FBI Says Files In Leak Cases Are ‘Missing'
BY JOSH GERSTEIN - Staff Reporter of the Sun
December 27, 2006

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SAN FRANCISCO — The FBI is missing nearly a quarter of its files relating to investigations of recent leaks of classified information, according to a court filing the bureau made last week.

In response to a Freedom of Information Act lawsuit, the FBI said it identified 94 leak investigations since 2001, but that the investigative files in 22 of those cases "are missing" and cannot be located. "There is no physical slip of paper on the shelf which indicates that the file has been charged out to a particular FBI employee, so therefore there is no way of knowing where the file may actually be," an official in the bureau's records division, Peggy Bellando, wrote in a December 22 declaration.

"That's an amazing number," an academic who has studied the FBI's record-keeping procedures, Athan Theoharis of Marquette University, said in an interview yesterday. "These are very sensitive investigations. ... They could be called to account for whether they are monitoring reporters. These are records that should be handled very well."

Over the past decade, the FBI has waged an epic struggle to computerize and automate its records systems. The agency abandoned a $170 million "Virtual Case File" project last year after years of Congressional hearings and critical evaluations led to the conclusion that the system would never be implemented successfully.

One frequent critic of government database programs, Barry Steinhardt of the American Civil Liberties Union, said that record makes it understandable that a substantial proportion of the leak files would be mislaid.

"It's par for the course," Mr. Steinhardt said. He noted that the Justice Department has already put about 1 million case records into a database, called OneDOJ, that is being made widely available even though the files may contain unverified or erroneous data. "They want to distribute it to law enforcement in every city in the United States, but here the FBI can't manage its own files," the critic said.

Ms. Bellando's declaration said the 22 missing files pertain to 51 cases listed as closed and not to 43 other leak cases listed as pending.

Last month, a federal judge in San Francisco, Maxine Chesney, ordered the FBI and other agencies to respond by Friday to this reporter's requests for information on the frequency and outcome of leak probes. The requests followed a spate of high-profile federal investigations into press leaks, including a special prosecutor's inquiry into the leak of a CIA operative's identity, as well as a separate case in which two pro-Israel lobbyists and a Defense Department analyst were indicted for trafficking in classified information.

The Justice Department, the FBI, the CIA, and the Department of Defense told Judge Chesney last week that they will be unable to meet the court-imposed deadline and need as many as 120 additional days to complete work on the requests, which were filed in March.

A spokeswoman for the FBI, Catherine Milhoan, said she could not comment on the ongoing litigation, but noted that the records search is continuing and has been complicated by procedures for handling classified materials. She also said all hope for recovering the missing files is not lost. "It doesn't mean there aren't other avenues in place to locate those documents," she said.

Mr. Theoharis, a professor emeritus of history, said that in the 1960s the FBI used procedures known as "do not file" and "summary memoranda" to avoid placing files in the central records system. As a result, he said, the bureau would tell judges or members of Congress that searches turned up no records, when files actually existed in a secondary system.

"There's no reason to think they're not doing the same thing today," Mr. Theoharis said. "I don't want to sound conspiratorial but I don't think one can discount this."

Reader comments on this article
Title By Date

Inattention vs. Intention: Fritz Casselman
Dec 28, 2006 10:46
Wow. I've always taken modest comfort that, even though the FBI knows far more about me than I wish, it is too incompetent to do anything about it. Now we see a startlingly high incompetence rate on matters that presumably the FBI actually cares about. While that should bolster my aforementioned comfort, this effect is far outweighed by my reluctant recognition that this incompetence level probably extends to matters which both the FBI and the nation, me included, consider important.

Evidence of Top-Down Dereliction: 5thLevelMole
Dec 28, 2006 10:08
In my judgement, the most important aspect of this story may not be the story itself but rather, the context or landscape in which it has occurred. For those trying to understand this from the context of believing official 9/11 conclusions, good luck; the story should serve as a call to reexamine the events of 9/11 but you cannot let yourself go there because you are told it's unpatriotic. Nevertheless, other Federal investigation files were housed and lost with WTC #7. For those who understand the wider scope of the deliberately gradual treason, it is still not as simple as it might appear. The incidence rate of leaks at Fed agencies these past 3 years alone should be enough to raise the hair on anyone's neck. My take on many such news items is that in the NWO context these leaked stories of leaks, real or not, are finding their way to the fore for purposes of further PSyOp-ing (demoralizing) US citizens, and (imagine) dedicated non-corrupted agents, into accepting tighter and tighter restrictions and scrutiny. Thus minimizing the risks of exposure up the chain of command. Ask whether each of these stories would warrant or dismiss the need to control public outrage.

Easy Solution: robert parr
Dec 27, 2006 15:27
polygraph everyone who did or now has access to where files held.

Custody and Intervals for Investigation Files: Claude Bogardus
Dec 27, 2006 15:19
The disappearance of FBI Files containing information concerning the conveyance of restricted classified data to unauthorized persons should result in jail terms for fhe FBI officials, who were charged with custody of the files, and appropriate punishments of any persons, not employed by the Bureau, who facilitated the loss. But, of course, this "scandal" will wither away and join the 900 FBI Files that were "mistakenly" sent by the FBI to the Regime's Political Operatives, Cleaners, and Fixers during the early days of the Clinton Executive Supremacy. The Custody of each of the FBI Registry's Files must be assigned to specific authorized persons at all times. At intervals of convenience and control, such Custody must be demonstrated for those Files in the possession of such authorized persons. Failure to demonstrate Custody should incur severe penalties. What is so difficult about such a simple system?

Paging Sandy Berger: Jeff H
Dec 27, 2006 12:32
Someone should check all the ex-Clintonites' clothing and basements.

Lost files: T.Paine
Dec 27, 2006 12:30
The first thing that should be done is a lie detector test to every employee at the FBI. The second would be to search the New York Times building. Thirdly, find out where Sandy Berger was.

This is criminal and if there was ever a reason to fire everyone at the FBI and start over-this is it.

Missing FBI files: nbpundit
Dec 27, 2006 11:18
Was a trail of socks, underpants, and pockets discovered at the location of these 'missing' files?

HUH?: TAD
Dec 27, 2006 09:31
Can I tell the IRS, "sorry, I lost the records/"

the illogical: Irritable Farmland
Dec 27, 2006 07:59
When bureaucracy exists so does stupidity.

Kafka realized that there is no more efficient murder weapon than what the critic George Steiner called "the lunatic logic of the bureaucracy."

Pity, all of it.

Out of Control: Vituperator
Dec 27, 2006 12:01
The FBI and the CIA are out of control. Interference in domestic political matters has become the ordinary rather than the exceptional, something that should raise the hair on the back of one's neck. Unless something is done to make such interference too costly for these perps, it will only get worse and seriously endanger our freedoms and the national security of this country.

Tampering with government documents and leaking documents should be serious crimes with serious consequences. When evidence of such tampering and leaking becomes evident, no effort should be spared to identify and prosecute the offenders - and harshly.

Court Orders Expedited Handling of FOIA Request on Leaks

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A federal judge ordered (pdf) the Central Intelligence Agency and the National Security Agency to respond within 30 days to a Freedom of Information Act request from reporter Joshua Gerstein for a copy of records regarding unauthorized disclosures of classified information ("leaks").

Gerstein, a reporter with the New York Sun, had requested all "criminal referrals" regarding classified leaks filed since 2001; all responses to such referrals from the Justice Department; damage assessments of the unauthorized disclosures; and various other related records.

The CIA and NSA had granted Gerstein's request for expedited processing but then failed to produce any records for eight months. Nor did they offer a justification for their dereliction. (Correction: CIA and NSA denied the request for expedited processing.)

Judge Maxine M. Chesney of the Northern District of California therefore ordered the agencies "to produce all non-exempt records and non-exempt portions of records that are responsive to Gerstein's FOIA requests" within 30 days.

In a separate ruling, Judge Chesney also ordered (pdf) the Department of Defense, the Department of Justice and the FBI to respond within 30 days to similar requests from Gerstein regarding leaks.

Neither order precludes agencies from invoking lawful exemptions to the Freedom of Information Act and withholding documents accordingly.

See "Reporter Wins A Court Battle With Government," New York Sun, December 4:
BY Staff Reporter of the Sun
December 4, 2006

A New York Sun reporter won an unusual victory in federal court in San Francisco last week, when a federal judge ordered the Department of Justice and other government agencies to respond to the reporter's request for a variety of documents that could show what efforts the Bush administration has made to investigate leaks to the press.

The decision, by Judge Maxine Chesney of U.S. District Court in San Francisco, came after the federal government was slow to comply with a request from more than eight months ago by reporter Josh Gerstein made under the federal Freedom of Information Act.

The documents Mr. Gerstein requested relate to investigations the government has conducted into leaks of classified information to reporters. The documents requested included any that would indicate what disciplinary actions were taken against government officials believed to have leaked classified information.

In court, the government had resisted Mr. Gerstein's request for documents. Mr. Gerstein had argued that issues involving press leaks were of "acute and significant national interest," according to the decision.

Judge Chesney ruled that the standard 20-day response time afforded the government applied to Mr. Gerstein's request as well. The judge ordered the government to give Mr. Gerstein a response to his document request within a month of the court order, which came down last week.

Posted by Steven Aftergood on December 4, 2006 02:36 PM

Court orders expedited review of journalist's FOIA request
Reporters For Freedom of the Press, News Media Update
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Agencies have 30 days to respond to New York Sun reporter Joshua Gerstein's request for information on government response to recent classified information leaks.

Dec. 7, 2006 · A newspaper journalist representing himself has convinced a federal court in San Francisco to order government agencies to speed up their search for records related to government investigations into unauthorized disclosures of classified information.

The order is a victory for Joshua Gerstein, a reporter for The New York Sun who is seeking the information under the Freedom of Information Act.

According to the Nov. 29 court order, the agencies have 30 days to either turn over records responsive to Gerstein's request or to justify their continued withholding based on one of the nine exemptions to FOIA.

Judge Maxine M. Chesney, quoting higher court cases, said the public interest is advanced by requiring a quick response to Gerstein because "a core purpose of FOIA is to allow the public to be informed about 'what their government is up to,' and 'official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose.'"

Gerstein, as part of his reporting on the government's handling of classified information leaks, made FOIA requests in March to various agencies, including the FBI, CIA, National Security Agency and Department of Defense. Public awareness of classified programs such as the government's warrantless wiretapping program and bank information monitoring practices were the result of leaks, Gerstein argued in court documents. Given the heated debate surrounding these issues at the time, Gerstein asked that his requests be expedited.

The FBI, Defense Department and two other agencies granted Gerstein's call to expedite in their initial responses acknowledging his request. But the CIA and the NSA declined to speed up the process.

While the agencies initially differed in how they stated they would deal with Gerstein, their positions quickly coalesced around a common course of action: ignoring him. By July 31, Gerstein had received no documents and no explanation as to why the records might be exempt. Federal law requires agencies to either disclose materials or explain why they are declining to release them within 20 days of a request.

Gerstein said he expects the agencies will claim various exemptions as the basis for continuing to withhold the material and that the court fight is likely to continue.

"I'm still optimistic, but by no means do I think I have won this yet," Gerstein said.

In court filings seeking to have the CIA and NSA's denials of priority review overturned, Gerstein argued there was "widespread and exceptional" public interest in learning of the government's efforts to deal with leaks. As evidence of this importance, Gerstein used the government's own words against it, pointing to statements of high-level government officials, including former CIA Director Porter Goss, who argued in a New York Times Op-Ed piece that excessive leaking was a crisis, and Vice President Dick Cheney, who said leaks harmed relationships with other governments.

Chesney agreed that this public interest would be harmed by further agency delay in responding to Gerstein.

"A delay in processing Gerstein's FOIA request, as he contends, 'could preclude any meaningful contribution to the ongoing public debate and render any disclosure little more than a historical footnote,'" Chesney wrote.

This is the third FOIA case Gerstein has pursued in court while acting as his own attorney.

(Gerstein v. Central Intelligence Agency, Media Counsel: Joshua A. Gerstein, pro se) -- NW

© 2006 The Reporters Committee for Freedom of the Press

The NSA may escape scrutiny, however:

Judge Rejects Request for NSA Documents
Federal Judge Rejects Advocacy Group's Request for NSA Wiretapping Documents
The Associated Press, Tuesday November 21, 2006

WASHINGTON - The National Security Agency is not required to release details about its secret wiretapping program, a federal judge said Monday.

The People for the American Way Foundation, a liberal advocacy group, sued to obtain records under the Freedom of Information Act. The group sought to find out how many wiretaps were approved and who reviewed the program.

President Bush has acknowledged the existence of the program, which he calls the Terrorist Surveillance Program. The National Security Agency monitors phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.

Civil liberties group criticize it as an expansion of presidential power, and a federal judge has said it is unconstitutional. The Justice Department says it is a necessary tool to fight terrorism.

The NSA denied the request for documents, saying the records would jeopardize national security. The advocacy group argued that the law can't be used to protect the government from disclosing details about illegal programs.

U.S. Judge Ellen Segal Huvelle disagreed, saying that even if the program is ultimately determined to be illegal, it doesn't change the fact that the materials are classified and are not covered by the Freedom of Information Act.

NSA has massive database of Americans' phone calls

What about Executive Order Number 13,392?
Improving Agency Disclosure of Information Executive Order 13,392