The James Bamford FOIA Classification Dispute

In 1979, the NSA described a Justice Department FOIA release as having ‘effectively declassified’ the information. Two years later, the Department treated material held by James Bamford as classified and demanded its return.

The FOIA Release

In March 1978, the National Security Agency recorded learning that journalist James Bamford was working on a book when it received the first of eleven Freedom of Information Act requests from him.

During 1978 and 1979, the US Department of Justice released approximately 250 pages to Bamford. He later told Congress that the material had gone through a ten-month review by the Department’s special litigation unit before being released.

Among the records were documents concerning Justice Department inquiries into CIA and NSA-related surveillance. Bamford also obtained a draft prosecutive summary dated 4 March 1977 and marked ‘Top Secret’.

The precise administrative history of that disclosure cannot presently be reconstructed. The exact release date, FOIA case reference and original release record have not been located. Without them, the surviving record does not establish which office authorised the release, how it recorded the classification status of the documents or what reasoning accompanied the decision.

NSA Objects in 1979

On 20 August 1979, NSA Director Admiral Bobby Inman wrote to Attorney General Benjamin Civiletti about what he described as the Justice Department’s ‘unilateral release’ of the material.

Inman’s objection contained an important description of the release’s effect. As quoted in MuckRock’s reporting of the declassified letter, Inman wrote that the Department had ‘effectively declassified the information and made it impossible to withhold from further public disclosure’.

That description came from the agency objecting to the release, not from Bamford.

A later NSA briefing to the Senate Select Committee on Intelligence recorded that no response to Inman’s letter was received. No Justice Department legal response from 1979 has been located that shows whether the Department accepted, rejected or qualified the NSA director’s description of what the FOIA release had done.

The documentary trail resumes in 1981, when the NSA sought to recover the material.

The 1981 Recovery Attempt

On 3 April 1981, the NSA wrote to Attorney General William French Smith. The letter, Serial N0375, asked that Justice Department officials contact Bamford immediately to retrieve the document released to him under FOIA and any copies he had made.

The NSA also asked that Bamford be warned about possible criminal consequences. Its letter cited 18 U.S.C. §§ 793 and 798 and stated that retaining or disclosing the information could expose him to prosecution.

By July, the dispute had moved from correspondence between agencies to direct contact with Bamford.

Bamford later described Justice Department contacts on 8 July, 23 July and 14 August 1981. Meetings involved NSA General Counsel Daniel Schwartz and NSA Director of Policy Eugene Yeates. Bamford said the espionage statute was raised during those discussions.

His later sworn testimony was more explicit. Appearing before a House Judiciary subcommittee in November 1983, he said officials had threatened to use the espionage statute against him if he continued refusing to return the documents.

The surviving government record confirms that prosecution under the espionage statutes was being considered. It does not, by itself, establish the precise wording used in every meeting with Bamford.

Justice Department Position in 1981

The clearest reviewed account of the Justice Department’s formal position concerns a registered letter sent on 24 September 1981 by Gerald Schroeder, a senior attorney in the Department’s Office of Intelligence Policy and Review.

Bamford later quoted Schroeder as telling him that he was ‘currently in possession of classified information that requires protection against unauthorised disclosure’ and demanding its return. Abel’s later account describes the same demand.

The original September letter has not been located, so its wording is known through Bamford’s account and later descriptions.

Two months later, according to Abel’s account of correspondence with Bamford’s lawyer, Mark Lynch, the Department maintained the same position. On 27 November it stated that Bamford held information that was ‘currently and properly classified’ and referred to the possibility of a ‘post-publication judicial remedy’.

Those statements sit alongside the NSA’s description from August 1979. At that point, Inman had written that the Justice Department release had ‘effectively declassified’ the information and made further withholding impossible.

No internal Justice Department legal memorandum has been located explaining the relationship between the NSA’s 1979 description and the Justice Department’s 1981 position.

Nor has the original FOIA file been located to show whether the Department considered the disclosure itself to have formally declassified the material, improperly released still-classified information or done something else.

Public Disclosure

By March 1982, the attempt to recover the papers was no longer confined to Bamford and the agencies.

Judith Miller reported the dispute in the New York Times on 14 March under the headline ‘U.S. Is Demanding Return of Papers’. The article is identified and described in later legal scholarship, but the original newspaper report has not been directly reviewed here. Its additional wording and detail therefore cannot be relied upon beyond what is preserved in the reviewed material.

Reclassification Rules Change

Executive Order 12065, signed by President Jimmy Carter on 28 June 1978, governed classification during at least part of the period in which the Justice Department released the material to Bamford.

Section 1-607 stated that classification could not be restored to documents already declassified and released to the public.

President Ronald Reagan signed Executive Order 12356 on 2 April 1982. The new order permitted reclassification of information that had previously been declassified and disclosed where the information ‘may reasonably be recovered’.

The Justice Department had already demanded Bamford’s documents in September and November 1981. The dispute was reported in the New York Times on 14 March 1982. Executive Order 12356 followed on 2 April.

No reviewed document states that the Bamford dispute caused the change, prompted it or formed part of the drafting purpose behind the new provision.

What remains missing is the Justice Department’s own legal analysis from 1979 to 1981. Without it, the records do not show whether officials regarded the original release as valid declassification, an unauthorised disclosure of classified material or some other category capable of supporting the later demand.

Publication and the Limits of Prosecution

Bamford did not return the material.

His book, The Puzzle Palace, was published in 1982. The sources consulted disagree on the exact publication date, giving 1 August and 19 September. Neither date is required to establish what happened next.

On 23 September 1982, the NSA prepared a briefing for the Senate Select Committee on Intelligence. Its description of the government’s actions was unusually plain: there had been ‘a fairly intensive, but unsuccessful, effort to prevent the publication’.

The same briefing recorded a limit on the criminal case. According to the NSA account, the Justice Department concluded that it could not prove the ‘criminal intent necessary for a conviction’.

Bamford was not prosecuted.

Source Box

Sources include: declassified NSA correspondence, including Serial N0375 of 3 April 1981 and the September 1982 briefing to the Senate Select Committee on Intelligence; James Bamford’s sworn testimony in the 1983 House Judiciary hearing ‘1984: Civil Liberties and the National Security State’; James Bamford’s first-hand account ‘The NSA and Me’; Kathryn Abel’s 2015 University of Pennsylvania Law Review article ‘Do You Have to Keep the Government’s Secrets?’; MuckRock’s reviewed reporting quoting the declassified 20 August 1979 letter from NSA Director Bobby Inman; Executive Order 12065 of 28 June 1978 and Executive Order 12356 of 2 April 1982; and Judith Miller’s 14 March 1982 New York Times article ‘U.S. Is Demanding Return of Papers’, identified through reviewed legal scholarship but not directly reviewed by Veriarch.