by Jon Wiener
"Just when you thought there may be nothing left to say about The Beatles or the Nixon Years, the FBI has opened up its secret files on the late John Lennon."
Dan Rather, CBS Evening News, reporting the settlement of Wiener v. FBI
"A strident and impermissible effort to second-guess the wisdom of the FBI. . . . A potpourri of conjecture, supposition, innuendo and surmise."
from the FBI's court documents
"A classic case study. There is humor here and mystery, too. But most of all, there is hard evidence - in the FBI's own words - of what happens when government substitutes paranoia for law."
"Jon Wiener has put together a remarkable compilation of documents. Wiener's commentary is as sprightly as the documents are foolish. He is thorough, appropriately droll at times, and rightly focuses on the question of whether the FBI and CIA were keeping to their lawful mandates during the years of abandon and evasion."
Todd Gitlin author of The Sixties
"The book sheds light on many issues far broader than John Lennon - the Nixon administration for example, and, not less importantly, the particular machinations of Clinton, Tony Blair, and other current world leaders. Very few people know how the process of seeking and retrieving documents supposedly available under the Freedom of Information Act really works; Wiener's book makes this all very clear."
Eric Foner, Columbia University
Jon Wiener is Professor of History at the University of California, Irvine, author of Come Together: John Lennon In His Time (1994), and a contributing editor of The Nation.
Early in 1981, shortly after John Lennon's murder on December 8, 1980, I filed a Freedom of Information Act (FOIA) request for any files the FBI had kept on Lennon. The FBI released some documents in May. But of the 281 pages staff said they had reviewed, they withheld 199 (more than 70 percent) in their entirety. The documents were withheld mostly under three different FOIA exemptions: protection of the privacy of others named in a document, protection of the identities of confidential sources, and "national security."
The documents that were released included one page that had Lennon's name at the top but was otherwise blocked out under the national security exemption (see p. 170); a variety of documents discussing the Nixon administration's effort in 1972 to deport Lennon, including a letter suggesting that Lennon be "arrested if at all possible on possession of narcotics charge," which would make him "immediately deportable" (see p. 289); and several pages, completely blacked out, from the Detroit FBI reporting on Lennon's appearance at the "John Sinclair Freedom Rally" in Ann Arbor in December 1971 (see pp. 110-119). Most interesting was a letter from J. Edgar Hoover to H. R. Haldeman, assistant to the president, dated April 25, 1972, that had been withheld in its entirety under the national security exemption (see p. 240). Since Haldeman was the closest official to Nixon, this document provided crucial evidence that the Lennon investigation was a political one, significant at the highest levels of the Nixon White House.
When these documents began arriving in my mailbox in the spring of 1981, American politics was beginning a shift of historic proportions toward the right. Ronald Reagan had been elected in November 1980, bringing to power the Republican right wing that had failed to elect Barry Goldwater sixteen years earlier. The "Reagan Revolution" rested on an ideological commitment to "law and order," which Lennon had challenged, and a passionate hostility to "the sixties," which Lennon personified. The fight for the Lennon files would be a battle with the Reagan administration.
When the FBI informed me it was withholding 70 percent of the Lennon files, the letter also said, "You may appeal to the Associate Attorney General." I did. My appeal argued that information about Lennon's plans to demonstrate against Nixon should not have been withheld under the "national security" exemption, a decision I called "arbitrary and capricious." I argued that the other withheld material was "not properly covered by the exemptions claimed."
Reagan's assistant attorney general for legal policy, Jonathan C. Rose, responded six weeks later: "After careful consideration of your appeal, I have decided to affirm the initial action in this case." The national security material, he wrote, was "being referred to the Department Review Committee for review," but the rest had been "properly withheld."
Six months after that, the assistant attorney general informed me that the review committee had completed its work and concluded that eight of the national security pages could be declassified. But the FBI still wasn't going to release them. While those pages were no longer being withheld on national security grounds, the bureau now claimed they fell under other exemptions: personal privacy and confidential source information. So my administrative appeal produced little of significance. The assistant attorney general's letter denying my appeal concluded, "Judicial review of my action on this appeal is available to you in the United States District Court for the judicial district in which you reside." It was time to find a lawyer.
The FOIA gives federal courts the power "to order the production of any agency records improperly withheld from the complainant." That's what I wanted the courts to do. I asked a variety of organizations and attorneys for help in bringing an FOIA lawsuit against the FBI. Victor Navasky, editor of The Nation magazine, suggested four criteria for picking a lawyer: find one you trust; who understands the case; who cares about it; and who will do it for no money except an award of fees at the end. Courts had awarded attorney fees in some successful FOIA appeals, recently in an appeal for documents about Vietnam Veterans against the War (VVAW), so money at the end remained a possibility.
In search of a lawyer, I talked to the Reporters Committee for Freedom of the Press, the Fund for Investigative Journalism, and the Fund for Open Information and Accountability ("FOIA, Inc."). I talked to the Media Alliance in San Francisco and the Center for Investigative Reporting in Oakland. I talked to the American Historical Association's Committee on Access to Documents. I talked to the Playboy Foundation, well known for its defense of the First Amendment. I talked to Frank Wilkinson, who had sued the FBI for his file, the largest on any individual, and who headed an organization called the National Coalition against Repressive Legislation originally established to fight HUAC. I talked to the San Francisco attorney who had been awarded fees in the VVAW case. I talked to prominent radical attorneys including Leonard Weinglass. I talked to Leon Friedman, who Victor Navasky called "the best FOIA attorney in the country."
All the attorneys told me the same thing that Leon Friedman did: "I took a couple of these, hoping to win, and got burned. I'm not in a position to do this kind of thing. You can't win on national security any more. Try the ACLU."
So I talked to Ramona Ripston and Fred Okrand of the ACLU of Southern California. Okrand, who was legal director, told me, "I don't know of anyone who'd be interested, but I'll ask around and if I come up with anyone, I'll have them call you." That was in January 1983, and it didn't sound promising. But shortly thereafter, Okrand's successor, Paul Hoffman, called to schedule a meeting at which I would present my case to him and Mark Rosenbaum, the ACLU general counsel.
At the meeting, I presented my documents and arguments, anxious that this was my last best hope. Nervously, I showed that I had followed the ACLU's model letters requesting material under the FOIA and that I had exhausted my administrative appeals. It turned out that their biggest concern was not about the case but about their potential client, the possible plaintiff: was I some kind of obsessed fan? or perhaps a burned-out hippie, living in the past? or a conspiracy buff, eager to prove Reagan had ordered Lennon's assassination? They brightened noticeably when they learned I had been granted tenure six years earlier at the University of California, Irvine; that I had published not just in Radical America, Dissent, and Socialist Review but also in the American Historical Review and the Journal of Modern History, and the distinguished British scholarly journal Past and Present. They saw they would be able to argue that the plaintiff was a respected historian who sought the Lennon files as part of his research on the American past. Convinced that their potential client was a mild-mannered professor and not some kind of nut, the two of them decided the ACLU of Southern California would take the case. Rosenbaum, who eventually succeeded Hoffman as ACLU legal director, served as the colead attorney throughout the next fifteen years of litigation.
In a 1998 interview, he discussed the ACLU's considerations in taking the case: "It was simple to decide. The timing was coincident with a national frustration with the administration of the FOIA, particularly in the areas of national security and informants. Agencies were coming forward with boilerplate refusals. The law's presumption in favor of disclosure had, for all intents and purposes, been dissolved, and the FBI in particular was choosing what they wanted to disclose. If any case could take us back to legislative objective favoring disclosure, this would be the one." So the ACLU's first goal was not just to get the documents, but to challenge "systemic problems in implementing the FOIA."
The ACLU had a second goal: to publicize the value of the FOIA and expose the ways in which it was being subverted by the FBI. The files on Lennon provided an excellent example that could win media attention.
Mark Rosenbaum is a remarkable figure. Known as both a brilliant legal strategist and a passionate and effective courtroom advocate, he graduated from the University of Michigan in 1970 and went on to Harvard Law School. In 1973, on the verge of dropping out because the classes seemed so uninteresting, Rosenbaum went to work as a clerk in the law office of Leonard Boudin and Leonard Weinglass. At that moment, they, along with Ramsey Clark, happened to be representing Daniel Ellsberg, the government researcher who was being prosecuted by the Nixon administration for leaking the Pentagon papers to the New York Times. Rosenbaum describes the experience of working on the Ellsberg defense as "the turning point of my life."
After the Ellsberg case, Rosenbaum went back to Harvard Law School and graduated in 1974. He then joined the ACLU of Southern California as a staff counsel - hired by the new executive director, Ramona Ripston. Stanley Sheinbaum, then head of the ACLU Board of Directors, personally put up the $10,000 required to pay Rosenbaum's salary for the first year. The year before taking on the Lennon FBI files case, he had gone to the Supreme Court, along with Harvard law professor Laurence Tribe, to challenge school segregation in Los Angeles.
In subsequent years Rosenbaum would serve as colead counsel in the ACLU lawsuit seeking to overturn California's Proposition 187, the anti-immigrant initiative, and as the point man in the ACLU fight to maintain affirmative action programs. He also successfully defended the constitutionality of the "Motor Voter" registration act, challenged by California governor Pete Wilson before the Ninth Circuit Court of Appeals. And in 1995 he argued before the Supreme Court a case in which the Court held that residency requirements for Aid to Families with Dependent Children program recipients were unconstitutional.
When the ACLU decided in 1983 to take the Lennon files case, Rosenbaum called Dan Marmalefsky, a Los Angeles attorney with the firm Hufstedler, Miller, Carlson & Beardsley (which later merged with Morrison & Foerster). Another brilliant young lawyer, Marmalefsky had graduated from the University of California, Berkeley in 1976 and from Yale Law School in 1980, where he received an award for his work in legal services. He went on to specialize in complex civil and criminal business litigation. In 1982 he had served as co-counsel for a group of Salvadorean refugees seeking political asylum, assisting with an appeal to the Ninth Circuit. He also had experience with FOIA litigation, primarily from using it for discovery in criminal cases, starting with the defense of John DeLorean in 1982, and had worked with Rosenbaum pro bono on several other ACLU cases. Marmalefsky accepted Rosenbaum's offer to work on this one, and the two served as co-lead counsel for the next fifteen years.
Marmalefsky told me that the decision to take a pro bono case was his alone and didn't require permission from anyone at his firm. "The basic question concerns time, balancing pro bono work against the amount of fee-generating work I do," he explained. "Because when I take pro bono cases, I don't do it halfway. I treat them the same as any other matters and devote the necessary time - whatever it takes."
The two had just won a case before the Supreme Court in 1983, an ACLU challenge to the California Penal Code section making it a crime for a person to refuse to provide identification when asked by a police officer. The Court accepted their argument that the law violated the First Amendment and voided the statute for vagueness and overbreadth.
In 1985 he and Rosenbaum would bring to the Supreme Court a case challenging the constitutionality of the enforcement of draft registration. He also litigated prosecutors' duty to present exculpatory testimony before a grand jury and the right of public access to juvenile court proceedings. But Marmalefsky's practice wasn't all pro bono; in other cases he helped successfully defend Kirk Kerkorian in a $1 billion damage suit over the sale of MGM to Giancarlo Parretti in 1990, and as co-counsel, he won an $11 million verdict for an investor defrauded in commodities trading.
When Rosenbaum and Marmalefsky went to work on the case, 69 pages out of 281 in the Lennon FBI file were being withheld in their entirety under various claims, and portions of dozens of others were also withheld. The FOIA not only allows judges to order agencies to release withheld documents but also requires that if a requester brings a case before a judge, "the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld . . . and the burden is on the agency to sustain its action." Equally important was the section of President Reagan's executive order on classification, which declared that "in no case shall information be classified in order to conceal violations of law . . . [or] to prevent embarrassment to person, organization, or agency."
Because the FBI cited three different exemptions under the FOIA for withholding most of the information, challenging the withholding required litigating each exemption separately, and each had a separate body of case law to be studied and invoked.
When Rosenbaum and Marmalefsky sat down to discuss strategy, they conceded that the law was clear that we would never get some of the withheld information; the names of confidential informants, for instance, were clearly protected. So we decided at the outset to notify the FBI that we were not seeking those names, the names of FBI or nonfederal law enforcement officers, or technical source symbol numbers. We were challenging the claims made for withholding only some of the information: particularly the material claimed under "national security" and the information provided by confidential sources. We were not seeking the names of the informers, but we were seeking the information they provided.
The "national security" information provided the most obvious target - how could release of twelve-year-old information about a dead rock star possibly endanger the national security? - but was also the most difficult to obtain. Mark Rosenbaum told me that the biggest problem in the case was that "courts fear divulging national security documents. They believe that courts should tread lightly in this area. They pay enormous deference to executive branch claims concerning national security."