The curious case of John Lennon and the FBI
Wiener, Jon
The concept of the 'official secret' is the specific invention of bureaucracy," Max Weber wrote, "and nothing is so fanatically defended by the bureaucracy." Democratic politics requires a...
...Instead of complying with the Ninth Circuit ruling, the FBI appealed to the Supreme Court...
...The ACLU appealed to the Ninth Circuit...
...The Nixon administration learned in 1971 that Lennon and some friends (Jerry Rubin and Rennie Davis) were talking about organizing a national concert tour to coincide with the 1972 election campaign, a tour that would combine rock music and radical politics, during which Lennon would urge young people to register to vote, and vote against the war...
...I ought to know...
...The Bush Justice Department told the Court that the ruling posed "a serious risk of unlawful disclosures" and placed "an intolerable burden on the government" —that is, it was intolerably burdensome to require the FBI to explain how it arrived at its conclusions about national security...
...The Ninth Circuit decision was significant because it held not just that release of the Lennon file was unlikely to provoke anti-American riots in Britain, but that the FBI's codebook approach was itself unacceptable...
...the American Civil Liberties Union (ACLU) of Southern California filed suit on my behalf in 1983, challenging this and other deletions...
...I've been in court for a decade, trying to get the FBI to release its secret files on John Lennon...
...It's hard to disagree with that, but couldn't they have come to the same conclusion after only two or three years of work on the case...
...Max Weber would have understood the argument well: there's no opinion more valuable than an expert opinion...
...This statement represented a clear and bold advance over the policy declared in 1981 by the Reagan administration, under which the government went to court to fight FOIA cases whenever it found a "legal basis" for doing so...
...The discovery of this difference between a "legal basis" and a "reasonable" one gives us hope that the case of Wiener v. FBI might finally be coming to an end...
...Democratic politics requires a public informed about government decisions, policies, and actions...
...My grandmother would have commented, "Go figure...
...Those files were gathered during the last days of FBI director J. Edgar Hoover, in the winter of 1971 and the spring and summer of 1972, when the Vietnam War was going strong, Richard Nixon was facing reelection, and the "clever Beatle" was living in New York and singing "Give Peace a Chance" at antiwar rallies...
...This is the point at which "information gathered by the United States . . . from a foreign country" enters the story...
...Lennon told the press that Nixon was after him and his wife, Yoko Ono, "because we're peaceniks...
...he marked the blacked-out passages with the code referring to "information concerning the foreign relations or foreign activities of the United States...
...Then Bill Clinton was elected and Janet Reno appointed, and the FOIA community, as we like to call ourselves, dared to hope that freedom of information policy might change...
...SPRING • 1994 • 281...
...Senator Strom Thurmond sent a secret memo to Attorney General John Mitchell early in 1972 reporting on Lennon's plans, and suggesting that "deportation would be a strategic counter-measure...
...yet government officials everywhere typically "keep their knowledge and intentions secret," and thereby avoid criticism and hinder opposition...
...Notebook That was a tough assignment for the clerks who have been designated by the attorney general as original Top Secret classification authorities...
...On a dark day for the FOIA, the federal district court in Los Angeles accepted the government's arguments and threw our case out...
...What had happened with my FOIA request was clear: an original classification officer, working all day, every day, with a thick magic marker, blacked out material in the Lennon file that originated with the British and Canadian governments...
...Presumably the FBI's Lennon file contains information from the British government regarding that event...
...the Justice Department submitted to the court the codebook it uses in all FOIA litigation, which 280 • DISSENT provides boilerplate arguments for each category of deletion...
...The concept of the 'official secret' is the specific invention of bureaucracy," Max Weber wrote, "and nothing is so fanatically defended by the bureaucracy...
...The FBI released approximately two hundred pages, but withheld another hundred—largely under the claim that releasing them would endanger the national security of the United States...
...A 1982 decision of the D.C...
...the lone vote supporting the Bush Justice Department was Kennedy holdover Byron "Whizzer" White...
...The Supreme Court in its wisdom denied the FBI's request to hear the case...
...The Nixon administration claimed that Lennon should be deported because his 1969 conviction on misdemeanor charges of marijuana possession in Britain made him inadmissible to the United States under then-existing immigration law...
...All the Nixon, Reagan, and Bush appointees to the court sided with the ACLU...
...it requires officials to make public the information in their files to "any person" who requests it—unless that information falls into a small number of exempted categories, including "national security...
...American democracy has not been powerless before the practice of government secrecy...
...However unlikely that seemed, the courts had accepted similar claims in other cases...
...Journalists, scholars, and activists have used the FOIA to expose officials' misconduct and lying, including the FBI's illegal efforts to harass, intimidate, disrupt, and otherwise interfere with lawful political actions—like John Lennon's singing "Give Peace a Chance...
...Special Agent Peterson informed the court that release of the Lennon information could "jeopardize the fragile relationships that exist among the United States and certain foreign governments...
...The Freedom of Information Act (FOIA) was passed by Congress in 1966...
...National security" has been defined by presidential Executive Order to cover information provided by foreign governments, and that seemingly reasonable definition has made for some remarkable arguments on the part of the FBI for refusing to disclose particular documents...
...District Court and give the judge a specific explanation of how it determined in each instance that release of information would harm national security...
...The Bureau had failed to justify withholding documents in the Lennon file...
...Circuit, affirmed by the Supreme Court in 1983 (American Jewish Congress v. Treasury Department), held that "even speculative or ambiguous prediction of harm to foreign relations through release of information provided by foreign governments is sufficiently reasonable and plausible to warrant deference to opinion of agency experts...
...In October, Attorney General Janet Reno declared a new policy: henceforth, the Justice Department would go to court to defend the withholding of information only when there was a "reasonable basis" for doing so...
...ten years later, a three-judge panel of the Ninth Circuit Court of Appeals issued a unanimous ruling: the FBI's claim of foreign military retaliation was "farfetched...
...The FOIA permits requesters to appeal Bureau decisions to withhold material by going to federal court...
...My initial FOIA request had been submitted in 1981...
...Canada is another country that almost certainly provided the FBI with information about Lennon: when Lennon was temporarily banned from entering the United States in 1968, he went to Montreal to do a series of antiwar broadcasts and interviews addressed to young people in the United States...
...The release of portions of the Lennon file, the FBI claimed, could "reasonably be expected" to lead to "foreign . . . military retaliation against the United States...
...One codebook section described "damage to the national security reasonably expected to result from unauthorized disclosure," and among the list of possible damages the FBI codebook included "foreign military retaliation against the U.S...
...The FBI's position was explained in a court declaration by Special Agent Robert F. Peterson, supervisor of the National Security Affidavits Unit at FBI headquarters, who told the court he had been "designated by the Attorney General of the United States as an original Top Secret classification authority...
...In 1981 I filed a FOIA request for files on Lennon...
...The codebook approach, the Ninth Circuit declared, provided the requester with "little or no opportunity to argue for release of particular documents," because it "provided no information about particular documents...
...My fight for the Lennon files provides an illuminating case study...
...But twelve years of Republican rule deeply eroded freedom of information...
...But instead of ordering the FBI to give us the documents, the Ninth Circuit Panel instructed the FBI to go back to U.S...
...That's what we thought...
...The FOIA created a notable institution in the history of bureaucracy: a set of rules and procedures, officials and offices, dedicated not to the collection and maintenance of secrets, but rather to their release to the public...
...The Nixon administration promptly began deportation proceedings against Lennon...
...What could the Lennon FBI file contain that, if released, might have these dire consequences...
...The Lennon file, "if disclosed, could lead to political or economic instability, or to civil disorder or unrest" in the foreign country that supplied the information, or could "jeopardize the lives, liberty or property of United States citizens residing in or visiting SPRING • 1994 • 279 Notebook such a country or could endanger United States Government personnel or installations there...
Vol. 41 • April 1994 • No. 2
