The National Security Agency, Central Intelligence Agency, Federal Bureau of Investigation and Defense Intelligence Agency are each being sued for allegedly violating the Freedom of Information Act in their refusal to disclose records on anti-apartheid leader and South Africa president Nelson Mandela.
Ryan Shapiro, a prolific requester of government records, submitted requests that he hopes will finally reveal the role US intelligence agencies played in the 1962 capture and imprisonment of Mandela. He also would like to find out why it took until 2008 for the US to remove Mandela from a terrorist watch list and what led to his designation as a “terrorist.”
All four agencies have failed to properly respond to the requests. For that reason, Shapiro argues in his lawsuit, the “CIA, DIA, FBI and NSA have violated FOIA by improperly withholding records, failing to conduct and adequate search and, in the case of the CIA, refusing to process the request at all.”
The CIA decided his requests called for the agency to engage in an “unreasonably burdensome search.” The DIA refused to forecast when it could find the time to comply with the requests. The FBI did not respond and indicate whether it would release any records or not.
The response from the NSA was the most significant. On December 31, 2013, as reported on “Democracy Now!” this morning, “To the extent that your seeking intelligence information in Nelson Mandela, we have determined that the fact of the existence or the non-existence of the materials you request is a currently and properly classified matter.”
And, “FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations.”
What makes this remarkable is the fact that these requests are seeking some information that is over fifty years-old. Any information dealing with the anti-apartheid movement would probably be twenty to thirty years-old. Typically, information is up for declassification after twenty-five years.
Steven Aftergood of Secrecy News reported in 2006 that the NSA “has 46 million pages of historically valuable classified records more than 25 years old that are subject to automatic declassification by the end of December 2006, according to a new NSA declassification plan.” And, “Another 4.5 million pages of 25 year old records have been categorically exempted from automatic declassification because they ‘contain information relating to our core capabilities and vulnerabilities.’”
The NSA invoked the Espionage Act of 1917 when claiming it could not acknowledge the existence of records. What in this potentially fifty year-old information would reveal “core capabilities and vulnerabilities”?
It should be considered appalling that the NSA is invoking this World War I-era law used aggressively by President Barack Obama’s administration to prosecute leakers or whistleblowers.
The lawsuit filed indicates, “Though the US intelligence community is long believed to have been involved in Mandela’s arrest, little specific public information exists regarding this involvement. Similarly, though the US intelligence community is long understood to have routinely provided information to the South African regime regarding the anti-apartheid movement more broadly, little specific public information exists about these activities either.”
What could possibly be in this material that would impact the “national defense” of the United States other than awfully embarrassing details of how US intelligence agencies played a key part in trying to thwart the efforts of a civil rights icon, who later won the Nobel Peace Prize as well as the US Presidential Medal of Freedom?
“What was the extent and purpose of the U.S. intelligence community’s surveillance of Nelson Mandela prior to his arrest?” Shapiro asks. “What role did the US intelligence community play in the broader effort to surveil and subvert the South African anti-apartheid movement? To what extent, and for what objectives, did the US intelligence community surveil Mandela following his release from prison?”
“To what extent, if any, did the U.S. intelligence community continue providing information regarding Mandela to the apartheid regime following Mandela’s release from prison? What information did the US intelligence community provide American policymakers regarding Mandela and the South African anti-apartheid movement? To what extent, and to what ends, did the US intelligence community surveil the anti-apartheid movement in the United States?”
All of the answers to Shapiro’s questions are clearly in the public interest. The questions not only implicate freedom of speech and assembly here in the United States but in a foreign country, where the US was likely helping the apartheid regime and white government violate the rights of black South Africans.
In filing his lawsuit, Shapiro is not only pressing for information on Mandela but challenging this nation’s broken FOIA system. Agencies routinely abuse and manipulate the process to serve their desires to preserve total secrecy around programs and policies.
“The records of government are the property of the people,” Shapiro concluded. “Yet, unknown billions of pages are needlessly hidden from the American people behind closed doors and ‘classified’ markings. Undefined ‘national security’ concerns ostensibly legitimize this secrecy.”
President Barack Obama’s secrecy record has gradually outpaced his predecessor, President George W. Bush. The Associated Press reported recently that the “government’s efforts to be more open about its activities last year were their worst since President Barack Obama took office.”
Mandela is someone who Obama lauded at his memorial service in South Africa yet he studiously has avoided to address the dark part of American history where the US government considered this iconic leader an enemy of the state.
Intelligence agencies confronted with requests for information now seem intent to further conceal this aspect of American history. No matter how inspirational Mandela was to Obama, there most certainly will be no moment where Obama opposes agencies and indicates support for disclosing all information on Mandela. He’ll remain silent so these agencies can fight Shapiro and avoid reckoning with the past.
Watch Ryan Shapiro on “Democracy Now!” this morning.