Declassified Docs Show NSA Trying To Prosecute A Journalist For His Successful FOIA Requests

from the war-on-whistleblowers,-leakers,-and-FOIA-records-requesters dept

Mon, Oct 30th 2017 9:45am — Tim Cushing

MuckRock has been digging into a large pile of declassified CIA documents for the past several months and has come up with some surprising finds. It recently liberated nearly 13 million pages of CIA documents -- known as the CREST archive -- via a FOIA lawsuit. Since this monumental release, MuckRock has covered everything from a CIA report on an Italian pasta shortage to deeper, darker topics like a CIA asset in Mexico being linked to a long list of atrocities.

Digging through the CIA's archives has dug up dirt on other agencies as well. Emma Best details another MuckRock/CIA gem -- one that shows the NSA attempting to prosecute a journalist for obtaining documents via FOIA requests.

Declassified documents in the Central Intelligence Agency’s archives show that while the CIA was looking to include the Freedom Of Information Act in its war on leaks, the National Security Agency was seriously considering using the Espionage Act to target target Puzzle Palace author James Bamford for using FOIA.

While Bamford has briefly discussed this on a handful of occasions, the declassified memos and briefings from NSA confirm that this was more than just an intimidation tactic or a passing thought - the NSA had truly wanted to jail a journalist for his use of public records. When the Agency determined that this was unlikely to happen, they moved on to exploring other legal avenues which could be used to punish Bamford for his FOIA work.

The chain of events leading up to the NSA's discussion about prosecuting someone for doing something the law specifically allowed unsurprisingly includes legal violations of its own the agency was hoping to keep hidden. What Bamford had obtained was a DOJ Inspector General's report detailing the CIA and NSA's abuse of electronic surveillance.

The NSA felt it should have been notified and given a chance to redact or withhold the documents. The DOJ, understandably, felt no compunction to share the documents with the subject of its investigation while the investigation was still underway. (This makes it surprising the documents ever made their way into Bamford's hands considering ongoing investigations make for handy FOIA exemptions.)

Despite the documents being made public, the NSA tried to argue they were still classified. And if Bamford was in possession of classified documents -- even ones obtained legally through FOIA requests -- he could be made to face espionage charges.

Due to “the serious consequences” of the FOIA disclosure, the NSA Director asked that the DOJ immediately contact Bamford to retrieve the documents along with all copies and to learn who else had that information. The NSA Director also requested that the DOJ tell Bamford “that his retention or disclosure of such information could result in his prosecution under 18 U.S.C. 793 or 798,” which are better known as the Espionage Act.

The government has never been shy about prosecuting whistleblowers and leakers. But in most cases, the documents at the center of the cases haven't been handed over to journalists as the result of a completely legal process. That the NSA would consider pushing for an espionage prosecution over legally-obtained documents shows how far the Intelligence Community is willing to go to protect its reputation.

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Filed Under: doj, espionage act, foia, james bamford, journalism, nsa, transparency

21 Comments

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Michael, 30 Oct 2017 @ 9:54am

"how far the Intelligence Community is willing to go to protect its reputation"

I'm pretty sure that ships has already sailed.
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- Anonymous Coward, 30 Oct 2017 @ 10:19am
  
  Re: Reputation
  That depends on your interpretation. As I see it, the Intelligence Community feels the need to routinely reassure people that they still don't respect the law or civil rights. If they don't regularly reiterate their lawlessness and hostile outlook, people might forget and assume that the Intelligence Community had seen the error of its ways.
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- David, 30 Oct 2017 @ 10:45am
  
  Re:
  That ship has sailed, been torpedoed, and sunk to the bottom of the ocean. But bills for sailcloth are still being written.
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- Jeff Green (profile), 30 Oct 2017 @ 12:18pm
  
  Re:
  surely that's a typo in the original story the line should have read
  
  "how far the Intelligence Community is willing to go to destroy its reputation"
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- Anonymous Coward, 30 Oct 2017 @ 1:33pm
  
  Re:
  They still have a reputation. Not a good one, but it's there.
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Anonymous Anonymous Coward (profile), 30 Oct 2017 @ 10:10am

Moltivation
Is this a show of how much the Intelligence community is on the side of creating an authoritarian government in charge of everything us citizens think and do? Or is it an admission that they are actually embarrassed by the many failures of their behavior in attempting to control the rest of the world? Or is it really true that they thing keeping everything they do secret is the best way to go about what they do, without accountability? Is there a difference between the second and third option above? Are there fourth, fifth and sixth or more possibilities?

Also, have they ever actually been right?

Also, if in fact they do report to some form of Star Chamber rather than the government (which is us) are they concerned that that fact might come out with the release of too much information?

The facts of the article leave me with more questions than answers. And, yes I am very concerned.
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Jordan Chandler, 30 Oct 2017 @ 10:12am

Murder
The US government has murdered its own citizens in times of need, I am not shocked they would merely prosecute them.
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ThaumaTechnician (profile), 30 Oct 2017 @ 10:30am

What I don't understand is...
..why is it that government so eagerly runs roughshod all over the 1st Amendment, and yet treads so gingerly when the 2nd Amendment is even just mentioned?
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- Anonymous Coward, 30 Oct 2017 @ 10:50am
  
  Re: What I don't understand is...
  "The government" is made up of a lot of different people. Since when does the NSA in particular tread lightly at a mention of the 2nd?
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  - Peter, 30 Oct 2017 @ 3:09pm
    
    Re: Re: What I don't understand is...
    Guns increases murder & accidental deaths. Murders scare the average citizen. The Government offers solutions which involve controlling the people by taking away their other rights. The 2nd amendment doesn't worry the Government as it does not interfere with their objective of control & power. It just gives "the children" something to play with.
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- JoeCool (profile), 30 Oct 2017 @ 11:53am
  
  Re: What I don't understand is...
  Probably because the people arguing for the 1st Amendment have a bullhorn in their hands while people arguing for the 2nd have an .30-06 rifle in theirs. ;)
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- Uriel-238 (profile), 30 Oct 2017 @ 3:07pm
  
  Government's regard for the second amendment
  According to the government, you have a right to own guns until they have cause to arrest you, then their officers will shoot you for owning a gun, and if you happen to be brought in alive, they'll give you extra charges for committing crimes with a gun.
  
  Some folks in government defend your right to be able to buy weapons, but yeah, don't expect due process once you find yourself on the wrong side of the law.
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Anonymous Coward, 30 Oct 2017 @ 12:53pm

Despite the documents being made public, the NSA tried to argue they were still classified. And if Bamford was in possession of classified documents -- even ones obtained legally through FOIA requests -- he could be made to face espionage charges.

Would the NSA also need to charge itself with espionage for releasing the documents in the first place?
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- Avatar28 (profile), 30 Oct 2017 @ 1:19pm
  
  Re:
  Well the NSA weren't the ones that released it. That's why they were mad. The DOJ was investigating the NSA. The DOJ released the report. The NSA was/is being pissy because it makes them look bad. The NSA would have to go after the DOJ for releasing it.
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  - Valkor, 30 Oct 2017 @ 2:57pm
    
    Re: Re:
    Note to self:
    Don't ever open the email attachment "classifieddocumenttrove.zip".
    
    To be on the safe side, maybe I should delete the email account and set the computer on fire, just to prove that I was never in 'posession'.
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Anonymous Coward, 30 Oct 2017 @ 1:40pm

The land of the free! lol
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That One Guy (profile), 30 Oct 2017 @ 6:14pm

That would have been an interesting case...
Assuming it wasn't assigned to a judge that was already bending over the second they spotted a badge, seems the defense would have been pretty trivial to put together there.

"Your Honor, my client received these documents from the Department of Justice though a legal process that allows members of the public to request copies of official documentation. If the Department of Justice was willing to treat the documents in question as falling under the FOIA laws, and able to be shared with members of the public, it would seem that the proper defendant in this case would be that agency, rather than my client for assuming that document handed to him by the Department of Justice were still classified such that they couldn't be shared with members of the public."
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Anonymous Coward, 30 Oct 2017 @ 8:44pm

"You can't blame the NSA!" screamed MyNameHere, stamping his feet vigorously. "You're not allowed to blame the NSA! You just can't!"
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Anonymous Coward, 30 Oct 2017 @ 11:17pm

Bamford is more than just a journalist to the IC

Emma Best details another MuckRock/CIA gem -- one that shows the NSA attempting to prosecute a journalist for obtaining documents via FOIA requests.

It's worth noting that Bamford isn't just any ordinary journalist. He is a former intelligence officer with inside knowledge of the NSA, and someone who has been a whistleblower regarding NSA spying on US citizens.
In other words, this is something that has become depressingly typical...retaliation for whistleblowing.
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NitroLab (profile), 30 Oct 2017 @ 11:46pm

If we had any real justice in this country Hayden, Clapper and many others involved in illegal mass surveillance would be rotting in prison right now.
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Josh_Stern (profile), 1 Nov 2017 @ 6:19am

Bamford discovers Operation Northwoods false flag
Good article here by Bruce Schneier with the story of how Bamford accidentally received the docs detailing the planned false flag treason of Operation Northwoods while doing his research on the NSA:

http://www.salon.com/2001/04/25/nsa_3/
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