DOJ Confirms Previously-Denied File Said to Implicate US Officials in Nuclear Espionage by Erik Larson

In a March 12, 2012 FOIA appeal response, the US Dept. of Justice (DOJ) implicitly acknowledged the existence of FBI File 203A-WF-210023, which FBI whistleblower Sibel Edmonds has said contains evidence of top US officials’ complicity in the trafficking of nuclear secrets, arms and drugs, in addition to bribery, blackmail, money-laundering and obstruction of investigation into 9/11. In 2008, the Sunday Times of London reported that the FBI, in response to a different FOIA request, denied the existence of the file.

The January 20, 2008 report by the Sunday Times, FBI denies file exposing nuclear secrets theft, briefly summarized Edmonds’ allegations about the file in this way: “She says the FBI was investigating a Turkish and Israeli-run network that paid high-ranking American officials to steal nuclear weapons secrets. These were then sold on the international black market to countries such as Pakistan and Saudi Arabia.” According to an article by former CIA Officer Philip Giraldi, the file name 203A-WF-210023 indicates it’s an “FBI Washington Field Office, Counterintelligence Division, Turkish Unit File.”

When the Times asked Edmonds about FBI File 203A-WF-210023, she said, “The file refers to the counterintelligence programme that the Department of Justice has declared to be a state secret to protect sensitive diplomatic relations.” The article goes on to say that, “the FBI responded to a [Liberty Coalition] freedom of information request for a file of exactly the same number by claiming that it did not exist. But The Sunday Times has obtained a document signed by an FBI official showing the existence of the file.” No other information was given regarding the latter document.

The Times’ January 20 report was the second of three articles concerning interviews with Edmonds and their own investigation. The first was For sale: West’s deadly nuclear secrets on January 6, and the third was Tip-off thwarted nuclear spy ring probe on January 27. These reports received mainstream media coverage in Europe, Asia and Australia and were widely circulated online, but were ignored by US mainstream media, despite their relevance to US national security, Edmonds’ established credibility as a witness, and her relatively high public profile as a whistleblower barred from testifying in court cases due to ‘state secrets’ gag orders in 2002 and 2004.* In a 2009 deposition under oath, Edmonds affirmed her allegations as reported by the Times, as well as testifying to her knowledge of other, related, crimes and corruption. This deposition was also ignored by US MSM.

January 2011, I submitted a FOIA request for FBI File 203A-WF-210023 and records with references to Tom Lantos, a deceased Congressman (D-CA) featured in Sibel Edmonds’ State Secrets Privilege Gallery (posted in conjunction with the January 6 Times report; click here for names/info). In some of their correspondence regarding my request, the FBI seems to indirectly confirm the existence of the file, such as by saying there were 3429 “potentially responsive” pages, and that “[Lantos] shares the same investigative file.” However, in its final response the FBI refused to confirm or deny the existence of responsive records, saying its “investigatory interest” in an “individual or organization” could be revealed (see relevant FBI correspondence, scanned in reverse chronological order). FOIA exemption (b)(7)(E) was cited, which exempts sensitive techniques, procedures and guidelines from disclosure.

I appealed to the DOJ Office of Information Policy (OIP), and received the March 12, 2012 letter stating that, “All of the information responsive to your request [for records concerning FBI File 203A-WF-210023] is classified.” FBI’s withholding was affirmed on “partly modified grounds”; FOIA exemption (b)(1) is the only one cited, which exempts classified information from disclosure. The letter also says the responsive information is being referred to the DOJ Department Review Committee (DRC) for declassification review.

Significance of DOJ’s confirmation of FBI File 203A-WF-210023

The March 12 DOJ response is significant for several reasons. One is that it’s the first official public acknowledgment of the existence of FBI File 203A-WF-210023; the DOJ has implicitly acknowledged its existence by stating that the information responsive to my request for this file (and Lantos references) is classified. This official confirmation of the file’s existence gives additional credence to Edmonds’ already credible allegations.

Was the fact of the existence of FBI File 203A-WF-210023 previously classified information?

The DOJ March 12 response is also significant because it means the fact of the existence of FBI File 203A-WF-210023 is not classified information. Based on the Times’ description of the FBI’s 2008 response to the Liberty Coalition, it seems likely the fact of its existence was classified at that time. Note that, in 2011, the FBI responded differently to my request; rather than affirmatively stating that responsive records didn’t exist, they simply refused to confirm or deny the existence of responsive records, aka a Glomar response.

Considering that “203A” means it’s an FBI Counterintelligence Division, Turkish Unit file, in 2008 the FBI was probably using the FOIA (c)(3) exclusion, which permits the FBI to not only withhold records “pertaining to foreign intelligence or counterintelligence, or international terrorism,” but to, “as long as the existence of the records remains classified information, treat the records as not subject to the requirements of [the FOIA].” According to still in effect 1986 guidance from Attorney General Ed Meese, when using any of the three subsection (c) exclusions, the proper agency response is to advise requesters that, “there exist no records responsive to your FOIA request.”

The Meese guidance has long been public but little known. In 2011 there was some controversy over the standard exclusion response when DOJ attempted to codify it in a proposed rule change, following a federal judge’s discovery that DOJ had “provided false and misleading information to the Court” about the existence of records requested under FOIA. In 2011, Judge Carney made public an unclassified version of a ruling in that case that called attention to the standard exclusion response and stated: “The Government cannot, under any circumstance, affirmatively mislead the Court.”  The DOJ dropped its proposed rule change following the controversy, but, contrary to what most media reported, DOJ is only rethinking its approach, and will continue its decades-long practice of asserting to the public that responsive records don’t exist, when subsection (c) exclusions are utilized.

DOJ denied that the practice constitutes “lying”, but it can be expected that requesters have been misled by the exclusion response. The Times reporters’ interpretation of the FBI’s 2008 response to the Liberty Coalition FOIA would seem to be one example; they wrote that the FBI was “claiming that [FBI File 203A-WF-210023] did not exist.” The Times article concludes, “An FBI spokesman said he was not familiar with the case file but he added: ‘if the FBI says it doesn’t exist, it doesn’t exist.’” Of course, the FBI may say it didn’t actually say the file didn’t exist; it simply said responsive records didn’t exist (because the law permits it to exclude the requested records from the category of ‘responsive’ records).

The Meese guidance gives the purpose of the standard (c) exclusion response: “… so that no telling inferences can be drawn by requesters.” Hopefully, due to the controversy, advocates for transparency/accountability are better prepared to draw ‘telling inferences’ from agency responses. However, as most media stated or implied a new practice was proposed and then dropped, many requesters may still be confused.

Since receiving the March 12 DOJ letter, I’ve FOIA’d all records pertaining to classification and declassification of the fact of the file’s existence, all records pertaining to declassification review of the file’s contents, and the contents of the FBI and DOJ administrative case files pertaining to my 2011 FOIA request.

The information in FBI File 203A-WF-210023 is classified: why?

Another significant fact is that, per the DOJ March 12 letter, “all of the information … is classified.” The proper purpose of classification is to prevent disclosure of information when national security could be harmed as a result. Clearly, national security could be harmed by exposure/disruption of an investigation into an international nuclear black market network facilitated by high-level US officials.

However, Edmonds has said that “by the end of January 2002” the investigation was shut down. Those implicated have long been aware of the investigation, and the passage of time has also reduced the sensitivity of this information. More than ten years later, there have been no arrests or indictments, let alone trials. No public information indicates that any part of the US government – executive office or agency, Congress or court – is working to establish accountability.

Based on Edmonds’ 2009 testimony and other public statements, it may be the claims about the need to protect “national security”, “diplomatic relations” and “state secrets” are an attempt to conceal threats to national security, to protect a corrupt system and powerful, well-connected corrupt entities, and to cover up associated crimes. Assuming Edmonds’ allegations are factual, this cover up is itself is potentially criminal and also a national security concern, in addition to the other crimes and the failure of the US government to hold those involved accountable. It seems likely the national security interests of the US republic would be better served, at this point, by public hearings, testimony under oath and disclosure of records, than by silence and continued suppression of information pertaining to this file.

DOJ confirmation of FBI File 203A-WF-210023 aids disclosure efforts

Finally, DOJ’s March 12 acknowledgment is significant is because it will aid efforts to compel disclosure of records pertaining to FBI File 203A-WF-210023, which, in turn, may help to establish truth and justice. OIP’s referral of the information to the DRC is standard practice, and a useful step forward 28 CFR § 17.14(a)(2)(2010) PDF. It’s possible that with a level of oversight above the FBI, some or all of the information in this file will be declassified in the near future. However, considering the DOJ’s track record concerning transparency and accountability, there isn’t much reason to have hope here.

As the FOIA requester, my options at this point are: 1) Wait for DRC to finish its review, which could be sooner or later. 2) Sue for release of the records. This is unlikely to be productive, as federal judges tend to defer to the government in matters concerning national security, and doing so while DRC is reviewing the file would be premature. 3) Cancel this FOIA-triggered review and request a ‘mandatory declassification review’ (MDR) by the FBI. Cancellation would be necessary because a single requester isn’t permitted to request records under both FOIA and MDR at the same time.

The National Security Archive at GWU recommends the MDR process when classified information is involved, as it provides for appeal to the National Archives’ Interagency Security Classification Appeals Panel (ISCAP). Excepting the US president, ISCAP is the final authority on classification, and it has a much better track record on declassification than agencies or courts. According to the 2010 annual report (PDF) of the Information Security Oversight Office (ISOO) (ISCAP’s parent organization), during the 1996-2010 period, 63% of pages pertaining to MDR appeals were declassified in their entirety, 29% were declassified in part, and only 8% were denied.

I decided to go with option 1) above, as other researchers have now filed requests for MDR of FBI File 203A-WF-210023. A helpful person at ISOO informed me that these two processes do not conflict when initiated by different individuals or organizations, and may facilitate each other. The DRC referral may mean the FBI has already done a declass review in response to my FOIA request; if so, FBI may simply deny these MDR requests outright, as agencies are only obligated to do a review every two years, in response to requests from the public. Any denial by FBI can be appealed to DRC, by which time it may have completed some or all of the FOIA-triggered review. Any denial by DRC can be appealed to ISCAP. And, if FBI fails to respond to these MDR requests in a year, or if DRC fails to respond in 180 days, appeals can be made directly to ISCAP. See here for more info on MDR appeals.

There’s no telling when ISCAP will finish its review, and no guarantee that anything will be declassified. If ISCAP does not declassify the information in this file, the only authority above it is the US president. There’s no formal process by which members of the public can appeal to the president, but any agency representative on ISCAP’s panel (DOJ has one) has the option of appealing to the president to overrule any ISCAP panel decision on declassification. The FBI will also have an opportunity, prior to release of any declassified information, to review it again and apply FOI/PA exemptions.

Conclusion

While disclosure’s important, it isn’t needed to know what needs to be done about FBI File 203A-WF-210023. The decade-long suppression of information concerning this investigation – aided and abetted by Establishment politicians, appointees, bureaucrats and media – is reason enough to withdraw support from them, and to support alternatives. But, this is just one of many examples of how the legitimacy of the US Establishment has been undermined by its own corruption. If the US is to be a republic in more than name only, the people need to check the concentration of power in the hands of those who would be unaccountable. Hopefully, the people will act before some loose nuke comes home to roost. Considering that Establishment politicians and media used, and continue to use, 9/11 as justification for foreign interventions and a domestic security state, it can be expected that a nuclear attack would likewise be used as a pretext for further militarism and erosion of liberty.

* Background: Sibel Edmonds’ allegations and FBI File 203A-WF-210023

For those unfamiliar with Sibel Edmonds’ case, Giraldi’s article Found in Translation provides a good summary, and it also addresses criticism of Edmonds’s claims. Also see this bulletpoint list of her many allegations. The Sibel Edmonds profile timeline at History Commons provides greater detail and context concerning significant events and entities, with links to sources. Bradblog and AntiWar have covered many significant developments in her case, and Luke Ryland has done a great deal of original research and analysis. Edmonds has her own websites; JustACitizen.com archives information pertaining to her case, and BoilingFrogsPost.com is devoted to publishing new information and analysis on corruption and media failures. She also recently published a book, Classified Woman, regarding her experiences as a whistleblower and the implications.

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