From: bill payne <billp@nmol.com>
Date: Sat, 29 Nov 1997 00:02:32 +0800
To: cypherpunks@toad.com
Subject: NSA
Message-ID: <347EE426.4013@nmol.com>
MIME-Version: 1.0
Content-Type: text/plain

The battle continues.


Friday 11/28/97 6:27 AM

John Young

Morales and I could not find the word surreply in the dictionary.

Microsoft Word spelling checker didn't recognize surreply either.

Speculation is that if I showed up at the NM district federal court 
clerk's office this morning with a surreply, the clerk would not file
it for the reason that we did not have the leave of court.

But, of course, we are not filing a surreply.  We like the Federal Rules
of Civil Procedure better than New Mexico local rules..

Had a great time at my former Ph.D. student Sobolewski's home 
last night.

Voytek visited this summer from Poland.  I met him

Voytek brought Sobolewski some Chopin Polish vodka.  And 
several other bottles of Polish vodka. One had grass in 
the bottle.

Sobolewski was born in Cracow in 1939.

Sobolewski even recalls as a youth seeing the freight trains going 
east.  Loaded with people.  Arbeit macht frei.

Let's hope some people see the merits in prompt settlement 
before this matter gets worse.  And get the American eagle flying
right. Especially the legal eagle.

Later
bill


		  UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO


William H. Payne        	   	    )
Arthur R. Morales                           )
                                            )
                Plaintiffs,                 )
                                            )
v                                           )	CIV NO 97 0266 
					    )	SC/DJS
			                    )
Lieutenant General Kenneth A. Minihan, USAF )
Director, National Security Agency	    )
National Security Agency		    )
                                            )
                Defendant                   )


PLAINTIFFS' ANSWER TO DEFENDANT'S CROSS-CLAIM REPLY TO PLAINTIFFS' 
RESPONSE TO DEFENDANT'S MOTION FOR PARTIAL  DISMISSAL AND MOTION FOR 
SUMMARY JUDGMENT

1  COMES NOW plaintiffs Payne [Payne] and Morales [Morales] 

[Plaintiffs], pro se litigants to exercise their rights 

guaranteed under the Local Civil Rules to respond to 

DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S  

MOTION FOR PARTIAL DISMISSAL AND MOTION FOR SUMMARY 

JUDGMENT [REPLY] filed 97 NOV 14 by assistant US attorney 

Jan Mitchell.

2 Local Civil Rule 7.6 Timing of and Restrictions on

Responses and Replies, (b) Surreply states

  The filing of a surreply requires leave of the Court.

But this filing is NOT A SURREPLY.

Rule 7 of the Federal Rules for Civil Procedure states

  (a)  Pleadings.  There shall be a complaint and an
  answer; a reply to a counterclaim denominated as such;
  an answer to a cross-claim, if the answer contains
  a cross-claim; a third-party complaint, if a person who 
  was not an original party is summoned under the provision
  of Rule 14; and a third-party answer, if a third-party                    
  complaint is served.  No other pleading shall be allowed,
  except that the court may order a reply to an answer or a
  third party answer.

Mitchell makes a claim in her REPLY.

Mitchell writes,

  It continues to be Defendant's position that Plaintiffs'
  Complaint for Injunctive Relief ("Complaint") filed February
  28, 1997 must be dismissed.

This ANSWER contains a cross-claim answer. 

Namely, give the public the documents legally requested under 

the FOIA.

3  Mitchell writes,

  Plaintiffs make the sweeping assertion that the "29 cases
  in Mitchell's MEMORANDUM ... do NOT APPLY to the facts in this
  case.  However, they cite to absolutely no case law to support
  their position.

No citations to case law are required for the reason that

Plaintiffs EXHAUSTED THEIR ADMINISTRATIVE REMEDIES, as stated

by NSA deputy director William P. Crowell.

Plaintiffs support their position by FACTS in this matter.

Mitchell attempts to force Plaintiffs to support the FACTS in 

this lawsuit with case law. 

Mitchell cited case law that applies ONLY when those seeking 

documents under the FOIA did NOT exhaust administrative 

remedies.

Mitchell's case law DOES NOT APPLY to this lawsuit for the 

reason that Plaintiffs DID EXHAUST ADMINISTRATIVE REMEDIES.

Lawyer Mitchell appears to attempt to apply the Nazi strategy  

   If you tell a big enough lie often enough, people
   will begin to believe it.

The lie Mitchell is attempting to convince readers of these

documents of is that Plaintiffs DID NOT exhaust administrative 

remedies.

Plaintiffs DID EXHAUST ADMINISTRATIVE REMEDIES.  NSA deputy

director and NSA FOIA/PA Appeals Authority William P. Crowell

writes 31 December 1996 

	Because the process of your request has not 			
	progressed to a point where there have been any 	
	initial, substantive Agency determination of the 	
	release or withholding of responsive records, I can 	
	offer you no administrative remedy.

4  Mitchell writes,

  The legal authority relied upon I the Memorandum in Support 
  of Defendant's Motion for Partial Dismissal and Motion for
  Summary Judgment (hereinafter referred to the "Memorandum"),
  provides clear legal basis for the Court to either dismiss
  Plaintiff's [sic] Complaint, or granting summary judgment to 
  Defendant as a matter of law.

Plaintiffs disagree.  Mitchell cites no case law to support

the above paragraph.

Rather Plaintiffs lawfully requested documents, mostly of 

KNOWN EXISTENCE AND LOCATION, and, as the Court may be aware

  When an administrative appeal is denied, a requester has
  the right to appeal the denial in court. A FOIA appeal 
  lawsuit can be filed in the U.S. District Court in the     
  district where the requester lives. The requester can also   
  file suit in the district where the documents are located or 
  in the District of Columbia. When a requester goes to court, 
  the burden of justifying the withholding of documents is on 
  the government. This is a distinct advantage for the 
  requester.
  
Mitchell wrongly seeks to have Defendant withhold the requested 

documents for the reason that she CLAIMS Plaintiffs have failed 

to exhaust administrative remedies.  

Bur Plaintiffs HAVE EXHAUSTED ADMINISTRATIVE REMEDIES as NSA 

former deputy director Crowell told Payne IN WRITING.

5  Mitchell writes,

  In Paragraphs 1-6 of Plaintiffs' Response, Plaintiffs appear
  to be claiming the Defendant has misrepresented this facts
  concerning Plaintiff Payne's Freedom of Information Act/
  Privacy Act("FOIA/PA") requests.  It is true that Plaintiff
  Payne did file two FOIA request with the National Security
  Agency ('NSA/Agency") and that NSA did not respond with the
  statutory time limit.  It is also true that Plaintiff Payne
  appealed with NSA the nonresponse to both requests and 
  subsequently received a letter dated 31 December 1997, from
  William P. Crowell, the Freedom on Information AC/Privacy
  Act appeals Authority.  Mr. Crowell stated, among other things
  that no administrative remedy could be offered at that time.

Lawyer Mitchell's "at that time" appears to be an argument that

Plaintiffs should wait indefinitely for NSA to produce requested

documents.  Plaintiffs exercise their rights and proceed to 

court as the law allows when administrative remedies have been

exhausted.

Mitchell UNSUCCESSFULLY ATTEMPTS to make a valid argument that 

Plaintiffs had to wait even longer AFTER ADMINISTRATIVE REMEDIES

WERE EXHAUSTED before filing a FOIA lawsuit.

6  Mitchell writes,

  Attachment 4 to Exhibit A, the Winch Declaration attached to
  Defendant's Memorandum.

NSA employee GARY W. WINCH [Winch], Director of Policy, made

a false statement under oath in an unsuccessful attempt to

reverse NSA deputy director Crowell's letter informing Payne

that administrative remedies were exhausted.

Winch's violation of the False Statement Act earned Winch

a criminal complaint affidavit file with selected magistrate

judge Antonin Scalia.

6  Mitchell writes,

  Despite the fact that Mr. Payne was clearly informed that he   
  could treat the letter from William P. Crowell as a denial of
  his appeal and he could proceed under 5 U.S.C. section 552 to
  seek judicial review of the determination, Mr. Payne did not
  proceed to exercise his right to file a civil lawsuit in the
  United States at that time.

Mitchell unsuccessfully attempts to make a valid argument that 

IMMEDIATELY UPON receiving Crowell's letter that Plaintiffs

were REQUIRED to file a lawsuit.  Mitchell cites no law to

support her argument.

The reason Mitchell cites no law is that the law does not

specify WHEN a plaintiff must file a lawsuit.

As the court may know 5 USC 552 states

  (B) On complaint, the district court of the United States
  in the district in which the complainant resides, or has his
  principal place of business, or in which the agency records     
  are situated, or in the District of Columbia, has jurisdiction 
  to enjoin the agency from withholding agency records and to 
  order the production of any agency records improperly withheld 
  from the complainant. In such a case 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 under any of the exemptions 
  set forth in subsection (b) of this section, and the burden is 
  on the agency to sustain its action. In addition to any other 
  matters to which a court accords substantial weight, a court 
  shall accord substantial weight to an affidavit of an agency
  concerning the agency's determination as to technical
  feasibility under paragraph (2)(C) and subsection (b) and
  reproducibility under paragraph (3)(B).
    (C) Notwithstanding any other provision of law, the
  defendant shall serve an answer or otherwise plead to any
  complaint made under this subsection within thirty days after
  service upon the defendant of the pleading in which such
  complaint is made, unless the court otherwise directs for good
  cause shown.

So Mitchell's argument that Plaintiffs were required to file

this lawsuit within a specific time after receiving Crowell's

letter must be dismissed as not supported by law.

7  Mitchell writes,

    In a letter dated 6 January 1997, Plaintiff Payne was       
  advised that his request for a waiver of fees had been denied
  and informed him of the estimate of the cost to search for the
  records concerning the algorithms.

NSA was clearly attempting to deny furnishing the requested 

documents by asking Payne for money for SEARCHING for the 

documents.  Payne worked with NSA implementing NSA crypto 

algorithms for about ten years.   Payne KNOWS WHO has 

documents and about WHERE the documents are located.

NO SEARCH IS REQUIRED.

Asking for fees to SEARCH is clearly a unintelligent ruse

to deny furnishing the legally requested documents.

8  Mitchell writes

  Attachment 5 to Exhibit A, the Winch Declaration attached
  to Defendant's Memorandum.  Once that letter was received,
  Mr. Payne was clearly on notice that NSA was continuing
  to process his FOIA request, and he was specifically 
  notified that if he did not agree with the fee determination,
  he could appeal in writing with 60 days to the NSA/CSS 
  Freedom of Information Act Appeals Authority.  He chose not
  to appeal the denial of the fee waiver nor did he pay the
  estimated costs.  Exhibit A, Winch Declaration, at 5, section
  14.

Payne is not required to appeal fee determination denial if 

Plaintiffs are NOT SUING OVER A FEE WAIVER DENIAL.

Mitchell cites no law to show that Payne is required to appeal

a FOIA fee denial before filing suit for legally requested

documents.

Winch wrote,

  The search cost estimate was $1,317.50, as computed in 
  accordance with DOD regulations.  Mr. Payne was informed
  that 2 hours of search would be conducted at no cost to
  him as required by the FOIA In accordance with its 
  regulations, NSA requires advance  payment of cost 
  exceeding $250 prior to initiating a search. Mr. Payne 
  was so informed in the Agency's 6 January letter and was 
  requested to pay the $1,267.50 (the remainder of the 
  estimated search costs) within 30 days.

Winch CLEARLY attempts to scam Payne by asking for $1,317.50

for a SEARCH.  No search is required.

Filing a lawsuit permits Discovery WITHOUT LEAVE OF THE COURT.

Discovery is used to located documents.

  Rule 26 (b)(1) 
 
  Parties may obtain discovery regarding any mater, not     
  privileged, which is relevant to the subject matter  
  involved in the pending action, whether it relates to the   
  claim or defense of the party seeking discovery or to the 
  claim or defense of any other party, including the existence,  
  description, nature, custody, condition, and LOCATION of any 
  books documents, or other tangible thing and the identity and 
  location of persons  have knowledge of any discoverable  
  matter. 

Economics of clearly wasting $1,317.50 or paying $125 for this

public internationally Internet-viewed lawsuit clearly favored 

the latter approach to get the lawfully requested documents.

9  Mitchell writes

    Despite Plaintiffs unsupported protestation to the contrary,
  the law is absolutely clear that when a requester elects not
  to go to court immediately -in this case, immediately after
  receiving the letter dated 31 December 1996 and before   
  receiving the letter dated 06 January 1997 - he must exhaust
  all administrative remedies within the agency.  Mr. Payne
  must have administratively exhausted the decision on the fee
  waiver decision.  Oglesby v. Department of the Army, 920 F2.d
  57, 61 (D.D.Cir. 1990); McDonnell v. United States of America,
  4 F.3d 1227, 1240 (3d Cir. 1993).  He is not do so.
  

 Mitchell cites no law to support her statement that Plaintiffs

are REQUIRED "to go to court immediately."  In fact, appearance

is that Mitchell has made another false statement under oath.
    
The fee $1,317.50 Winch requested for a search for documents

of known location, or whose location could be established

with Discovery, did not have to be appealed to exhaust 

administrative remedies.

Payne could have appealed the denial of waiver of fees but

chose not to because this was clearly a ploy on Winch's part

to cost Payne money.  And Mitchell cannot, because their is

no requirement, cite law to show that Payne is required

to appeal a fee waiver denial if Plaintiffs are not using

about fee waiver denial.

If Plaintiff's WISHED, which they did not, to sue for

fee waiver, then Payne would have had to appeal the denial

of FEE WAIVER to exhaust administrative remedies.

5 USC 552 4(A) states about a fee waiver denial lawsuit

  (vii) In any action by a requester regarding the waiver of
  fees under this section, the court shall determine the matter
  de novo: Provided, That the court's review of the matter shall
  be limited to the record before the agency.

But this lawsuit IS NOT ABOUT WAIVER OF FEES, it is about 

obtaining the lawfully requested documents.

Mitchell again attempts, unsuccessfully, to distort the law

by citing Oglesby and McDonnell where administrative remedies

were NOT exhausted.

This lawsuit is about obtaining documents.

Plaintiffs DID NOT sue for fee waiver denial.  Therefore,

no appeal of FEE WAIVER DENIAL was required.

10  Mitchell writes

    Plaintiffs not attempt to excuse Plaintiff Payne's failure
  to exhaust the administrative appeal process, by claiming that   
  the request for payment is a "ploy" to avoid providing
  the documents.  Plaintiff Payne asserts that he knows where   
  the records are located with NSA because of his association
  with the Agency during his employment with Sandia National
  Laboratory [sic] and, therefore, he maintains that no search
  is required.  Plaintiffs' Response, at 4 section 9.  Plaintiff
  Payne also asserts that even if he had paid the estimated
  costs, the Agency would not have produced the documents.
  Within the specified guiltiness, the FOIA allows an agency to
  assess fees for processing requests made under the Act and
  to require advance payment of estimated fees if it is 
  determined that the fees will exceed $250.  5 U.S.C section
  552(a)(4)(A)(i), (v).  The obligation is to conduct a search,
  the scope of which is reasonably calculated to lead to the 
  discovery of responsive records.  Under the law, there is no
  requirement that records actually be discovered in a search
  for which a requester pays.  OMB Fee Guidelines, 52 Fed. Reg.
  10,011, 10,018 (1987).  Even if Mr. Payne did know the 
  location of the records, (and Defendant certainly does not
  agree that he does),  The Agency would still have an 
  obligation under the law to conduct an adequate search.  
  Further, even if the records are found, they may still be 
  withheld under various FOIA exemptions.  In fact, the letter 
  from James P. Cavanaugh dated 06 January 1997, specifically 
  informed Mr. Payne that if any responsive records were found, 
  they would still have to be reviewed for releasibility and 
  that the records of this type most likely would be classified 
  or otherwise exempt from disclosure. Attachment F to Exhibit A
  to Defendant's Memorandum.
    Plaintiffs make an unsupported argument that because NSA
  did not respond to the FOIA requests within the allotted time,
  and because NSA failed to return the green return receipt
  cards, (Plaintiffs' Response, at 2 section 4),"[t]he law
  allows at requester to consider that his or her request has 
  been denied . . . [t]his permits the requester to file an
  administrative appeal."  Even if this statement were true,
  it has not bearing on the facts before the Court.  Plaintiff
  Payne did not timely file in Federal court prior to receiving
  the January 1997 letter from NSA informing him of the fee
  determination.  He may not pursue his action in Federal 
  court because he has not exhausted administrative remedies.

Mitchell again is incorrect.

Two issues can come before the court.

  1 Demand for documents illegally withheld under the FOIA.
  2 Demand for fee waiver.  

Text of both laws are reproduced in this ANSWER.

The lawsuit is about 1.  NOT 2.

Administrative remedies were exhausted as Crowell stated.

And Plaintiffs proceeded to court as permitted by law. 

Mitchell, as an officer of the court, has again violated

the False Statement Act again by presenting to the Court

and argument not relying on the facts of this case.

Plaintiffs did, in fact, EXHAUST ALL ADMINISTRATIVE REMEDIES

as required to proceed to court.

11  Michell states,

    The remainder of Plaintiffs Response, [Paragraphs 7-14]
  is filled with unrelated pieces of information from various
  sources, suppositions, assumptions, and accusations, all
  apparently designed to challenge the Agency's decision that
  to admit or deny the existence of the Iranian and Libyan
  messages and translations would reveal classified information.
  As discussed in some depth in Defendant's Memorandum, the
  Agency is accorded great deference in the area, and nothing
  Plaintiffs have presented rises to level of evidence to show
  "bad faith" by the Agency in it decision-making process.
  Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).
    In addition, Plaintiffs appear to be claiming that 
  information concerning records of Iranian message traffic
  and translations has been put into the public domain by
  both former President Reagan and various authors or books and
  newspapers.  Plaintiffs bear the burden of "pointing to
  specific information in the public domain that appears to
  duplicate the information withheld." Afshar v. Department of
  State, 702 F2.d 1125, 1130 (D.D.C. 1989).  With regard to 
  classified material pertaining to national security concerns,
  court have held that unofficial leaks and public surmise can
  often be ignored by foreign governments that might perceive
  themselves to be harmed by disclosure; but official 
  acknowledgment may for a government to retaliate. Afshar,
  702 F.2d at 1131.
    Defendant submit that, in this case, all Plaintiffs have 
  done is identify a mishmash of information from various
  public sources, including the Internet, and then claim that
  if it is published in some manner, it must be true.  Such a
  conglomeration of information does nothing to satisfy 
  Plaintiff's burden in this regard.  Plaintiffs cannot point
  to any source which published the documentation which 
  Plaintiffs asserts exists:  NSA intercepted the Libyan message   
  and translations between January 21, 1980 and June 19, 1996.    
  In addition, generalized allegations that classified 
  information has been leaked to the media or otherwise made 
  available to the public will not defeat an Exemption 1 claim 
  under the FOIA. Executive Order 12958 section 1.2 (c); Public 
  Citizen v. Department of State, 11 F.3d 198, 201 (D.C. Cir. 
  1993).

Michell's statement,

  Plaintiffs cannot point to any source which published the 
  documentation which Plaintiffs asserts exists:  NSA 
  intercepted the Libyan message and translations between 
  January 21, 1980 and June 19, 1996.

is clearly false as the following Internet news story

attests.


  NSA, Crypto AG, and the Iraq-Iran Conflict 

                    by J. Orlin Grabbe 

One of the dirty little secrets of the 1980s is that the U.S. 
regularly provided Iraq's Saddam Hussein with top-secret 
communication intercepts by the U.S. National Security 
Agency (NSA). Consider the evidence. 

When in 1991 the government of Kuwait paid the public 
relations firm of Hill & Knowlton ten million dollars to drum up 
American war fever against the evil dictator Hussein, it 
brought about the end of a long legacy of cooperation 
between the U.S. and Iraq. Hill & Knowlton resurrected the 
World War I propaganda story about German soldiers 
roasting Belgian babies on bayonets, updated in the form 
of a confidential witness (actually the daughter of the
Kuwaiti ambassador to the U.S.) who told Congress a tearful 
story of Iraqi soldiers taking Kuwaiti babies out of incubators 
and leaving them on the cold floor to die. President George 
Bush then repeated this fabricated tale in speeches ten times 
over the next three days. 

What is remarkable about this staged turn of events is that, 
until then, Hussein had operated largely with U.S. approval. 
This cooperation had spanned three successive 
administrations, starting with Jimmy Carter. As noted by 
John R. MacArthur, "From 1980 to 1988, Hussein had 
shouldered the burdenof killing about 150,000 Iranians, in 
addition to at least thirteen thousand of his own citizens, 
including several thousand unarmed Kurdish civilians, and in
the process won the admiration and support of elements of 
three successive U.S. Administrations" [1]. 

Hussein's artful slaughter of Iranians was aided by good 
military intelligence. The role of NSA in the conflict is an open 
secret in Europe, the Middle East, and Asia. Only in this 
country has there been a relative news blackout, despite the 
fact that it was the U.S. administration that let the crypto cat 
out of the bag. 

First, U.S. President Ronald Reagan informed the world on 
national television that the United States was reading Libyan 
communications. This admission was part of a speech 
justifying the retaliatory bombing of Libya for its alleged 
involvement in the La Belle discotheque bombing in Berlin's
Schoeneberg district, where two U.S. soldiers and a Turkish 
woman were killed, and 200 others injured. Reagan wasn't 
talking about American monitoring of Libyan news 
broadcasts. Rather, his "direct, precise, and undeniable proof" 
referred to secret (encrypted) diplomatic communication
between Tripoli and the Libyan embassy in East Berlin. 

Next, this leak was compound by the U.S. demonstration that 
it was also reading secret Iranian communications. As reported 
in Switzerland's Neue Zurcher Zeitung, the U.S. provided the 
contents of encrypted Iranian messages to France to assist 
in the conviction of Ali Vakili Rad and Massoud Hendi for 
the stabbing death in the Paris suburb of Suresnes of the 
former Iranian prime minister Shahpour Bakhtiar and his 
personal secretary Katibeh Fallouch. [2] 

What these two countries had in common was they had 
both purchased cryptographic communication equipment from 
the Swiss firm Crypto AG.  Crypto AG was founded in 1952 
by the (Russian-born) Swedish cryptographer Boris Hagelin 
who located his company in Zug. Boris had created the
"Hagelin-machine", a encryption device similar to the German 
"Enigma". The Hagelin machine was used on the side of the 
Allies in World War II. 

Crypto AG was an old and venerable firm, and Switzerland 
was a neutral country. So Crypto AG's enciphering devices for 
voice communication and digital data networks were popular, 
and customers came from 130 countries. These included the 
Vatican, as well the governments of Iraq, Iran, and Libya. Such 
countries were naturally skeptical of cryptographic devices 
sold in many NATO countries, so turned to relatively neutral 
Switzerland for communication security. 

Iran demonstrated its suspicion about the source of the leaks, 
when it arrested Hans Buehler, a top salesman for Crypto AG, 
in Teheran on March 18, 1992. During his nine and a half 
months of solitary confinement in Evin prison in Teheran, 
Buehler was questioned again and again whether he had
leaked Teheran's codes or Libya's keys to Western powers. 
Luckily Buehler didn't know anything.   He in fact believed in 
his own sales pitch that Crypto AG was a neutral company 
and its equipment was the best. They were Swiss, after all. [3] 

Crypto AG eventually paid one million dollars for Buehler's 
release in January 1993, then promptly fired him once they 
had reassured themselves that he hadn't revealed anything 
important under interrogation, and because Buehler had begun 
to ask some embarrassing questions. Then reports appeared on
Swiss television, Swiss Radio International, all the major 
Swiss papers, and in German magazines like Der Spiegel. Had 
Crypto AG's equipment been spiked by Western intelligence 
services? the media wanted to know. The answer was Yes [4]. 

Swiss television traced the ownership of Crypto AG to a 
company in Liechtenstein, and from there back to a trust 
company in Munich. A witness appearing on Swiss television 
explained the real owner was the German government--the 
Federal Estates Administration. [5] 

According to Der Spiegel, all but 6 of the 6000 shares of Crypto 
AG were at one time owned by Eugen Freiberger, who resided 
in Munich and was head of the Crypto AG managing board 
in 1982. Another German, Josef Bauer, an authorized tax 
agent of the Muenchner Treuhandgesellschaft KPMG, and 
who was elected to the managing board in 1970, stated that his 
mandate had come from the German company Siemens. Other 
members of Crypto AG's management had also worked at 
Siemens. Was the German secret service, the 
Bundesnachrichtendienst (BND), hiding behind the Siemens' 
connection? 

So it would seem. Der Spiegel reported that in October 1970, 
a secret meeting of the BND had discussed how the Swiss 
company Graettner could be guided into closer cooperation 
with Crypto AG, or could even merged with it. The BND 
additionally considered how "the Swedish company Ericsson
could be influenced through Siemens to terminate its own 
cryptographic business." [6] 

A former employee of Crypto AG reported that he had to 
coordinate his developments with "people from Bad 
Godesberg". This was the location of the "central office for 
encryption affairs" of the BND, and the service instructed 
Crypto AG what algorithms to use to create the codes. The 
employee also remembers an American "watcher", who 
strongly demanded the use of certain encryption methods. 

Representatives from NSA visited Crypto AG often. A 
memorandum of a secret workshop at Crypto AG in August 
1975, where a new prototype of an encryption device was 
demonstrated, mentions the participation of Nora L. 
Mackebee, an NSA cryptographer. Motorola engineer 
Bob Newman says that Mackebee was introduced to him 
as a "consultant". Motorola cooperated with Crypto AG 
in the seventies in developing a new generation of
electronic encryption machines. The Americans "knew Zug 
very well and gave travel tips to the Motorola people for the 
visit at Crypto AG," Newman told Der Spiegel. 

Knowledgeable sources indicate that the Crypto AG 
enciphering process, developed in cooperation  with the NSA 
and the German company Siemans, involved secretly 
embedding the decryption key in the cipher text. Those who 
knew where to look could monitor the encrypted 
communication, then extract the decryption key that was also 
part of the transmission, and recover the plain text message. 
Decryption of a message by a knowledgeable third
party was not any more difficult than it was for the intended 
receiver. (More than one method was used. Sometimes the 
algorithm was simply deficient, with built-in exploitable 
weaknesses.) 

Crypto AG denies all this, of course, saying such reports are 
"pure invention". 

What information was provided to Saddam Hussein exactly? 
Answers to this question are currently being sought in a 
lawsuit against NSA in New Mexico, which has asked to see 
"all Iranian messages and translations between January 1, 1980 
and June 10, 1996". [7] 

The passage of top-secret communications intelligence to 
someone like Saddam Hussein brings up other questions. 
Which dictator is the U.S. passing top secret messages to 
currently? Jiang Zemin? Boris Yeltsin? 

Will Saddam Hussein again become a recipient of NSA 
largess if he returns to the mass slaughter of Iranians? What 
exactly is the purpose of NSA anyway? 

One more question: Who is reading the Pope's 
communications? 

              Bibliography 

[1] John R. MacArthur, Second Front: Censorship and 
Propaganda in the Gulf War, Hill and Wang, New York, 1992. 

[2] Some of the background of this assassination can be found 
in "The Tehran Connection," Time Magazine, March 21, 1994. 

[3] The Buehler case is detailed in Res Strehle, Verschleusselt: 
der Fall Hans Beuhler, Werd Verlag, Zurich, 1994. 

[4] "For years, NSA secretly rigged Crypto AG machines so 
that U.S. eavesdroppers could easily break their codes, 
according to former company employees whose story is 
supported by company documents," "No Such Agency, Part 4: 
Rigging the Game," The Baltimore Sun, December 4, 1995. 

[5] Reported in programs about the Buehler case that were 
broadcast on Swiss Radio International on May 15, 1994 and 
July 18, 1994. 

[6] "Wer ist der befugte Vierte?": Geheimdienste unterwandern 
den Schutz von Verschlusselungsgeraten," Der Spiegel 36, 
1996. 

[7] U.S. District Court for the District of New Mexico, 
William H. Payne, Arthur R. Morales, Plaintiffs, v. Lieutenant 
General Kenneth A. Minihan, USAF, Director of National 
Security Agency, National Security Agency, Defendant, 
CIV NO 97 0266 SC/DJS. 

November 2, 1997
Web Page: http://www.aci.net/kalliste/

Michell attempts to make a valid argument that withholding of 

intercepted message is proper because they are classified.

Mitchell references EO 12958 1.2,

  c) Classified information shall not be declassified  
  automatically as a result of any unauthorized disclosure of 
  identical or similar information.
  
Plaintiffs continue to believe, classification abuse aside, that

NSA should come clean about it bungled spy sting on Iran

and settle with its victims.  And US courts should not help NSA 

hide.

Clearly NSA getting caught in, according the Baltimore Sun,

the most "audacious" spy sting in its history, spiking crypto 

units so that the crypto key is transmitted with cipher text 

falls under EO 12958, Sec. 1.8. Classification Prohibitions and 

Limitations.

  (a) In no case shall information be classified in order to:
  (1) conceal violations of law, inefficiency, or administrative 
  error;
  (2) prevent embarrassment to a person, organization, or 
  agency;
  (3) restrain competition; or
  (4) prevent or delay the release of information that does not 
  require protection in the interest of national security. ...

Not section 1.2.

Clearly, NSA getting caught is one of the greatest blunders in 

intelligence history fall under 1.8 (1) and (2).  

And also may account for the greatest number of dead victims.

But this is one part of this of this lawsuit. To get a help

get a count of the dead and maimed.

12 Mitchell writes

    Plaintiffs' allegation in the Response at Paragraph 9,
  at 4, that sanctions under the discovery rules might finally
  cause the Agency to produce some of the requested records is   
  fallacious.  This is a FOIA action; the purpose is to   
  determine whether  or not the Plaintiffs are properly in
  Federal Court, and whether or not the documents requested
  have been properly withheld under FOIA law.  It is not 
  appropriate to use the discovery rules contained in the 
  Federal Rules of Civil Procedure to bypass the requirements
  of the FOIA.

Mitchell is incorrect in her statement, " This is a FOIA 

action ..."

This is a LAWSUIT which WILL BE conducted under the Federal 

Rules of Civil Procedure.  Even in New Mexico.

Mitchell attempts to inject the rules of the FOIA into 

the Federal Rules of Civil Procedure.  Plaintiffs will continue

to object.

The Plaintiffs have EXHAUSTED ADMINISTRATIVE REMEDIES and are

in court to obtain documents illegally withheld.  Plaintiffs

will use the tools available, including Discovery, under the

Federal Rules of Civil Procedure to locate and get the 

documents.

Plaintiffs ARE NOT in court to sue about waiver of fees.

13  Mitchell concludes

    Plaintiffs' Response contains no legal support for their
  contention that they are entitled to the requested 
  information.  Contrary to their assertion, the legal citations
  contained Defendant's Memorandum ARE most certainly relevant,
  because they contain the legal basis on which this Court must
  base it decision.  Plaintiffs' Complaint must be dismissed,
  or in the alternative, summary judgment must be granted to
  defendant.

Mitchell cites no legal support for her arguments.  Rather 

Mitchell has UNSUCCESSFULLY ATTEMPTED to make Plaintiffs'

lawsuit into a fee waiver denial lawsuit.  This is not a

fee waiver lawsuit. This is a lawsuit to obtain lawfully

requested documents.
  
			CONCLUSIONS

1  Replace judges Svet and Campos because these judges

have demonstrated, IN WRITING, they do not follow the 

Federal Rules of Civil Procedure.

2  Remove lawyer Mitchell from the lawsuit for criminal 

violation of the False Statement Act. And violation of

the lawyers Rules of Professional Conduct.

Specifically Mitchell's violated in her REPLY 

  In all professional functions a lawyer should be competent,
  prompt, and diligent.


  A lawyer should use the law's procedures only for legitimate
  purposes and not to harass or intimidate other.

  [i]t is also a lawyer's duty to uphold the legal process.

  Failure to comply with an obligation or prohibition imposed
  by rule is a basis for invoking the disciplinary process.
  
  A lawyer shall not bring or defend a proceeding, or assert
  or controvert and issue therein, unless there is a basis for
  doing so that is not frivolous, which includes a good faith
  argument for an extension, modification or reversal of 
  existing law.

  A lawyer shall not knowingly:

  (1) make a false statement of material fact of law to a
  tribunal.

  (4) offer evidence that the lawyer knows to be false.

   A. make a false statement of material fact or law to a third
   person; ...

  16-804.  Misconduct
  C. engage in conduct involving dishonest, fraud, deceit or
  misrepresentation;
  B. commit a criminal act that reflects adversely on the 
  lawyer's honesty, trustworthiness or fitness as a lawyer
  in other respects.

3  Have replacement judges ORDER Defendant to immediately 

produce documents in machine-readable format for publication on 

Internet. 	In preparation for settlement of  this unfortunate 

bungled spy sting.  And analysis of 'deficient' NSA 

cryptographic algorithm work designed to get the US government 

out of the cryptography business.

Respectfully submitted, 
 
 

                    _________________________ 
                    William H. Payne             	   	     
                    13015 Calle de Sandias NE          	     
                    Albuquerque, NM 87111              	     

 
 			    Telephone approval
                    Morales in New Orleans
                    _________________________				 
                    Arthur R. Morales                            
                    1024 Los Arboles NW                         
                    Albuquerque, NM 87107                        
 
                    Pro se litigants 
 
 
               CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that a copy of the foregoing memorandum
was mailed to Lieutenant General Kenneth A. Minihan, USAF, 
Director,  National Security Agency, National Security Agency, 
9800 Savage Road, Fort George G. Meade, MD 20755-6000 
and hand delivered to Jan E Mitchell, Assistant US Attorney, 
525 Silver SW, ABQ, NM 87102 this Friday November 28, 1997. 




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