Plaintiff's Opposition to Defendant's Motion to Dismiss or for Summary Judg

05/21/1999

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE JAMES MADISON PROJECT

Plaintiff

v. Civil Action No. 98-2737 (TPJ)
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION

Defendant

OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
OR FOR SUMMARY JUDGMENT AND PLAINTIFF'S

CROSS-MOTION TO STRIKE THE DECLARATION OF TERESA WILCOX

This is an action for the disclosure of documents brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (a), et seq., as amended, by the plaintiff, The James Madison Project ("JMP"), against the defendant, National Archives and Records Administration ("NARA"). The documents sought are six of the oldest classified records in the control of the United States Government, each of which has been preserved for historical posterity by NARA, but hidden from the scrutiny of the American public for over eighty years. The time has long since passed when these documents should have been exposed to the light of day, and their continuing classification serves as a stain on the reputation of the United States as a country which touts itself as a model on openness.

The information contained in these octogenarian records pertains to the ancient art of creating and detecting "invisible" or "secret ink"; a fascinating but arcane science which

today is more often the subject of comic book and cereal box advertising than spycraft.

Nevertheless, this nation's best-known intelligence service, the Central Intelligence Agency ("CIA"), has deemed the information contained in these records to be of such importance that disclosure of it is expected to damage the national security of the United States by somehow increasing the vulnerability of the CIA's covert communications systems.

It is difficult to discern which is a more frightening scenario: that the CIA will not authorize the release of these records because it still thinks of them as scientifically important and protectible, or, that the Agency is actually relying on eighty year old scientific formulas for making and detecting secret ink which are familiar to schoolchildren around the world for decades. In its most narrow sense, this case will reveal that the science of invisible ink is so basic and the information within the records so antiquated, that the CIA's refusal to release these records is more comical than serious. It becomes serious, however, when the broad implications that arise from this case are revealed -- the dangers arising from excessive classification.

Admittedly, the underlying motivation for JMP's bringing of this case is not to add to the world's considerable knowledge of secret ink. Rather, it has been brought to shed light upon the U.S. Government's continuing misuse of the classification system, and to expose the lengths to which federal agencies, such as the CIA, are willing to go in order to maintain their alleged rights to arbitrarily and capriciously (and one could add "embarrassingly") withhold records classified as "national security secrets."


BACKGROUND

The James Madison Project

The JMP is a Washington, D.C.-based non-profit organization that was created in 1998, for the primary purpose of educating the public on issues relating to intelligence gathering and operations, secrecy policies, national security and government wrongdoing. Much of the work undertaken by JMP involves litigation under disclosure acts such as FOIA and the Privacy Act of 1974. The principles underlying the objectives of the JMP are derived from the 1997 findings of The Commission on Protecting and Reducing Government Secrecy, which are more fully discussed below.

In order to implement its objective to reduce secrecy, the JMP, by letter dated October 5, 1998, submitted to NARA a FOIA request which sought disclosure of "the oldest classified document in the possession of the National Archives." What that document might actually detail was a complete mystery; that it would be still classified after nearly a century was astounding.

By letter dated October 21, 1998, NARA informed JMP that its request had been assigned reference number NW99-028. NARA further identified the requested document as a 1917 memorandum from Heingleman to Marlenck, Project 750041, RG 038, Entry 78, Box 02, Tab 05. Additionally, NARA identified the next five oldest classified documents, all of which originated in or around 1918 and related to the same topic. These documents were identified as: (1) Pamphlet on Invisible Photography & writing, Synthetic Ink, Project 750041, RG 038, Entry 78, Box 05, Tab 01; (2) Report, "Detection of Secret Ink", Project 750041, RG 038, Entry 78, Box 02, Tab 04; (3) Report, "German Secret Ink Formula", Project 750041, RG 038, Entry 78, Box 02, Tab 02; (4) Report, "German Secret Ink Formula", Project 750041, RG 038, Entry 78, Box 02, Tab 01; and (5) Report, "Secret Inks", Project 750041, RG 038, Entry 78, Box 02, Tab 03.

Given that the first six oldest documents in NARA's possession all pertained to the same topic, JMP revised its FOIA request by letter dated October 28, 1998, and requested the declassification of the entire group. While it was known that the declassification authority for the documents belonged to a third-agency - it was known that the records were among the files of the Office of the Chief of Naval Operations - NARA officials were not permitted to disclose the agency's identity. It was not until after this litigation was filed on November 9, 1998, that the "controlling" agency was revealed to be the CIA.

It should be made perfectly clear at the outset that JMP has no interest in revealing legitimate intelligence sources or methods that are currently utilized to protect our national security. To the contrary, there is no question that government secrecy is necessary and proper under certain circumstances, and it is JMP's view that the CIA is an essential and well-equipped component of the national security structure of the United States.

The circumstances presented in this litigation cry out for recognition by this Court that, metaphorically, the Emperor has no clothes. "National Security" is an important concept within which is embodied the principle that our nation must be protected from those who would do it and its citizens proscribed harms. The concept should not, and cannot be allowed to be turned into a catch-phrase which excuses any and all forms of illegitimate secrecy in the face of both law and common sense. The attempted withholding of 80-year old documents, some of which were apparently created by foreign nationals, and all of which detail antiquated and readily available scientific information is clearly a case of the CIA utilizing a transparent cloak of so-called "national security."

The Excessiveness Of Secrecy

Senator Daniel Patrick Moynihan, long regarded as a leading scholar on issues of secrecy, recently served as the distinguished chair of The Commission on Protecting and Reducing Government Secrecy. The Commission's 1997 Report is widely regarded as the most important analysis of U.S. Government classification and secrecy trends published in the last four decades, and it was clear in its condemnation of secrecy for secrecy's sake. The Commission warned of the specific dangers to democracy presented by illegitimate classification:

Report of The Commission on Protection on Protecting and Reducing Government Secrecy xxi (GPO, 1997)("Commission Report")(emphasis added).

The Commission concluded that "[t]he best way to ensure that secrecy is respected, and that the most important secrets remain secret, is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall." Id. The Commission enumerated the advantages of an American democratic system that permits the withholding of information only if its publication would truly cause harm to the nation.

Id. The current Executive Order 12,958 (April 17, 1995), 3 C.F.R. 333 (1996), that governs the classification of information equally supports this premise. "Protecting information critical to our Nation's security remains a priority. In recent years, however, dramatic changes have altered, although not eliminated, the national security threats that we confront. These changes provide a greater opportunity to emphasize our commitment to open Government." Id.

Despite these aphorisms, over the years federal agencies such as the CIA have consistently ignored the warnings against overclassification voiced by Justice Stewart and others, at times taking secrecy into the realm of tragic comedy. By way of illustration, some of the more humorous examples of unwarranted excessive secrecy exercised by the past several Administrations have included:

It would not be a far stretch to add the millennial efforts of the CIA to prevent the publication of "scientific secrets" from 1917-18 regarding invisible ink. Indeed, the CIA has a history of refusing to release historically important records. Most recently it was sued over its withholding of documents pertaining to the 1953 coup in Iran. See Associated Press, Group Sues CIA Over Data Release, May 13, 1999.

That this case pertains to documents dating back to 1917 is actually quite ironic. For as Senator Moynihan noted in his forward to the Commission's Report, it was also that year when the Espionage Act of 1917 created the modern-day government secrecy system. Since the creation of these six documents in question, "a vast system of secrecy developed within the American Government. So much that it has been termed a culture of secrecy." Commission Report, at xxxi.

This case is about bringing an end to the excessiveness of the secrecy culture, and it begins with the disclosure of these six documents.

Invisible Or Secret Ink

The vast amount of material already available to the public on the subject of invisible ink and its use by the U.S. intelligence community illustrates the ludicrous nature of the CIA's position. A brief history is quite instructive on this point.

The use of invisible ink as a technique of communication is by no means new. Indeed it is ancient, dating back nearly two thousand years. In his 1967 magnum opus on the subject of cryptology entitled The Codebreakers, author David Kahn recounted that "Pliny the Elder, in his Natural History, written in the first century A.D., told how the "milk" of the tithymallus plant could be used as a secret ink. Ovid referred to secret ink in his Art of Love. A Greek military scientist, Philo of Byzantium, described the use of a kind of ink made from gall nuts (gallotannic acid), which could be made visible by a solution of what is now copper sulfate." DAVID KAHN, THE CODEBREAKERS: THE STORY OF SECRET WRITING 511 (The McMillan Co. 1967)("Codebreakers").

The use of invisible ink as a tool can also be found in the Subh al-a sha, a 14-volume Egyptian treatise on cryptology that was written in 1412. Codebreakers, at 95. The West's first modern written reference to secret ink appeared in 1466-67, in an essay penned by the Father of Western Cryptology, Leon Battista Alberti. Id. at 125, 127. Recipes for invisible ink began to find their way into popular 16th and 17th century books detailing scientific oddities. Giovanni Battista Porta, and those of his Italian colleagues who came to form the Otiosi (Men of Leisure), published various incantations between 1586 and 1609 of Magia naturalis, a "study of oddities and scientific curiosa." Codebreakers, at 137. Book XVI of his twenty book series contained "numerous recipes for secret ink and for such tricks as writing invisibly on an egg and on human skin so that messengers may be sent, who shall neither know that they carry letters nor can they be found about them." Id. at 138.

Invisible inks are typically divided into two categories: organic fluids and sympathetic chemicals. "The former, such as urine, milk, vinegar, and fruit juices, can be charred into visibility by gentle heating. ... Sympathetic inks are solutions of chemicals that are colorless when dry but that react to form a visible compound when treated with another chemical, called the reagent." Id. at 522-23. "The trick in concocting a good secret ink is to find a substance that will react with the fewest possible chemicals -- only one, if possible, thus resulting in what is called a highly "specific ink." Id. at 523.

During the Revolutionary War both the Americans and British found uses for transmitting messages by invisible ink. Two successful colonial spies, Samuel Woodhull and Robert Townsend, provided much information - primarily through cryptology - directly to George Washington himself. Washington, as the U.S.'s first spymaster, was a firm believer in securing intelligence. NATHAN MILLER, SPYING FOR AMERICA: THE HIDDEN HISTORY OF U.S. INTELLIGENCE 6 (Dell Publishing: 1989). Under the pseudonyms CULPER SR. and CULPER JR., respectively, Woodull and Townsend used invisible ink extensively in their secret missives. Washington obtained the ink from Sir James Jay, the brother of John Jay, the future first Chief Justice of the U.S. Supreme Court. In one letter to Woodull, Washington wrote in July 1779:

Id. at 179.

Although the U.S. successfully utilized invisible inks during the early years of our existence, it was more often used against us. The German government made particular use of invisible inks during both World War I and II. In June 1917, in order to counter German espionage, the first specialized SIGINT (signal intelligence) agency was created by the United States. Lieutenant (later Major) Herbert O. Yardley, then 28 years old, was placed in charge of the "new military intelligence code and cipher unit, MI-8. Over the next year MI-8 compiled new code and cipher systems for army use, translated foreign language messages in various forms of shorthand passed on by the censors, prepared chemical preparations to reveal messages written in secret inks, and deciphered intercepted communications that employed known codes and ciphers." CHRISTOPHER ANDREW, FOR THE PRESIDENT'S EYES ONLY: SECRET INTELLIGENCE AND THE AMERICAN PRESIDENCY FROM WASHINGTON TO BUSH 54 (Harper Collins: 1995)("President's Eyes").

After confiscating a blank piece of paper from a suspected German collaborator which, when heat was applied, revealed a secret message, MI-8 established a secret-ink subsection "whose expert chemists could detect writing in an invisible ink disguised as a perfume with an actual odor and with only one part in 10,000 of solid matter." Codebreakers, at 353. The Germans were masterful experts in the use of invisible inks and would blend liquids into scarves, socks and other garments. Once dipped in water, the garment shed its special contents and was ready for use. Id.

While the Germans were initially successful, British scientists eventually broke most of their techniques and in turn taught their American counterparts much of what they knew.

Id. In other words, the documents at issue in this litigation detail German secret ink formulas that have already been exposed, and are widely available to any member of the public who chooses to visit a local bookstore or conduct searches on the Internet.

Following the end of the Great War, Yardley convinced the State and War Departments that the United States needed to maintain some form of signal intelligence organization. Thus the American Black Chamber, a top secret office known to few and jointly funded by the two Departments, was born. For twelve years it functioned covertly, attacking the codes of foreign powers. It was finally disbanded by President Hoover's Secretary of State Henry Stimson in 1929. See id. at 360; President's Eyes, at 72.

Yardley, disgusted by the shutdown of his unit, went on to publish one of the first tell-all spy spooks detailing his experiences as the leading American cryptologist. Yardley's book, The American Black Chamber, published in 1931, became a best seller and is still widely sought-after today. Of enormous significance to this case, Chapter three of Yardley's book recounted his experiences with secret inks. In it he revealed various techniques for using and revealing invisible ink, as well as examples of spies who got caught sending messages. Id. at 55-76. The formulas he revealed, exposed primarily through work conducted by the British, are undoubtedly the very ones contained in the documents that the CIA refuses to disclose.

Notwithstanding the initial success of the German formulas in the early days of World War I, these formulas were antiquated even before we became embroiled in World War II. In December 1940, a member of the British censorship team which was monitoring German communications became convinced that invisible ink was being used to pass messages. British chemists applied an iodine-vapor test developed twenty-years earlier, during the first World War, and successfully revealed the Germans' plans. Codebreakers, at 514.

The apparatus for producing this type of test became essential equipment in every censorship office.

SAMUEL RUBIN, THE SECRET SCIENCE OF COVERT INKS 39 (Loompanics Unlimited: 1987)("Secret Science").

The use of secret inks - both for espionage and for fun - has been documented throughout the world. Besides the Egyptians, Greeks, Italians, Germans, British, Americans, it is also known that the Russians, Israelis, Syrians, Chinese, Turks,

Austrians, French, Australians, and even the PLO have used some version of invisible ink.

In fact, invisible ink formulas are everywhere. Most recently, the fall of the Soviet Union and the growth of the Internet have contributed immensely to the dissemination of invisible ink formulas. Many of these are undoubtedly far more sophisticated than the formulas contained in the documents which the CIA believes will endanger its secret writing capabilities, and imperil our national security. Indeed, for just $59.95, you can own your very own KGB Disappearing Ink Pen. See Exhibit "1".

For a mere $14.95, plus shipping and handling, more than 130 formulas and recipes for invisible ink are available in Samuel Rubin's 1987 book The Secret Science of Covert Inks. Still in print today, this work is the most comprehensive "reference volume for those desiring ready access to information about the covert inks used by criminals, intelligence agencies and others." Id. at 1. Eighteen chapters detail formulas for making ammonia inks, reagent secret inks, ultraviolet inks, vapor inks, poison inks and, of course, magic trick inks. See Exhibit "2". Fifty years ago, concurrent with the creation of the CIA, it was noted that "[i]t would be a simple matter to list the formulas for making invisible inks and other materials for secret writing." Herbert Zim, CODES AND SECRET WRITING 114 (William Morrow, 1948). Thus, it should come as no surprise that after collecting invisible ink materials for over sixty years, Rubin published twenty-eight pages of identified chemicals that can be utilized to both create and reveal invisible ink message. See Exhibit "4". Indeed, many books have published formulas. See Exhibit "5".

Some examples of invisible ink formulas, several of which are most likely derived from the very formulas which the CIA is ironically trying to protect from the public include:

Secret Science, at 7. Id.

Coal-Black Secret Reagent Ink

Id. at 15.

Australian Secret Vapor Ink

Id. at 42.

Some of these formulas have been known for hundreds of years. Many likely are derived from one another. Such is the advancement of science. But all are available publicly. One hundred and forty years ago, careful lovers might have used this secret ink formula to hide their true affections:

Secret Ink For Young Ladies And Gents

YOUNG'S DEMONSTRATIVE TRANSLATION OF SCIENTIFIC SECRETS; OR A COLLECTION OF ABOVE 500 USEFUL RECEIPTS ON A VARIETY OF SUBJECTS (Rowsell & Ellis, 1861).

The secrets of "secret ink" are no more. Any child knows of it and, at some point in their childhood, uses it. As adults, we need merely conduct some minimal research and will soon find hundreds of recipes for different invisible ink formulas. With the advent of the Internet, and the world-wide dissemination of formulas, the science of secret ink is no longer a mystery; certainly not formulas from 82 years ago.

ARGUMENT

The Supreme Court has held that "disclosure, not secrecy, is the dominant objective"

of the FOIA. Department of Air Force v. Rose, 425 U.S. 352, 361 (1976). The FOIA policies currently in place continue to stress this principle:

President's Memorandum for Heads of Department and Agencies regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999 (Oct. 4, 1993).

Yet, in the instant case, the CIA seeks to misuse the FOIA as a protective shield for the government. Despite the Agency's reliance in this case on the most difficult of FOIA exemptions - Exemption One (the national security exemption) - the burden of obtaining summary judgment remains the same no matter the asserted exemption.

In FOIA cases, the court may grant summary judgment only if it is satisfied that the "moving party has proven that no substantial and material facts are in dispute and that it is entitled to judgment as a matter of law." Schlesinger v .CIA, 591 F. Supp. 60, 64 (D.D.C. 1984), citing McGehee v. CIA, 697 F.2d 1095, 1101 (D.C.Cir. 1983). Furthermore, the facts must be viewed in a light "most favorable to the requester ...." Steinberg v. Dept of Justice, 23 F.3d 548, 551 (D.C.Cir. 1994)(citation omitted).

In determining whether an agency has properly withheld information pursuant to Exemption One, the district court must "determine the matter de novo," 5. U.S.C. § 552 (a)(4)(B)(1987), and the burden is on the government to sustain its claim for exemption. See Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir. 1984). In support of its summary judgment motion, an agency is entitled to present detailed affidavits to the Court which should be accorded "substantial weight". S.Rep. No. 1200, 93d Cong., 2nd Sess. 12 (1974), U.S.Code Cong. & Admin.News 1974, at 6290. However, a requester's arguments should also be accorded significant weight. See Howard Roffman, "Freedom of Information: Judicial Review of Executive Security Classifications", 28 Univ. Fla. L.Rev. 551, 558-559 (1976)("The legislative history indicates that it was Congress' intent that the evidence of both parties be accorded equal weight, commensurate with the degree of expertise, credibility and persuasiveness underlying it").

Furthermore, the district court must insist that such affidavits "afford a relatively detailed analysis [of the material withheld] in manageable segments. [C]onclusory and generalized allegations of exemptions" are not acceptable." Goldberg v. U.S. Department of State, 818 F.2d 71, 78 (D.C.Cir. 1987)(citations omitted), cert. denied,

485 U.S. 904 (1988). The standard to be applied in reviewing the agency's affidavits is well-settled:

Abbotts v. Nuclear Regulatory Commission, 766 F.2d 604, 606 (D.C.Cir. 1985)(citing Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir. 1981).

The CIA's declaration is insufficient to permit NARA's escape from this case.

I. THE DECLARATION OF TERESA WILCOX DOES NOT COMPLY WITH THE REQUIREMENTS OF RULE 56 AND SHOULD BE STRICKEN IN WHOLE OR IN PART

Rule 56(e) of the Federal Rules of Civil Procedure requires that "... affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (emphasis added). In support of its Motion, NARA has provided the Declaration of Teresa Wilcox ("Wilcox Decl."), the Information Review Officer ("IRO") for the CIA's Directorate of Science and Technology ("DS&T"). Wilcox's declaration fails to meet this threshold test and must, therefore, be stricken in whole or in part.

As the IRO, Wilcox explains that she is responsible for "the protection of information originated by the DS&T, or otherwise implicating DS&T interests" and for "ensuring that any determination as to the release or withholding of such information are proper and do not jeopardize DS&T interests or endanger DS&T personnel or facilities." See Wilcox Decl. at ¶2. Yet the CIA provides no evidence or citations to internal or statutory regulations supporting the authority allegedly espoused by Wilcox.

Furthermore, Wilcox asserts that her statements are based upon her "personal knowledge, information made available to me in my official capacity, the advice of the CIA Office of General Counsel, and conclusions I reached in accordance therewith." Id. at ¶3. However, Wilcox's allegations in ¶¶ 14-19, which allegedly lay at the heart of the CIA's decision to withhold these documents, do not meet the criteria of Fed.R.Civ.Proc. Rule 56(e).

In these paragraphs Wilcox seeks to justify the CIA's refusal to disclose the six

80+ year old documents. To summarize, the CIA believes that the:

Id. at ¶19.

As this Court is well aware, in order to obtain summary judgment the government must file affidavits and an index which enables the trial and appellate courts to perform their de novo review of the government's classification decision. Vaughn v. Rosen,

484 F.2d 820, 827 (D.C.Cir. 1973), cert. denied, 415 U.S. 977 (1974). Unsupported hearsay, such as that set forth in the Wilcox declaration, is insufficient to satisfy NARA's burden. Those cases that have permitted the filing of hearsay affidavits have primarily done so in the context of describing administrative agency search procedures and have been filed by those who possessed supervisory or substantive responsibility regarding the activities involved. Patterson v. IRS, 56 F.3d 832, 840-41 (7th Cir. 1995)(second-hand declaration permitted to describe search procedures); Carney v. U.S. Dept. of Justice,

19 F.3d 807, 813 (2nd Cir.), cert. denied, 513 U.S. 823 (1994) (declarants supervised individuals who conducted document search); Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993)(affidavit of an agency employee responsible for supervising search); Safecard Servs. Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir. 1990)(declarant in charge of coordinating search and recovery efforts).

Wilcox is not competent to testify to the alleged use of techniques governing, or history regarding, invisible or secret inks. Nor does she possess supervisory responsibilities over any individual or procedure in question in this lawsuit. Indeed, JMP

is not challenging the sufficiency of NARA's search. There is no evidence substantiating the CIA's position other than by the hearsay statements made by an incompetent declarant that the CIA continues to use the invisible ink formulas contained in the six documents. Clearly, by virtue of his position, Ms. Wilcox cannot have any knowledge of the CIA's use of these inks, much less their impact upon national security.

Wilcox is competent to only provide a Vaughn index and describe the application of certain exemptions to these documents. But the authority to stamp the document classified and then explain the classification is not enough to justify the continued secrecy of these documents. This is especially true in light of the unique circumstances - an effort to dislodge historical documents that pre-date the existence of the very agency trying to hide them from the public's view.

Wilcox's declaration should be stricken. At the very least, this Court should require a competent declarant to present sufficient evidence to justify the CIA's substantive claims that the documents are exempt from disclosure.

II. NARA HAS FAILED TO DEMONSTRATE THAT THE CIA HAS ANY CLASSIFICATION STANDING TO CHALLENGE THE RELEASE OF THESE DOCUMENTS

The CIA has absolutely no authority to assert classification control over this case. Section 4.2(b) of Exec. Order No. 12,958 specifically states that "[c]lassified information shall remain under the control of the originating agency or its successor in function. An

agency shall not disclose information originally classified by another agency without its authorization." (emphasis added).

The six documents in question remain filed at NARA among the records of the Office of the Chief of Naval Operations. Declaration of Steven D. Tilley at ¶7 ("Tilley Decl."). One would presume from the location of the documents that the Department of the Navy possesses the appropriate declassification authority. Or perhaps, given that it was Herbert O. Yardley and MI-8's responsibility during the Great War to handle matters relating to secret ink, the Defense Department (as the successor for the War Department) might posses declassification authority. Any documents discussing formulas for German Secret Ink clearly, as The American Black Chamber, illustrates, were given to Yardley and his staff.

The documents were also likely in the possession of Yardley's Black Chamber which was also funded by the Department of State. Thus, the Department of State may also share declassification authority as well. Of course, the Department of Justice, particularly through the Federal Bureau of Investigation, has jurisdiction over espionage operations conducted within the United States. As recounted by Yardley's The American Black Chamber and in Kahn's Codebreakers, the formulas that are identified in the documents at issue were used by the German government for communicating with its agents here on United States soil.

In fact, the Vaughn index itself identifies two different federal agencies, both of which are still in existence, that created the documents. Document #5 was created by the Department of Commerce's Bureau of Standards. See Wilcox Decl. at 26. Document #6 originated with the San Francisco Division of Post Office Inspectors of the U.S. Postal Service. Id. at 27. This creates a significant question as to whether the CIA possesses classification or declassification authority over these documents. The CIA's failure to cite any authority that explicitly provides it with such power, or a release from the originating agencies transferring classification or declassification authority to the CIA, is quite telling.

So how did the CIA, an agency that was not even created until 1947 - thirty years after the documents themselves were written - and which lacks any jurisdictional or legal authority to operate inside the United States, enter the picture? According to NARA, "the CIA had advised NARA as long ago as 1973 that any government documents dealing with the subject of secret writing should be handled in accordance with CIA guidance and instructions." Tilley’s Decl. at ¶7. What specific authority did the CIA possess that permitted it to notify NARA that all classification determinations regarding these documents must go through it? What guidance and instructions exist effecting possible disclosure of these documents? NARA offers nothing to support the CIA's authority in this case, and even the CIA admits it does not maintain "ownership" of the documents. Wilcox Decl. at ¶7. Discovery may be in order to ascertain what, if any, lawful role the CIA may play in this case.

In support of its own position, the CIA offers a conclusory assertion justifying its perceived role in this case:

Id. Nothing more is provided, yet this statement could equally apply to any number of U.S. federal agencies. In fact, the law requires that "[t]he originating agency shall take all reasonable steps to declassify classified information contained in records determined to have permanent historical value before they are accessioned into the National Archives." Exec. Order No. 12,958, § 3.3(d). Moreover, upon receipt of JMP's FOIA request to NARA for documents "in its custody that contain information that was originally classified by another agency", NARA was to have refereed "copies of any request and the pertinent documents to the originating agency for processing...." Id. at § 3.7(b).

The CIA is clearly not the originating agency of any of these documents. Given that ample evidence exists demonstrating that other agencies are the originating agencies of these documents, and it does not appear that these agencies have ever transferred their authority to the CIA, the CIA has no place in this litigation, and NARA may not rely on the CIA for summary judgment or dismissal purposes.

III. THE CIA'S DECLARATION IS INSUFFICIENT TO SUPPORT NARA'S CLAIMS UNDER EXEMPTIONS ONE AND THREE

The CIA has asserted Exemptions One and Three of the FOIA as the basis for withholding the responsive records. According to the CIA, the documents are stamped CONFIDENTIAL and disclosure would cause damage to the national security interests of the United States. Wilcox Decl. at ¶22 and fn.8. This classification is the lowest level of classification available. See Exec. Order No. 12,958 § 1.3.

In order to justify its withholding, NARA must submit a Vaughn index sufficiently detailed enough for the Court to "make a rational decision whether the withheld material must be produced without actually viewing the documents themselves...." Dellums v. Powell, 642 F.2d 1351, 1360 (D.C.Cir. 1980). Neither the CIA's declaration or its Vaughn index permit this to be done. Therefore, NARA's Motion must be denied.

The Court of Appeals for this Circuit has set forth clear guidelines for the government's Vaughn filing. The affidavits must:

King v. Department of Justice, 830 F.2d 210, 224 (D.C.Cir. 1987). Agency affidavits must be specifically detailed and "cannot support summary judgment if they are 'conclusory, merely reciting statutory standards, or if they are too vague or sweeping.'" King, 830 F.2d at 217, 219, quoting Allen v. CIA, 636 F.2d 1287, 1291 (D.C.Cir. 1980)(emphasis added).

Neither should the Court be persuaded by the fact that access is being denied under the rubric of "national security." This Court's ability to question NARA/CIA's decision to withhold the documents under Exemptions One and Three does not rise or fall based on the determination of the legal sufficiency of the declarations. Following EPA v. Mink, 410 U.S. 73 (1973), Congress amended the FOIA to clarify its intent that "courts act as an independent check on challenged classification decisions." Goldberg, 818 F.2d at 76. Courts are not to relinquish "their independent responsibility." Id. at 77. Nor should courts "give an agency carte blanche to redact or otherwise withhold responsive information without a valid and thorough affidavit ...." Lawyers Committee for Human Rights et al v. INS, 721 F.Supp. 552, 561 (S.D.N.Y. 1989).

Indeed, the D.C. Circuit Court of Appeals has unquestionable upheld the judiciary's ability to question an agency's Exemption One determination. In commenting on the Congressional override of resident Ford's veto of the 1974 FOIA legislation, the Court of Appeals opined that "this vote of confidence in the competence of the judiciary affirms our own belief that judges do, in fact, have the capabilities needed to consider and weigh data pertaining to the foreign affairs and national defense of this nation." Washington Post Co. v. U.S. Department of State, 840 F.2d 26, 35 (D.C.Cir. 1988), citing Zweibon v. Mitchell, 516 F.2d 594, 642-643 (1975)(en banc), cert. denied, 425 U.S. 944 (1976).

Courts are to "require the agency to create as full a public record as possible concerning the nature of the documents and the justification for nondisclosure." Hayden v. National Security Agency et al., 608 F.2d 1381, 1384 (1979)(emphasis added). As the D.C. Circuit has elaborated:

Gardels, 689 F.2d at 1105. If the agency's statements fail this test, the Court is permitted to "conduct a detailed inquiry into whether it agrees with the agency's opinions...." Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir. 1980); see also Powell v. United States Dept of Justice, No. C-82-326, slip op. at 8 (N.D.Cal. Mar. 27, 1985)(district court ordered disclosure of classified information because it was "convinced [that] disclosure of this information poses no threat to national security."). The CIA's position on withholding these documents based on 82 year old science still being viable to such an extent as to cause damage to national security falls far short of reasonable, perhaps even implausible. Moreover, to condone such excessive classification based on dubious rationale is to set the stage for continued and more dangerous abuses that could go as far as concealing government wrongdoing.

Furthermore, "the District Court must do more to assure itself of the factual basis and bona fides of the agency's claim of exemption than rely solely upon an affidavit." Stephenson v. IRS, 629 F.2d 1140, 1145 (5th Cir. 1980)(footnote omitted). Summary judgment is appropriate in Exemption One cases only when the agency's declarations "describe the documents withheld and the justifications for nondisclosure in enough detail and with sufficient specificity to demonstrate that material withheld is logically within the domain of the exemption claimed ...." King, 830 F.2d at 217 (emphasis added). See also Dellums v. Powell, 642 F.2d 1351 (D.C.Cir. 1980)(agency has burden of demonstrating applicability of exemption to each document or segment withheld).

The CIA's declaration fails to adequately "describe the injury to national security that would follow from the disclosure" of these six documents. Wiener v. FBI, 943 F.2d 972, 980 (9th Cir.1991). It is not enough to rely "on general assertions that disclosure of certain categories of facts may result in disclosure of the source and disclosure of the source may lead to a variety of consequences detrimental to national security." Id. See also Rosenfeld v. United States Dept of Justice, 57 F3d 803, 808 (9th Cir. 1995)(same). In fact, based on the widespread public availability of similar, if not identical, information, it is inconceivable that disclosure would jeopardize national security. If our security is premised upon these documents and the antiquated formulas therein, then we are truly all at risk.

Nor can the advanced age of these documents - 82 years - be ignored. Section 3.4 of Executive Order 12, 958 provides for the automatic declassification of all "classified information contained in records that (1) are more than 25 years old, and (2) have been determined to have permanent historical value under title 44, United States Code ... whether or not the records have been reviewed." The CIA asserts it has determined the information is "exempt from automatic declassification." Wilcox Decl. at ¶24. However, there is no evidence that the CIA has followed proper protocol procedures required by the Executive Order in order to justify continued exemption. Section 3.4(d) of Exec. Order No. 12,958 requires that:

Neither CIA or NARA have provided any evidence that this procedure was followed, thereby precluding the CIA from exempting these six documents from automatic declassification.

A. Permitting The CIA To Withhold These Records Pertaining To Invisible Ink Literally Sanctions The Classification Of Morse Code And Indian Smoke Signals

Senator Moynihan warned that "[s]ecrecy can be a source of dangerous ignorance." Commission Report, at xxxix. In his Chairman's Forward he sought to remind us that "[t]he great discovery of Western science, somewhere in the 17th century, was the principle of openness. A scientist who judged he had discovered something, published it. Often to great controversy, leading to rejection, acceptance, modification, whatever. Which is to say, to knowledge. In this setting science advanced, as nowhere else and never before." Id. This case in many ways presents a conflict between science and secrecy. The advancement of the latter contributes nothing to the knowledge of the American people.

In fact, the CIA's excessive application of its classification authority comes down to nothing more than a broad stroke of abuse. Were this Court to permit such a canvas application of classification based upon claims of national security, it would be providing the CIA with a tool to shield any information at anytime. It is indeed a dangerous precipice on which we stand and the policy implications of such a position are frightening. Under such a regime, any technique, even the most innocuous and child-like, could be classified as vital to national security at the whim of the CIA. By way of example, a document on which "white-out" was utilized could be labeled as demonstrative of a method of "secret writing" and stamped as "TOP SECRET." CIA officials could classify a Morse code chart as "CONFIDENTIAL" merely because a planned CIA outdoor retreat intended to demonstrate its use in the field. American Indian tribes could be warned not to use smoke signals as a means of communication because the CIA has classified the technique.

A careful examination of the CIA's declaration also reveals that it has advanced somewhat contradictory assertions. On the one hand, the CIA seeks to intimidate this Court into believing the release of the documents in question would fundamentally disable our Government's covert writing and detection abilities, yet on the other hand, it implies these six World War I documents comprise just a part of our arsenal of knowledge on secret inks. "This information, along with similar information from the pre-World War II era," Wilcox asserts, "constitutes the basis of the CIA's and by extension, the U.S. Government's knowledge of secret writing inks and techniques of secret writing detection." Wilcox Decl. at ¶14. The logical extension of this reasoning is that rudimentary information concerning gunpowder must remain classified since gunpowder use is an essential element of modern military field equipment. But see Exec. Order No. 12,958, § 1.8(b)("[b]asic scientific research information not clearly related to the national security may not be classified.").

The sine qua non of the CIA's arguments, however - and an argument which Wilcox is not competent to make - concerns the foundation of Exemptions One and Three; namely that their release will compromise an intelligence method currently in use. The CIA declares that:

Wilcox Decl. at ¶17.

Wilcox, in fact, offers an important revelation in her declaration. In asserting protection under Section 1.2(a) of Executive Order 12,958, the CIA admits it neither owns the information in the six documents, nor requested it to be produced. Wilcox Decl. at ¶26. Instead, by virtue of having physical possession of the documents, the CIA makes the obvious argument that the information "is under the control of the United States Government." Id. While that may be true, the information is equally under the control of quite a few other governments as well. Obviously the German Government, from which the formulas were absconded, and the British Government, which provided us with much of our invisible ink knowledge, possesses the very same information. See Lawyers Committee for Human Rights, 721 F.Supp. at 569 (ruling that Exemption 1 protection is not available when same documents were disclosed by foreign government). Moreover, most developed countries likely possess the same information, and if they do not, it is easily available for purchase. Additionally, anyone with an Internet connection and a modem can now gather this information with merely a few keystrokes.

Book after book provides excruciating details that fully expose the secrets of invisible ink. Indeed, Herbert O. Yardely, who was responsible for much of this country's knowledge of invisible inks, including that which is likely contained in the documents at issue, reveals the innermost secrets of our invisible ink techniques. See The American Black Chamber. Given the sheer magnitude of publicly available information regarding the use of secret ink, there is no sound reason upon which the CIA can rely to maintain these documents as classified. See Washington Post v. DoD, 766 F.Supp 1, 13-14 (D.D.C. 1991)(adjudging that "non-official releases" contained in books by participants involved in Iranian hostage rescue attempt -- including ground assault commander and former President Carter -- have "good deal of reliability" and require government to explain "how official disclosure" of code names "at this time would damage national security"); Exec. Order No. 12,958, § 1.8 (a)(4)("In no case shall information be classified in order to ... prevent or delay the release of information that does not require protection in the interest of national security.").

This section's arguments began with Senator Moynihan and the example of how the openness of science benefits knowledge. It is, therefore, fitting that we conclude on the same theme. Senator Moynihan amply noted that "there are scientific discoveries that can be kept secret, for a period at least, especially where weapons systems are involved. But these often verge on the technological, and whilst frequently spectacular, they do not stay secret long. Someone else gets onto the idea." Commission Report, at xxxxix. The science of invisible ink - particularly that of 82 years ago - is a perfect example. The only secret still surrounding these documents is the CIA's motivations for overzealously classifying and jealousy guarding secrets that are no more.

As the CIA's declaration is insufficient as a matter of law, NARA's Motion to Dismiss or for Summary Judgment must be denied.

CONCLUSION

For the foregoing reasons asserted above, NARA's Motion to Dismiss or for Summary Judgment should be denied, and the documents ordered released.

Date: May 21, 1999

ORAL ARGUMENT REQUESTED

Respectfully submitted,


_________________________

Mark S. Zaid, Esq.

THE JAMES MADISON PROJECT

D.C. Bar #440532

1501 M Street, N.W.

Suite 1175

Washington, D.C. 20005

(202) 785-3801

_________________________

Charles J. Sanders, Esq.

THE JAMES MADISON PROJECT

D.C. Bar #394793

Attorneys for Plaintiff

_________________________

Robert Seldon, Esq.

PROJECT LAW

D.C. Bar #245100

1612 K Street, N.W.

Suite 1004

Washington, D.C. 20006

Of Counsel


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 21st day of May 1999, a copy of the foregoing Plaintiff's Opposition to Defendant's Motion to Dismiss or for Summary Judgment and Cross-Motion to Strike the Declaration of Teresa Wilcox was mailed, first-class and postage-prepaid, to:

Halsey B. Frank

Assistant U.S. Attorney

Judiciary Center Building

555 Fourth Street, N.W.

Washington, D.C. 20001

Attorney For Defendant

_____________________________

Mark S. Zaid, Esq.