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2014-03-25

Exclusive: NSA, FBI, DIA Sued over Refusal to Disclose U.S. Role in Imprisonment of Nelson Mandela

Guests

Ryan Shapiro, known as a "FOIA superhero" for his skill at obtaining government records using the Freedom of Information Act. He is suing several federal agencies, including the NSA, for their failure to comply with FOIA requests regarding former South African President Nelson Mandela. Shapiro is also a Ph.D. candidate at Massachusetts Institute of Technology, where he has received tens of thousands of FBI files on the animal rights movement while doing research for his dissertation, titled "Bodies at War: Animals, Science, and National Security in the United States."

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In a Democracy Now! exclusive, one of the nation’s most prolific transparency activists, Ryan Shapiro, reveals he is suing the NSA, FBI and Defense Intelligence Agency in an attempt to force them to open their records on one of the country’s greatest secrets: how the U.S. helped apartheid South Africa capture Nelson Mandela in 1962, leading to his 27 years in prison. The U.S. has never confirmed its involvement, but details have leaked out over the years. Shapiro already has a pending suit against the CIA over its role in Mandela’s capture and to find out why it took until 2008 for the former South African president to be removed from the U.S. terrorist watch list. The NSA has already rejected one of Shapiro’s requests for its information on Mandela, citing "national defense."

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn now to a Democracy Now! exclusive involving the National Security Agency and Nelson Mandela. Today, one of the leading transparency activists in the United States has turned his attention to one of this country’s greatest secrets. Ryan Shapiro has just filed a lawsuit this morning against the NSA, the FBI and the Defense Intelligence Agency in an attempt to force the agencies to release documents about the U.S. role in the 1962 capture and imprisonment of Nelson Mandela, the late South African president and anti-apartheid leader.

The United States has never confirmed its involvement, but details have leaked out over the years. In 1990, the Cox News Service quoted a former U.S. official saying, within hours after Mandela’s arrest, a senior CIA operative named Paul Eckel admitted the agency’s involvement. Eckel was reported as having told the official, quote, "We have turned Mandela over to the South African security branch. We gave them every detail, what he would be wearing, the time of day, just where he would be. They have picked him up. It is one of our greatest coups," unquote. Several news outlets have reported the actual source of the tip that led to the arrest of Mandela was a CIA official named Donald Rickard. Mandela was held for 27 years after he was captured.

Ryan Shapiro already has a pending suit against the CIA over its role in Mandela’s capture and to find out why it took until 2008 for Mandela to be removed from the U.S. terrorist watch list. So far, no government agency has opened its secret records on Mandela. The NSA has already rejected one of Shapiro’s requests for its information on Mandela, citing, quote, "national security."

Over the past decade, Ryan Shapiro has become a leading freedom of information activist, unearthing tens of thousands of once-secret documents. His work focuses on how the government infiltrates and monitors political movements, in particular those for animal and environmental rights. Today, he has around 700 Freedom of Information Act requests before the FBI, seeking around 350,000 documents. That tenacity has led the Justice Department to call him the "most prolific" requester there is—in one year, two per day. It has also led the FBI to dub his academic dissertation a threat to national security.

Ryan Shapiro, welcome to Democracy Now!

RYAN SHAPIRO: Thank you so much for having me. It’s a real honor.

AMY GOODMAN: So, let’s start with Nelson Mandela.

RYAN SHAPIRO: All right.

AMY GOODMAN: Talk about why you have applied for this information.

RYAN SHAPIRO: Sure. So, I’m pursuing these records mostly because I’m interested in knowing why the U.S. intelligence community viewed Mandela as a threat to American security and what role the U.S. intelligence community played in thwarting Mandela’s struggle for racial justice and democracy in South Africa. As you said, I’m especially interested in records pertaining to the U.S. intelligence community’s role in Mandela’s 1962 arrest and Mandela’s placement on the U.S. terror watch list until 2008, which was years after he had won not only the Nobel Peace Prize, but the U.S. Congressional Gold Medal and U.S. Presidential Medal of Freedom.

AMY GOODMAN: Not to mention, he was the president of South Africa.

RYAN SHAPIRO: Yes, yes.

AMY GOODMAN: So all through that period, he was considered a terrorist by the United States.

RYAN SHAPIRO: Yes, he was.

AMY GOODMAN: I want to turn to journalist Andrew Cockburn, who first reported on the CIA link to Nelson Mandela’s arrest in 1986 in The New York Times. He’s now the Washington editor for Harper’s magazine. We interviewed him in December, and I asked him to talk about what he had found out in the mid-’80s. At this point, Nelson Mandela had been in prison for over 20 years.

ANDREW COCKBURN: He had been—I found out—I reported that he had been—as you mentioned, that he had been arrested, thanks to a tip from the CIA, while disguised as a chauffeur. He was actually—what I had heard at the time was he was actually on his way to meet an undercover CIA, an American diplomat who was actually a CIA official. So it made it rather easy for them to alert the South Africans where to find him.

I mentioned—I thought it was particularly interesting to report when I did in 1986, because at that point it was just when the sanctions were being introduced over—voted through by the Congress over President Reagan’s veto. So, and I had noticed that in the sanctions legislation, it said there should be no contact, official contact, with the South African military, and so on and so forth, except when intelligence required that, you know, they did have to have contact. So it was ongoing, this unholy relationship, which had led to Mandela being arrested and locked up for all those years, continued on through the ’60s, through the ’70s, through the ’80s, absolutely flourished, with the—for example, the NSA routinely handing over intercepts of the ANC to the South African secret police. ...

U.S. military intelligence cooperated very closely with South African military intelligence, giving them information about what was going on, what they were collecting in the rest of southern Africa. And, in fact, you know, the two countries—CIA and the South Africans collaborated on, you know, assisting the UNITA in the horrible civil war in Angola that went on for years and years with thousands of people dying. So, you know, this wasn’t just a flash in the pan, the tip-off that led to the coordination on the arrest of Mandela. It was absolutely a very deep, very thorough relationship that went on for decades.

AMY GOODMAN: That was journalist Andrew Cockburn. I now want to read from the letter the NSA sent to Ryan Shapiro in response to his Freedom of Information Act request for records on Nelson Mandela. The letter is dated December 31st, 2013, just a few months ago. It reads, in part, "To the extent that you are seeking intelligence information on Nelson Mandela, we have determined that the fact of the existence or non-existence of the materials you request is a currently and properly classified matter." The letter continues, quote, "the 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," end-quote. And it cites another statute: "Title 18 U.S. Code 798." Ryan Shapiro, explain.

RYAN SHAPIRO: Well, that next code is the Espionage Act of 1917. And as you’ve discussed many times on this show, this is the same odious law under which Chelsea Manning was convicted, Edward Snowden is facing charges, and Daniel Ellsberg was prosecuted for leaking the Pentagon Papers.

AMY GOODMAN: So, how do you get around the fact that you’ve been denied? Today, as we go to air, you filed this—a new FOIA with NSA. What changed in your request?

RYAN SHAPIRO: Well, today I filed a lawsuit against the NSA, FBI, DIA and CIA due to their failure to comply with the Freedom of Information Act. They are in violation of federal law, and so I’m suing them to hold them accountable to federal law. What changed is that they failed to comply with law, and so I’m suing them to hold them accountable.

How do we get around it? That’s a very—that’s a great question and a very tough one. The NSA is a very difficult nut to crack as far as FOIA is concerned. Not only does the NSA invoke national defense here, as well as the Espionage Act, they also invoke the NSA Act of 1959, which—though the NSA Act of 1959 was passed years before the Freedom of Information Act was passed, the NSA has succeeded in convincing the courts that the NSA Act of 1959 exempts the NSA entirely from the obligations of FOIA. And so, the only times the NSA complies with the Freedom of Information Act is when it wants to, which is when the release of records will make the NSA look good, and it should therefore be unsurprising that the recent AP report found that the NSA failed to comply with the—or, denied FOIA requests 98 percent of the time last year.

AMY GOODMAN: How are they in violation of the law?

RYAN SHAPIRO: Well, my FOIA attorney, Jeffrey Light, who is a D.C.-based FOIA specialist, will be arguing in part that Exemption 3 does not apply here, that in fact the NSA is wrong in arguing that the NSA Act exempts the agency entirely from FOIA. The NSA also failed to conduct an adequate search for records responsive to my request. And, perhaps most basically, they’re not—they’re not refusing to release records; they’re saying that it would violate national security to even confirm or deny the existence of records. And whether or not the release of records might violate national security, my attorney and I intend to argue that simply confirming the existence or denying the existence of the records is—would certainly be within the bounds of the Freedom of Information Act.

AMY GOODMAN: I wanted to turn to President Obama. Following Nelson Mandela’s death last year, President Obama referenced Mandela’s time in jail during his speech at the memorial.

PRESIDENT BARACK OBAMA: He would endure a brutal imprisonment that began in the time of Kennedy and Khrushchev, and reached the final days of the Cold War. Emerging from prison, without the force of arms, he would, like Abraham Lincoln, hold his country together when it threatened to break apart.

AMY GOODMAN: While Obama referenced the Kennedy administration in his memorial, he made no mention of the multiple reports that the CIA, under Kennedy, tipped off the apartheid South African regime in 1962 about Mandela’s whereabouts. Now I want to go—fast-forward to 1990. Nelson Mandela had been released from jail. Four months after his release, Nelson Mandela traveled to the United States. He spoke at Yankee Stadium, where he was introduced by Harry Belafonte.

HARRY BELAFONTE: Never in the history of humankind has there ever been a voice that has more clearly caught the imagination and the spirit and fired the hope for freedom than the voice of the deputy president of South Africa, Nelson Mandela.

NELSON MANDELA: The principle of "one person, one vote" on a common and non-racial voters’ roll is therefore our central strategic objective. Throughout our lifetime, we have fought against white domination and have fought against black domination. We intend to remain true to this principle to the end of our days.

AMY GOODMAN: That was Nelson Mandela, the former president of South Africa, speaking at Yankee Stadium four months after his release from prison in South Africa. He came to the United States to thank those who had fought for his freedom. That clip is taken from Danny Schechter’s film Mandela in America. Ryan Shapiro, we’re going to move on in our next segment to talk about other cases you’re involved with, but why is this so important to you? And also, talk about the latest news we have of President Obama seeking limits for the NSA.

RYAN SHAPIRO: Why is this so important to me? I want to know why. Nelson Mandela is now almost universally hailed as a tremendous freedom fighter, this heroic figure, and yet the United States actively suppressed his movement, was very likely involved in putting him in prison for decades, and supported both covertly and openly the apartheid state until near its end. Why? And the answer has to do with this blinkered understanding of national security, this myopic understanding that places crass military alliances and corporate profits over human rights and civil liberties. And I’m interested in—I’m interested in highlighting how we as a nation need to foster a broader understanding of national security. And I think by trying to get records on why Nelson Mandela was on the U.S. terror watch list until 2008 is a good opportunity to do that.

AMY GOODMAN: And President Obama today announcing changing rules, not that those rules will affect your lawsuit?

RYAN SHAPIRO: That’s right. Those rules will not affect my lawsuit. Obama’s proposal offers some improvements, although only about one surveillance program and only limited portions thereof. But even more problematically, Obama’s proposal offers no mechanism for transparency or serious oversight. Remember that the only reason we know about this program to begin with is the Snowden revelations, and that the director of national intelligence even lied to Congress about it. And now Obama is offering or proposing a few changes and then asking us to trust the same people who have been spying on us and lying to us in the first place. And we’re still left with a secret spy agency, operating secret surveillance programs, obtaining secret permission from secret courts. There’s just no mechanism for transparency. Indeed, as I was just saying, the NSA believes it’s entirely exempt from the Freedom of Information Act. There’s just no transparency. How can we trust an agency we aren’t allowed to know anything about, especially an agency with this sort of track record?

AMY GOODMAN: Has the NSA ever been successfully sued?

RYAN SHAPIRO: I am unaware of any successful lawsuits against the NSA—any FOIA lawsuits against the NSA. I don’t know that there are none, but I am not aware of any. Very few have tried.

AMY GOODMAN: Ryan Shapiro, we’re going to continue with you after break, talk about other issues that you’ve been involved with, trying to get information from the U.S. government. Ryan Shapiro has been called a "FOIA superhero" for his skill at obtaining government records using the Freedom of Information Act. We’ll see if he will be successful in his lawsuit against the U.S. government, the NSA, the FBI, the DIA, in getting documents around the imprisonment of Nelson Mandela. Again, the NSA letter that I just read said, though it wouldn’t confirm the existence or nonexistence of the materials, that they are "currently and properly classified matter." This is Democracy Now! Back with Ryan Shapiro in a minute.

[break]

AMY GOODMAN: We continue with our interview with Ryan Shapiro, who the Justice Department calls the FBI’s "most prolific" Freedom of Information Act requester. Well, if governments have always been notoriously secretive, new figures show Shapiro is fighting an especially uphill battle under President Obama. The Associated Press reports that last year the Obama administration censored more government files than ever before under the U.S. Freedom of Information Act. It also cited more legal exceptions to justify withholding materials. Amidst intense public interest in surveillance programs, the government cited national security reasons for withholding information a record 8,496 times, more than double Obama’s first year. The AP said it could not determine whether the denials amounted to an abuse of the exception or whether the public had simply asked for more documents about sensitive subjects. The NSA said it saw a 138 percent surge in records requests from people asking whether it had collected their phone or email records, which it generally refuses to confirm or deny, saying such requests pose an "unacceptable risk" because terrorists could check to see whether the U.S. had detected their activities. Your response, Ryan Shapiro?

RYAN SHAPIRO: I’m in total agreement with the AP report. Though President Bush initiated a disastrous welter of anti-transparency iniatives, President Obama has been, if anything, worse, including bringing more Espionage Act prosecutions of whistleblowers than all previous administrations combined and, as you just said, the new AP report showing invoking national security more than ever before to censor or deny FOIA requests.

AMY GOODMAN: I wanted to turn to Leonard Downie Jr., the former executive editor of The Washington Post, who spoke to us about the excessive secrecy detailed in his report titled "The Obama Administration and the Press," which was commissioned by the Committee to Protect Journalists.

LEONARD DOWNIE JR.: First, there’s too much that’s classified. The president himself has said repeatedly in the past that too much information is classified. It’s not just information that might be harmful to national security or human life; it’s just lots and lots, millions and millions and millions of documents and pieces of information that are classified that shouldn’t be. Obviously that preceded this administration, but it’s not improved during this administration.

The president promised to have the most transparent government in American history. He promised to reduce overclassification. He promised to make it easier to obtain government information through the Freedom of Information Act. And so far, none of these promises have been kept. So, part of the reason for why I agreed to do this report for the Committee to Protect Journalists is I would like to alert the president to the fact that this is one of the most—this is one of the first promises he made. He signed presidential directives about open government his first day in office. These are not being carried out by his administration. He still has time for his legacy to make good on these promises.

AMY GOODMAN: That’s Leonard Downie, formerly with the—the former executive editor of The Washington Post. Your response to that, Ryan Shapiro?

RYAN SHAPIRO: Absolutely. We are experiencing a crisis of secrecy. And as historian of science Peter Galison at Harvard had shown, the amount—the universe of classified information now far exceeds the universe of nonclassified information. And, yes, President Obama, on day one, promised to be a real advocate for FOIA, and it’s just the opposite of what we’ve seen. I mean, it’s just—absolutely.

AMY GOODMAN: How do you go about filing these FOIA requests—you known as the "FOIA superhero"?

RYAN SHAPIRO: Well, I mean, filing, itself, is a fairly easy process. One can just put a request in an envelope and send it off, or even email it. The problem is sending a request that’s going to produce documents. The FBI is flatly allergic to the Freedom of Information Act, and it is fair to say it does everything within its power to avoid compliance with the Freedom of Information Act. So, it’s very easy to send a request saying, "I want all records pertaining to X," and one will get a letter saying, "No, we couldn’t find anything." And so, exactly how the FBI gets away with this—because it is a violation of the Freedom of Information Act—how the FBI gets away with this has been unclear, because while the CIA and the NSA have statutorily exempted themselves in large part from the Freedom of Information Act, the FBI hasn’t been able to do that nearly as successfully. And so, they’ve developed an unknown number, but dozens of strategies for avoiding compliance with the act.

AMY GOODMAN: So, when they say, "We can’t detect any files," but you know there are files, what do you do?

RYAN SHAPIRO: Well, the letter doesn’t say—the letter doesn’t—the denial letter doesn’t say they don’t have files; it says, "We are unable to locate them." And what it’s really saying is: "We looked in one place for one type of record, using one type of search, and we couldn’t find anything." And what they’re not telling you is that, in most cases, that’s not the type and place and search methodology necessary to locate the responsive records.

AMY GOODMAN: So how do you push further?

RYAN SHAPIRO: Well, over the past five or six years, I have submitted hundreds of FOIA requests to the FBI. And each request, of course, was designed to produce responsive records, but it was also designed to see how the FBI was going to respond. And I would compare their responses, denials and successful letters, to see—to try and map out what it was that the FBI was doing, the various FBI strategies for failing to comply. I would also read declarations submitted by the FBI in court about how their databases worked and how their information retrieval systems worked. And I would submit FOIA requests about my FOIA requests. And now the FBI is refusing to process those. And I’m also suing the FBI for their failure to process my FOIA requests about my FOIA requests.

AMY GOODMAN: What are privacy waivers?

RYAN SHAPIRO: FOIA has nine exemptions. There are nine legitimate reasons, according to the Freedom of Information Act, that an agency may withhold a record or a portion thereof. And, you know, part of those—one of those exemptions—or, several of those exemptions deal with privacy issues. And this is totally reasonable. It seems totally reasonable that I can’t just request your FBI record without your consent. However, the FBI routinely abuses this privacy privilege and—or this privacy exemption, to redact massive amounts of information that should not be redacted. And so, one of the things I’ve done in order to map out the nature and evolution of the FBI’s understanding and handling of the animal rights movement has been to collect privacy waivers, so basically letters from activists saying that I’m allowed to request their FBI files, from roughly 300 leading animal rights activists from the 1970s to today.

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