UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

[Date Stamped:] 21 JAN 2003 

         

A. JAY CRISTOL, Pro Se,
                    
     Plaintiff,
										Case No. 03-20123
v. 

NATIONAL SECURITY AGENCY
a division/department of the Department
of Defense of the United States of America,

     Defendant.
___________________________________

COMPLAINT

A. JAY CRISTOL, Pro Se, Plaintiff in the above-styled cause, sues Defendant NATIONAL SECURITY AGENCY, a division/department of the Department of Defense of the United States of America ("NSA").

1. Plaintiff files this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (a)(4)(B). Plaintiff has submitted a FOIA request to the National Security Agency ("NSA"), the NSA has failed to comply with the request, and Plaintiff has exhausted all available administrative remedies. Thus, Plaintiff brings this claim before the Court for a de novo review and respectfully requests that the Court grant the relief requested herein.

2. Specifically, Plaintiff filed a request with the NSA pursuant to FOIA by letter dated April 26, 2001, a copy of which is attached as Exhibit "A". Plaintiff's request sought access to tapes, recordings, or other electronic or paper recordings of surveillance of common voice radio transmissions made or intercepted on June 8, 1967 by the U.S.S. Liberty, the U.S.S. Amberjack, and a U.S. EC-121 aircraft during a deployment in the Eastern Mediterranean. Importantly, Plaintiff did not seek the disclosure of information pertaining to the type of equipment used in or the manner of making the documented transmissions. Rather, Plaintiff's requests were exclusively limited to identifying and reviewing transmissions that either have already been disclosed to the public through the open radio and/or materials that demonstrate the existence of such transmissions - neither of which are exempt from disclosure.

3. The NSA assigned an identification number to the request, FOIA Case: 40039.

4. The NSA improperly denied the FOIA request via letter dated June 14, 2001, a copy of which is attached as Exhibit "B".

5. Plaintiff appealed the denial by letter dated July 6, 2001, a copy of which is attached as Exhibit "C".

6. The NSA admittedly lost track of the appeal and failed to timely process same, but eventually located same and ultimately improperly denied the appeal by letter dated August 20, 2002, a copy of which is attached as Exhibit "D".

7. The NSA, in its letter dated August 20, 2002 (Exhibit "D"), acknowledged that Plaintiff had exhausted all administrative remedies and was entitled to a review of its decision in the United States District Court in the district in which Plaintiff resides.

8. Plaintiff resides in the Southern District of Florida.

9. Thus, this Court has jurisdiction over this action and venue is appropriate in the Southern District of Florida pursuant to 5 U.S.C. § 552 (a)(4)(B).

10. Plaintiff's original request under FOIA was for three specific items.

11. Plaintff will address each requested item in a separate count. As follows:

COUNT I

12. The NSA improperly denied Plaintiff's request directed towards transmissions and recordings of the U.S.S. Liberty because such information is not exempt from disclosure pursuant to statute nor is it properly classified pursuant to any Executive order.

13. The mission of the USS Liberty on June 8, 1967 was "a SIGINT collection mission" as admitted by Defendant in its letter of June 14, 2001 and further confirmed by letter of the Defendant to Plaintiff dated August 23, 2001 in FOIA case: 40642. A copy of that letter is attached as Exhibit "E".

14. The SIGINT collection of radar transmissions and some voice transmissions, although overt collection, may be (or have been) appropriate for classification because of the value in identifying radar capability and fire control or surface to air (STA) missile control for the protection of US forces, the Plaintiff does not seek release of any such data.

Foreign Radio Broadcast Material

15. The USS Liberty was also engaged in collection of foreign voice radio broadcasts for delivery to, translation by, and publication by the United States Foreign Broadcast Information Service (FBIS) which material is not classified and is made available to the general public upon processing by FBIS.

16. The Plaintiff believes that no transmissions of FBIS material were recorded by the NSA compartment on the USS Liberty on June 8, 1967 and Plaintiff has requested that the NSA confirm this belief. If the NSA confirms that no such recordings exist, Plaintiff's request with respect to the U.S.S. Liberty will be satisfied.

17. If, however, the U.S.S. Liberty recorded any transmissions of FBIS material, transmitted same to FBIS, and then released them to the public, then the NSA should disclose same to Plaintiff because there is no impact on national security, no disclosure of sources or methods of collection (since NSA has admitted publicly that the ship was collecting electronic transmission which include both radio and radar) and Plaintiff is not seeking release of information about the NSA equipment used in receiving and recording transmissions. Moreover, there is no issue of identification of persons involved in covert activity since such activity would have been overt and the entire list of the crew of the USS Liberty, including the NSA civilians on board, has already been released by both the Defense Department and the State Department and currently is in the public domain.

18. In view of the foregoing there is no exemption from release or national security reason to deny release of information about FBIS material and NSA should either identify and release such information if it exists or confirm that there was no recording of FBIS material by the ship on June 8, 1967.

Plain Language Voice Transmissions

19. In addition to the clearly unclassified FBIS material and the potentially appropriately classified radar and ECM transmissions are the plain language voice transmissions of Israeli military pilots and Israeli ground controllers, transmitted in the open by radio which could be heard and recorded by anyone with a radio receiver and a tape recorder.

20. It is admitted that in 1967, the use of a scanner to locate such transmissions may have been state of the art technology but today scanner technology is commonplace and well known. Anyone may buy a scanner for police, fire aircraft, maritime or ordinary radio transmissions at Radio Shack or other electronics stores. In fact there are very few mid-priced and above automobile radios sold in the United Stites today that do not have both seek and scan features equal to or better than the scanners NSA had available in 1967. Plaintiff is not seeking disclosure of, or technical information on, any NSA receivers, scanners or recorders, only the contents of and transmissions that were located, received by radio receiver and recorded by recorder on June 8, 1967.

21. On information and belief, Plaintiff alleges no such transmissions were located, received and recorded by the USS Liberty on June 8, 1967 and, in view of the nature and content of the material requested, that no sources or methods of collection or identity of persons would be compromised by release of such material or confirmation by NSA that no such material was recorded by the USS Liberty on June 8, 1967.

COUNT II

22. The NSA improperly denied Plaintiff's request directed towards transmissions and recordings of the U.S.S. Amberjack because such information is not exempt from disclosure pursuant to statute nor is it properly classified pursuant to any Executive order.

23. The Amberiack was not in the vicinity of the coast of Sinai off El Arish on June 8, 1967 and her commanding officer at the time has publicly stated Amberjack was not there and thus heard, saw and recorded nothing between 1100 Z and 1300 Z on June 8, 1967. This is further confirmed by the official deck log of the USS Amberjack for the period 1-9 June, 1967, released under FOIA, a copy of which is attached as Exhibit "F". The log places the Amberjack at Souda Bay Harbor at 1517 on June 9, 1967, a position Amberjack could not have reached, even if sailing at maximum speed, if Amberjack was at the Liberty's position 24 hours earlier.

24. This can be confirmed through the testimony of the chief of naval operations, staff officer at the time in charge of all submarine operations in the Mediterranean [corrected to: commander of submarine flotilla eight], Admiral M.G. Bayne, USN (RET), which has already been made public in an oral history given by the Admiral.

25. Confirming that the NSA has no tapes, recordings, or other electronic or paper records of surveillance of VHF/UHF or high frequency voice transmissions made or intercepted on June 8, 1967 between 1100 Z (1300 Sinai time) andd 1300 Z (1500 Sinai time) at or near El Arish would in no way effect national security nor would it compromise sources or methods of collection or identity of persons entitled to exemption of disclosure.

COUNT III

26. The NSA improperly denied Plaintiff's request directed towards transmissions and recordings of the EC-121 aircraft because such information is not exempt from disclosure pursuant to statute nor is it properly classified pursuant to any Executive order.

27. The NSA has admitted in its recently partially declassified document, United States Cryptologic History - "Attack on a SIGINT Collector, the U.S.S. Liberty (S-CCO)" of 1981 and referred to as National Archives Document Number SRH-256, that on June 8, 1967 it operated EC-121 aircraft from Athens, Greece which aircraft flew in a pattern which placed them at or about 60 nautical miles from the scene of the attack on the USS Liberty at or about 1400 Sinai time on June 8, 1967. A copy of the pages of the NSA 1981 Report are attached as Exhibit "G."

28. The Navy EC-121 aircraft that flew the mission on June 8, 1967 was Bureau #135757 and its navigator was Charles B. Tiffany. It was on an IQS mission and the flight lasted 8.4 hours.

29. The NSA operated a SIGINT surveillance compartment aboard said aircraft which was commonly referred to as the tent.

30. The senior enlisted navy person in charge of the tent was Chief Petty Officer Marvin E. Nowicki.

31. Chief Nowicki was a Hebrew linguist, referred to in 1967 as a "special Arabic" linguist. 32. A second Hebrew linguist (who does not wish his name disclosed but whose name is known to the NSA) was monitoring Hebrew language voice transmissions in the "tent" on June 8, 1967 and he alerted Chief Nowicki to certain transmissions he found of interest. Both Chief Nowicki and the second Hebrew linguist heard the transmissions and recorded same.

33. Thereafter Chief Nowicki and the second Hebrew linguist listened to the tapes on the ground at Athens airport.

34. The tapes were communications of Israeli pilots and ground controllers during and after the attack on the USS Liberty at or after 1400 Sinai time on June 8, 1967.

35. The tapes were transmitted to NSA headquarters in Fort Meade, MD where they were studied, transcribed and translated by a third Hebrew linguist who became well versed in their content and who briefed Marshal Carter, the then director of the NSA, on the contents of the tapes.

36. CPO Marvin E. Nowicki remained in the Navy, advanced to commissioned officer status and worked at the NSA on the Israeli and Near-East desks from 1968 to 1971 in "G" group under Frank Raven including work in G643.

37. CPO Marvin E. Nowicki, later Lieutenant Marvin E. Nowicki and now Dr. Marvin E. Nowicki has publically confirmed the foregoing in an email letter to one James Bamford, a copy of which is attached as Exhibit "H".

38. The tapes were last seen by Dr. Nowicki at NSA headquarters in the spaces of G643/the Israeli military section of NSA.

39. The third Hebrew linguist (who also does not want his name disclosed but who is known to NSA) has confirmed to Plaintiff the existence of the tapes at NSA, Fort Meade, MD and his examination and translation of the tapes in the late 1960's.

40. The collection of the materials on these tapes was overt intelligence collection. The platform used for collection, EC-121-135757 was in international airspace. The transmissions were broadcast in the open and were not encrypted. The equipment used to receive and record the transmissions was a radio receiver and a tape recorder.

41. The transmissions may have been located by use of a frequency scanner but Plaintiff does not seek any disclosure of data relating to equipment used, i.e. scanner, radio receiver or recorder.

42. Plaintiff seeks only the opportunity to obtain the tapes or copies thereof, transcriptions of the tapes and translations of the transcriptions.

43. Release or disclosure of this information will not compromise the source or methods of collection (much of which is already disclosed in the 1981 NSA Report) nor does Plaintiff seek disclosure of the identity of any involved persons.

44. More than 35 years have gone by since the collection of this material which makes this material ripe for release unless the NSA is able to carry its burden of proof that there is an overriding national security interest which should prevent release at this time.

45. The mere conclusory statement by the NSA that the requested material is exempt from disclosure is insufficient to establish exemptions and the NSA should be directed to furnish detailed justification for exemption claims including itemized and indexed documents in such a manner as to correlate justifications for refusal to disclose together with actual portions of documents claimed to be exempt, so that the trial judge or a special master appointed by the trial judge might examine the documents and evaluate the agency's contentions of exemption. 5 U.S.C. §§ 522(a)(3), (b)(1, 2, 5, 6); 18 U.S.C. 3500. A Vaughn Index. See Vaughn v. Rosen 484 F2d. 820, 157 U.S. App DC 340.

46. An entire document is not exempt merely because an isolated portion should not be disclosed.

47. The government of Israel through the Israel Air Force also recorded the same transmissions which are the subject of this suit for disclosure.

48. The Israel Air Force released transcripts and translations of the transmissions to Thames TV in 1987.

49. The Israel Air Force also released access to the tapes, transcriptions and tapes to Plaintiff in 1991 and in 2001.

50. Plaintiff has published annotated translations of the tapes in his book "The Liberty Incident" as Appendix 2.

51. Prior to publication of Appendix 2, Plaintiff communicated with Dr. Nowicki (NSA Hebrew linguist #1) and NSA Hebrew linguist #3 about the contents of the tapes. Their descriptions of the contents of the tapes were essentially the same as the contents of the Israeli Air Force tapes which they had neither previously seen nor heard.

52. The contents of the tapes are disclosed and in the public domain. Release of the NSA tapes which coincide with the Israel Air Force tapes (Appendix 2) would not disclose any new or unknown material.

Conclusion

53. The NSA has improperly denied Plaintiff's request with respect to the U.S.S. Liberty, the U.S.S. Amberjack, and the EC-121 aircraft because it claims "the information is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(1) which protects properly classified information," "the information is also exempt pursuant to 5 U.S.C. § 552(b)(3), which permits withholding of matters specifically exempted from disclosure by statute," and because it claims "such information is a properly classified matter under Executive Order 12958." See Exhibit D, attached hereto. However, the NSA is merely hiding behind all of these excuses as a simple, but legally improper, basis to deny Plaintiff's requests.

54. Although a review of the allegedly applicable statutes and Executive Order quickly reveals that the requested information is not specifically exempt from disclosure, Plaintiff need not demonstrate that the NSA's excuses are improper. Rather, the NSA has the burden of establishing that they are indeed applicable -- something the NSA cannot do. See 5 U.S.C. § 552(a)(4)(B) (burden is on the agency to sustain its action); see also Currie v. I.R.S., 704 F.2d 523 (11th Cir. 1983) (holding there is a presumption of disclosure unless, after a de novo review, the agency has carried its burden of proving the withheld materials are within one of the exemptions); Moorefield v. U.S. Secret Service, 611 F.2d 1021 (5th Cir. 1980), cert. denied, 449 U.S. 909 (holding there is a presumption of disclosure and, unless government proves it falls within a specific statutory exemption, materials must be made available on demand). Therefore, the Plaintiff has a statutory right to the information he has requested and there is no legal basis for the NSA's refusal to disclose the information to Plaintiff.

WHEREFORE, Plaintiff respectfully requests that the Court grant the relief requested herein and,

(i) order that the decision of the NSA dated August 20, 2002 as to collection by the USS Liberty GTR-5-NSA Compartment of Detachment was improper and order the NSA to confirm the existence or non-existence of any information related thereto and, if it exists, order the release to the Plaintiff under FOIA of tapes, recordings, or other electronic or paper records of surveillance of VHF/UHF or high frequency voice radio transmissions made or intercepted on June 8, 1967, between 110 Z (1300 Sinai time) and 1300 Z (1500 Sinai time) at or near El Arish on the Sinai Peninsula, Eastern Mediterranean but not releasing identity of any person or specific data as to equipment used in collection and not releasing anything related to SIGINT collections of radar or ECM transmissions which may have been collected;

(ii) order that the decision of the NSA dated August 20, 2002, as to collection by the USS in Amberjack-SS-552 NSAA Compartment of Detachment was improper and order the NSA to confirm the existence or nonexistence of any information related thereto and, if it exists, order the release to the Plaintiff of any such tapes, recordings, or other electronic or paper records of of VHF/UHF or high frequencncy voice radio transmissions made or intercepted on June 8, 1967, between 1100 Z (1300 Sinai time) and 1300 Z (1500 Sinai time) at or near El Arish on the Sinai Peninsula, Eastern Mediterranean, but not releasing identity of any person or specific data as to equipment used in collection and not releasing anything related to SIGINT collections of radar or ECM transmissions which may have been collected;

(iii) order that the decision of the NSA dated August 20, 2002 as to collection by any EC-121 aircraft (probably assigned to the VQ-2 detachment stationed at Athens, Greece, under control of FAIRECONRON TWO) was improper and order the NSA to confirm the existence or non-existence of any information related thereto and, if it exists, order the release to the Plaintiff of any such tapes, recordings, or other electronic or paper records of surveillance of VHF/UHF or high frequency voice radio transmissions made or intercepted on June 8, 1967, between 1100 Z (1300 Sinai time) and 1300 Z (1500 Sinai time) at or near El Arish on the Sinai Peninsula, Eastern Mediterranean but not releasing identity of any person or specific data as to any equipment used in collection and not releasing anything related to SIGINT collections of radar or ECM transmissions which may have been collected at that time;

(iv) find that Plaintiff has substantially prevailed in this action;

(v) award Plaintiff its fees and costs pursuant to 5 U.S.C. § 552 (a)(4)(E); and

(vi) grant such other relief as this Court determines to be proper and just under the circumstances.

[Exhibits A-G not included here]

[Exhibit H]

March 3, 2000

Mr. James Bamforth [sic]
Washington, DC

Dear Jim:

As a follow-up to our e-mail and telephone exchanges, I am enclosing sensitive information about U.S. intelligence collection techniques that I engaged in during a career in the U.S. Navy spanning over 20 years. Like you, I am interested in preserving certain historical events surrounding SIGINT collection. I believe it is important that future generations understand and appreciate the efforts of the Cold War warriors.

In this correspondence, I am concentrating on a single event that involved the USS Liberty in June 1967. As you know, Jim Ennes and members of the Liberty crew are on record stating the ship was deliberately attacked by the Israelis. I think otherwise. I have first-hand information, which I am sharing with you. I was present on that day, along with members of an aircrew in a COMFAIRAIRRECONRON TWO (VQ-2) EC 121M aircraft flying some 15,000 feet above the incident. As I recall, we recorded most, if not all, of the attack. Further, our intercepts, never before made public, showed the attack to be an accident on the part of the Israelis.

To support my claim, I am forwarding four enclosures of information. My story is over 30 years old but there are certain events that are imbedded in my memory, including a scary night flight into the battle zone and the attack on the Liberty. Enclosure (1) begins with a narrative entitled, "Assault on the Liberty: The untold story from SIGINT." Enclosure (2) provides a postscript to the attack in the years that followed. Enclosure (3) gives my views of additional evidence of a mistaken attack by the Israelis, contradicting Jim Ennes in his book. Enclosure (4) discusses Ennes' cover-up conundrum, asks who was ultimately responsible, and why the presence of our VQ mission was never revealed.

In addition, I am enclosing personal information about my 24-year career in the US Navy and Naval Security Group. I am doing this for the purpose of helping you see how I might assist you with other aspects of your historical account of SIGINT. You may, for example, be interested in stories how we hunted Soviet TU95 Bears in the Atlantic and searched for SA-2 sites in southern Algeria during flights into the Sahara. A chronology of my duty stations and professional experience is found in Enclosure (5).

Finally, on a cautionary note I would appreciate it if you would cull any information that crosses the bar of national security, in addition to the names of colleagues cited herein. I do not have permission to use their names. If you have any questions or need clarification, please do not hesitate to contact me. Thank you and good luck with vour book.

Enclosures (1-5)
Enclosure (1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

[Filed:] July 3, 2003 

         

A. JAY CRISTOL
                    
     Plaintiff,
										Case No. 03-20123
v. 

NATIONAL SECURITY AGENCY

     Defendant.
___________________________________

ANSWER TO PLAINTIFF'S COMPLAINT

The National Security Agency (NSA), by and through its attorneys, answers Plaintiff's complaint [Docket #1] as follows:

First Defense

The NSA has conducted a search of its records and found no records responsive to Plaintiff's first and second requests.

Second Defense

On July 2, 2003, the NSA declassified, and released to Plaintiff via overnight courier, all of the actual recordings and English translations (including summaries of those translations) held by the NSA that relate to the USS Liberty incident.

Third Defense

Answering specifically the numbered paragraphs of Plaintiff's complaint and using the same numbering, Defendant answers as follows:

1. Defendant admits the first sentence of Paragraph 1. The second sentence is denied, except to admit that Plaintiff filed a Freedom of Information Act (FOIA) request to the NSA. The third sentence states a legal conclusion and plea for relief, to which no response is required.

2. Admitted, except that the last sentence of paragraph 2 is denied.

3. Admitted.

4. Denied, except to admit that the NSA sent a letter dated June 14, 2001, to which the Court is respectfully referred for a full and accurate statement of its contents.

5. Admitted.

6. Denied, except to admit that the NSA denied Plaintiff's appeal by letter dated August 20, 2002, to which the Court is respectfully referred for a full and accurate statement of its contents.

7-11. Admitted.

12. Denied.

13. Admitted.

14. Defendant can neither confirm nor deny under the FOIA the allegations contained in Paragraph 14.

15. Defendant is without sufficient information to either confirm or deny the allegations of Paragraph 15.

16. Paragraph 16 characterizes Plaintiff's beliefs and complaint, to which no response is required.

17. Paragraph 17 advances legal argument, to which no response is necessary. To the extent that any response is required, Paragraph 17 is denied.

18. Denied.

19-20. Defendant can neither confim nor deny under the FOIA the allegations contained in Paragraphs 19 and 20.

21. Defendant admits that the USS Liberty did not locate, receive, or record on June 8, 1967, any transmissions to which Plaintiff refers. The remainder of paragraph 21 is denied.

22. Denied.

23-24. Defendant is without sufficient information to either confirm or deny the allegations of Paragraphs 23 and 24.

25. Defendant admits that the NSA has no tapes, recordings, or other electronic or paper records of surveillance of VHF/UHF or high frequency voice transmissions made or intercepted on June 8, 1967 between 1100Z and 1300Z and collected by the USS Amberjack.

26. Denied.

27. Admitted.

28-33. Defendant is without sufficient information to either confirm or deny the allegations of Paragraphs 28 through 33.

34. Defendant can neither confirm nor deny under the FOIA the allegations contained in Paragraph 34.

35-41. Defendant is without sufficient information to either confirm or deny the allegations of Paragraphs 35 through 41.

42. Admitted.

43-45. Denied.

46. Paragraph 46 presents a legal argument, to which no response is necessary. To the extent any response is necessary, admitted.

47-52. Defendant is without sufficient information to either confirm or deny the allegations of Paragraphs 47 through 52.

53. Denied.

54. Paragraph 54 presents a legal argument, to which no response is necessary. To the extent any response is necessary, denied.

The remainder of Plaintiff's complaint presents prayers for relief, to which no response is necessary. To the extent any answer is required, Defendant specifically denies that Plaintiff is entitled to the relief requested, or to any relief at all. Defendant specifically denies each allegation of Plaintiff's complaint not otherwise answered.

Of Counsel:

ARIANE CERLENKO
Assistant General Counsel
(Civil Litigation and Administrative Law)
National Security Agency

Dated: July 3, 2003

HTML by FAS