who
knew where to look could monitor the encrypted
communication, then extract the decryption key that was also
part of the transmission, and recover the plain text message.
Decryption of a message by a knowledgeable third
party was not any more difficult than it was for the intended
receiver. (More than one method was used. Sometimes the
algorithm was simply deficient, with built-in exploitable
weaknesses.)
Crypto AG denies all this, of course, saying such reports are
"pure invention".
What information was provided to Saddam Hussein exactly?
Answers to this question are currently being sought in a
lawsuit against NSA in New Mexico, which has asked to see
"all Iranian messages and translations between January 1, 1980
and June 10, 1996". [7]
The passage of top-secret communications intelligence to
someone like Saddam Hussein brings up other questions.
Which dictator is the U.S. passing top secret messages to
currently? Jiang Zemin? Boris Yeltsin?
Will Saddam Hussein again become a recipient of NSA
largess if he returns to the mass slaughter of Iranians? What
exactly is the purpose of NSA anyway?
One more question: Who is reading the Pope's
communications?
Bibliography
[1] John R. MacArthur, Second Front: Censorship and
Propaganda in the Gulf War, Hill and Wang, New York, 1992.
[2] Some of the background of this assassination can be found
in "The Tehran Connection," Time Magazine, March 21, 1994.
[3] The Buehler case is detailed in Res Strehle, Verschleusselt:
der Fall Hans Beuhler, Werd Verlag, Zurich, 1994.
[4] "For years, NSA secretly rigged Crypto AG machines so
that U.S. eavesdroppers could easily break their codes,
according to former company employees whose story is
supported by company documents," "No Such Agency, Part 4:
Rigging the Game," The Baltimore Sun, December 4, 1995.
[5] Reported in programs about the Buehler case that were
broadcast on Swiss Radio International on May 15, 1994 and
July 18, 1994.
[6] "Wer ist der befugte Vierte?": Geheimdienste unterwandern
den Schutz von Verschlusselungsgeraten," Der Spiegel 36,
1996.
[7] U.S. District Court for the District of New Mexico,
William H. Payne, Arthur R. Morales, Plaintiffs, v. Lieutenant
General Kenneth A. Minihan, USAF, Director of National
Security Agency, National Security Agency, Defendant,
CIV NO 97 0266 SC/DJS.
November 2, 1997
Web Page: http://www.aci.net/kalliste/
Michell attempts to make a valid argument that withholding of
intercepted message is proper because they are classified.
Mitchell references EO 12958 1.2,
c) Classified information shall not be declassified
automatically as a result of any unauthorized disclosure of
identical or similar information.
Plaintiffs continue to believe, classification abuse aside, that
NSA should come clean about it bungled spy sting on Iran
and settle with its victims. And US courts should not help NSA
hide.
Clearly NSA getting caught in, according the Baltimore Sun,
the most "audacious" spy sting in its history, spiking crypto
units so that the crypto key is transmitted with cipher text
falls under EO 12958, Sec. 1.8. Classification Prohibitions and
Limitations.
(a) In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative
error;
(2) prevent embarrassment to a person, organization, or
agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not
require protection in the interest of national security. ...
Not section 1.2.
Clearly, NSA getting caught is one of the greatest blunders in
intelligence history fall under 1.8 (1) and (2).
And also may account for the greatest number of dead victims.
But this is one part of this of this lawsuit. To get a help
get a count of the dead and maimed.
12 Mitchell writes
Plaintiffs' allegation in the Response at Paragraph 9,
at 4, that sanctions under the discovery rules might finally
cause the Agency to produce some of the requested records is
fallacious. This is a FOIA action; the purpose is to
determine whether or not the Plaintiffs are properly in
Federal Court, and whether or not the documents requested
have been properly withheld under FOIA law. It is not
appropriate to use the discovery rules contained in the
Federal Rules of Civil Procedure to bypass the requirements
of the FOIA.
Mitchell is incorrect in her statement, " This is a FOIA
action ..."
This is a LAWSUIT which WILL BE conducted under the Federal
Rules of Civil Procedure. Even in New Mexico.
Mitchell attempts to inject the rules of the FOIA into
the Federal Rules of Civil Procedure. Plaintiffs will continue
to object.
The Plaintiffs have EXHAUSTED ADMINISTRATIVE REMEDIES and are
in court to obtain documents illegally withheld. Plaintiffs
will use the tools available, including Discovery, under the
Federal Rules of Civil Procedure to locate and get the
documents.
Plaintiffs ARE NOT in court to sue about waiver of fees.
13 Mitchell concludes
Plaintiffs' Response contains no legal support for their
contention that they are entitled to the requested
information. Contrary to their assertion, the legal citations
contained Defendant's Memorandum ARE most certainly relevant,
because they contain the legal basis on which this Court must
base it decision. Plaintiffs' Complaint must be dismissed,
or in the alternative, summary judgment must be granted to
defendant.
Mitchell cites no legal support for her arguments. Rather
Mitchell has UNSUCCESSFULLY ATTEMPTED to make Plaintiffs'
lawsuit into a fee waiver denial lawsuit. This is not a
fee waiver lawsuit. This is a lawsuit to obtain lawfully
requested documents.
CONCLUSIONS
1 Replace judges Svet and Campos because these judges
have demonstrated, IN WRITING, they do not follow the
Federal Rules of Civil Procedure.
2 Remove lawyer Mitchell from the lawsuit for criminal
violation of the False Statement Act. And violation of
the lawyers Rules of Professional Conduct.
Specifically Mitchell's violated in her REPLY
In all professional functions a lawyer should be competent,
prompt, and diligent.
A lawyer should use the law's procedures only for legitimate
purposes and not to harass or intimidate other.
[i]t is also a lawyer's duty to uphold the legal process.
Failure to comply with an obligation or prohibition imposed
by rule is a basis for invoking the disciplinary process.
A lawyer shall not bring or defend a proceeding, or assert
or controvert and issue therein, unless there is a basis for
doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of
existing law.
A lawyer shall not knowingly:
(1) make a false statement of material fact of law to a
tribunal.
(4) offer evidence that the lawyer knows to be false.
A. make a false statement of material fact or law to a third
person; ...
16-804. Misconduct
C. engage in conduct involving dishonest, fraud, deceit or
misrepresentation;
B. commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer
in other respects.
3 Have replacement judges ORDER Defendant to immediately
produce documents in machine-readable format for publication on
Internet.
In preparation for settlement of this unfortunate
bungled spy sting. And analysis of 'deficient' NSA
cryptographic algorithm work designed to get the US government
out of the cryptography business.
Respectfully submitted,
_________________________
William H. Payne
13015 Calle de Sandias NE
Albuquerque, NM 87111
Telephone approval
Morales in New Orleans
_________________________
Arthur R. Morales
1024 Los Arboles NW
Albuquerque, NM 87107
Pro se litigants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing memorandum
was mailed to Lieutenant General Kenneth A. Minihan, USAF,
Director, National Security Agency, National Security Agency,
9800 Savage Road, Fort George G. Meade, MD 20755-6000
and hand delivered to Jan E Mitchell, Assistant US Attorney,
525 Silver SW, ABQ, NM 87102 this Friday November 28, 1997.
[End]