bill payne (by way of feedback@MediaFilter.org (MediaFilter)) on Fri, 29 May 1998 22:40:42 +0200 (MET DST) |
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[minor formatting fixes and mailer-agent cruft deleted for nettime. -T] FILED UNITED STATE DISTRICT COURT DISTRICT OF NEW MEXICO 98 MAY 28 AM 9:32 Robert March CLERK-ALBUQUERQUE <MIME conversion info deleted> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO William H. Payne ) ) Plaintiff, ) ) v ) CIV NO 97 0266 ) SC/DJS ) National Security Agency ) ) Defendant ) PLAINTIFF'S MOTION TO AMEND Santiago E. Campos MEMORANDUM OPINION AND ORDER FILED May 21 1998 11:35 AND OBJECTION TO IN CAMERA EX PARTE MEETING 1 COMES NOW plaintiff Payne [Payne] to exercise his rights under the Federal Rules of Civil Procedure, Rule 52. Findings by the Court; Judgment on Partial Findings (b) Amendment. On a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings -- or make additional findings -- and may amend the judgment accordingly. ... 2 Plaintiff will show that the Court's [Campos] violates Plaintiff's right guaranteed under the 7th Amendment Constitution . http://www.jya.com/whp052198.htm The associated letter to Campos from JOHN J. KELLY, United States Attorney and JAN ELIZABETH MITCHELL Assistant U.S. Attorney http://www.jya.com/usa052098.htm violates Executive Order 12958, Sec. 1.8. Classification Prohibitions and Limitations http://www.hdsi.com/SP/eo12958.htm. Plaintiff moves to permit Campos to amend ORDER to reflect proper remedy for attempted classification abuse and failure to allow Plaintiff's right under the Constitution. 3 Plaintiff filed DEMAND for jury trial seen on the docket at http://jya.com/whp052298.htm 3/17/97 2 DEMAND for jury trial by plaintiffs (dmw) [Entry date 03/18/97] 4 Plaintiffs [Payne and Morales] have invested hundreds of hours at over $100 per hour in pro se legal fee time in this lawsuit. 5 The 7th Amendment to the Constitution reads Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. http://pacific.discover.net/~dansyr/billrigh.html. This controversy exceeds twenty dollars. And Rule 38. Jury Trial of Right (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate. seen at http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/ query=3D[jump!3A!27rul= e38!27]/doc/{@438}? Plaintiff has not yet had jury trial Plaintiff paid for in lawsuit filing fee. 6 Executive Order 12958 - Classified National Security Information is seen at http://www.hdsi.com/SP/eo12958.htm There are limitations in 12958 on classification abuse. 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. Review of the facts surrounding request of Iran/Iraq war messages reveals A "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." ... "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." http://www.aci.net/kalliste/speccoll.htm B FOR AT LEAST HALF A CENTURY, THE US HAS BEEN INTERCEPTING AND DECRYPTING THE TOP SECRET DOCUMENTS OF MOST OF THE WORLD'S GOVERNMENTS It may be the greatest intelligence scam of the century: For decades, the US has routinely intercepted and deciphered top secret encrypted messages of 120 countries. These nations had bought the world's most sophisticated and supposedly secure commercial encryption technology from Crypto AG, a Swiss company that staked its reputation and the security concerns of its clients on its neutrality. The purchasing nations, confident that their communications were protected, sent messages from their capitals to embassies, military missions, trade offices, and espionage dens around the world, via telex, radio, teletype, and facsimile. They not only conducted sensitive albeit legal business and diplomacy, but sometimes strayed into criminal matters, issuing orders to assassinate political leaders, bomb commercial buildings, and engage in drug and arms smuggling. All the while, because of a secret agreement between the National Security Agency (NSA) and Crypto AG, they might as well have been hand delivering the message to Washington. Their Crypto AG machines had been rigged so that when customers used them, the random encryption key could be automatically and clandestinely transmitted with the enciphered message. NSA analysts could read the message traffic as easily as they could the morning newspaper. The cover shielding the NSA-Crypto AG relationship was torn in March 1992, when the Iranian military counterintelligence service arrested Hans Buehler, Crypto AG's marketing representative in Teheran. http://caq.com/cryptogate C The documents in this lawsuit collect open literature on the effects of US spy sting on Iran. The documents are read at http://jya.com/whpfiles.htm. D Los Angeles Times syndicated columnist writes editorial reprinted in the Albuquerque Journal 4/21/98 page A6 U.S. Aided Communist Foe Pol Pot Richard Reeves E Even after he fell from national power, we helped supply and protect Pol Pot because the Khmer Rouge was tying down large number of occupying North Vietnamese troops. These are some of the names of the evil who were or still are paid friends: o Saddam Hussein, paid for making war on Iran. o Gulbuddin Hekmatry, who made his name throwing acid in the faces of female students in Kabul who dared to wear western dress, paid for making was against communists in Afghanistan. o The Taliban, the religious warriors we helped train to fight communists who are beating or killing those same women right now in Afghanistan. o Manuel Noriega, the soldier-thug we encouraged to overthrow elections in Panama because we did not like the results. o Mobuto Sese Seko, one Joseph Mobutu, our man in Zaire. o Jonas Savimbi, in constant war in Angola The list goes on. It has for a long time and will, even if communism is dead as a national security threat of the United States. In may of these cases our interest involved resources - oil, usually, ... Conclusion: Z Apparent hiring of Saddam Hussein to make war on Iran may (1) conceal violations of law, inefficiency, or administrative error; Law that may have been broken is =A7 2381. Treason Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. http://www.law.cornell.edu:80/uscode/18/2381.shtml for possibly not obtaining congressional approval. Y NSA getting caught in it most "audacious" [Baltimore Sun word] spy sting, partially as a result of former President Ronald Reagan blowing the whistle on NSA on TV, is clearly embarrassing. Documents cannot be classified to (2) prevent embarrassment to a person, organization, or agency; X Information about what the US government did to Iran in has been broadcast around the world on Internet. Therefore, the requested documents cannot be classified because (4) prevent or delay the release of information that does not require protection in the interest of national security. Everyone in the world, with the possible exception of many US citizens, know that the US did to Iran. 7 NSA gave Sandia National Laboratories "deficient" crypto-type algorithms and bad implementation advice. This is documented in the whistleblowing SAND report seen at http://jya.com/whpfiles.htm. Also revealed is the feedback functions of nonlinear feedback shift registers and the stepping value is classified SECRET in the UNCLASSIFIED SAND report. Attempting to classify mathematical functions violates articles 2 and 4 in section 1.8 of EO 12958. 8 Mitchell writes in http://www.jya.com/usa052098.htm Because of the nature of the classified material, the in camera review may be different from prior reviews of classified documents made by this Court. There, by 7, are no properly classified documents in this case. Only an attempt by government to cover up embarrassing, if not illegal, activitie= s. 9 Mitchell writes I reference your Memorandum Opinion and Order dated April 30, 1998, in which you requested that the Defendant provide an in camera ex parte declaration or detailed affidavit concerning its "Glomar response" to Mr. Payne's FOIA request >From http://www.jya.com/glomar-foia.htm "Glomar" response -- that is, when an agency refuses to even confirm or deny the existence or nonexistence of records. The courts have allowed agencies to provide a Glomar response when the agency demonstrates that disclosing the fact of a record's existence or nonexistence itself reveals information that a FOIA exemption seeks to protect. . . . Anyone IN THE WORLD who cares to know what happened to Iran can read about it on Internet.. 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]" http://www.aci.net/kalliste/speccoll.htm Or that NSA uses feedback shift registers for its crypto algorithms. http://www.jya.com/crack-a5.htm Glomar is not applicable in this lawsuit because EXISTENCE of the documents ARE KNOWN. 10 Mitchell writes Because the declaration will be classified, counsel for the National Security Agency, who holds a security clearance for this information, will travel to Santa Fe to present the declaration to the Court, in camera and ex parte. Plaintiff objects that any in camera ex parte violates the principle of open courts in the US and is not required because the general existence of the documents are publicly known and not classifiable under EO 12958. 11 Mitchell writes It is my understanding from my discussions with Susan A. Arnold, Assistant General Counsel from the Office of General Counsel, National Security Agency (NSA), Fort Meade, Maryland, that because of the classified nature of the document, you will be the only person authorized access to the declaration unless another individual on your staff possesses a security clearance commensurate with the highest level of classification of the material of the declaration. Judge Campos currently has a yet-unanswered criminal complaint affidavit lodged against him. http://www.jya.com/whpscalia.htm Therefore, it is doubtful that Campos qualifies for any proper US security clearance. 12 Mitchell writes NSA anticipates that the classification level will be TOP SECRET (TS), Sensitive Compartmented Information (SCI), CODEWORD. This necessarily means, as the Court pointed out at footnote 20 of the memorandum, that Plaintiff in this case may not be present and may not have access to the declaration. Plaintiff had Q clearance, SCI access, and cryptographic access while he was employed at Sandia and, therefore, should be able to view any declaration. Plaintiff objects to not being able to very any documents and challenges under EO 12958 Sec. 1.9. Classification Challenges. (a) Authorized holders of information who, in good faith, believe that its classification status is improper are encouraged and expected to challenge the classification status of the information in accordance with agency procedures established under paragraph (b), below. (b) In accordance with implementing directives issued pursuant to this order, an agency head or senior agency official shall establish procedures under which authorized holders of information are encouraged and expected to challenge the classification of information that they believe is improperly classified or unclassified. These procedures shall assure that: (1) individuals are not subject to retribution for bringing such actions; (2) an opportunity is provided for review by an impartial official or panel; and (3) individuals are advised of their right to appeal agency decisions to the Interagency Security Classification Appeals Panel established by section 5.4 of this order. Copy of this MOTION sent to DIR NSA Minihan is the request for classification review of any documents or statement which may be given to Campos. 13 Campos writes The Court reminds Plaintiff of his obligations under Federal Rule of Civil Procedure 11 and applicable case law. Motions, pleadings, or other papers are not be presented to the Court to harass, to cause unnecessary delay, or for any other improper purpose. Under rule 11, by presenting a motion, pleading, or other paper to the Court, Plaintiff is also certifying that his claim or other legal contentions made therein are warranted by existing law, have evidentiary support, or are otherwise nonfrivolous. Violation of Rule 11 can result in sanctions. Campos paragraph is a clear attempt to threaten Plaintiff for Plaintiff's exercise of his Constitutional rights. 14 An issue in this lawsuit is whether US government and federal court system is to be operated as a DEMOCRACY - government by the people or FASCISM - a political and economic movement, strongly nationalistic, magnifying the rights of the state as opposed to those of the individual, in which industry, though remaining largely under private ownership, and all administrative political units, are controlled by a strong central government. where abuse of classification of is used to promote cryptographic business interests of NSA, NIST and the FBI. And whether classification abuse can be used to attempt hide likely-unlawful military attacks on foreign countries initiated by bureaucrats without congressional approval. Therefore, Plaintiff demands his right guaranteed by the Constitution and Federal Rules of Civil Procedure in this democratic country to present arguments to an impartial jury and judge for release of the lawfully requested documents under the FOIA in preparation for settlement of this American tragedy. WHEREFORE Plaintiff moves for Campos to amend MEMORANDUM OPINION AND ORDER which currently reads NOW, THEREFORE, IT IS ORDERED that Plaintiff's Motion to Amend should be, and is hereby, DENIED. [Signature: Santiago E. Campos] SENIOR UNITED STATES DISTRICT JUDGE to read 14 Santiago Campos disqualifies himself under 28 USC =A7 455. Disqualification of justice, judge, or magistrate (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ... from further participation in case CIV NO 97 0266, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO for denying Plaintiff's Constitutional right to Trial by Jury and attempting to threaten Plaintiff with sanctions for Plaintiff's exercising civil right guaranteed under the Constitution. Respectfully submitted, William H. Payne 13015 Calle de Sandias NE Albuquerque, NM 87111 Pro se litigant 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, 9 Floor, US Bank Building, 4th and Tijeras, ABQ, NM 87102 this Thursday May 28, 1998. --- # distributed via nettime-l : no commercial use without permission # <nettime> is a closed moderated mailinglist for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo@desk.nl and "info nettime-l" in the msg body # URL: http://www.desk.nl/~nettime/ contact: nettime-owner@desk.nl