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

Sibel Edmonds: Classified Woman (book)
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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?

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