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The
War Profiteers - War Crimes, Kidnappings & Torture |
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CIA Lawsuits: Franz Boening vs. Central
Intelligence Agency |
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“[…] Plaintiff Franz Boening, a former employee of the
defendant Central Intelligence Agency for nearly three decades, internally
challenged the CIA with a legal, factual and moral dilemma by calling upon it
to publicly come clean about it’s alleged relationship with a foreign
national who held a senior position with another Government and was revealed
to be a human rights violator and criminal. This case revolves around a
single document: a 25-page memorandum dated May 10, 2001 and its attachments.
Boening’s concerns about arose not from any classified work he had performed,
or as a result of classified files he had reviewed (or even heard through
hallway gossip), but were entirely derived from his reading of publicly
available newspaper and magazine articles that described the relationship.
[…]” Excerpt
of a court filing from
November 19th, 2007. |
Aerial photo of the CIA headquarters |
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August 4th, 2009 - CIA Whistleblower
Complaint Declassified 1 news article
from Secrecy News March 8th, 2007 - Lawsuit: CIA Censored
Whistleblower 1 news article by
United Press International |
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February 13th, 2009 - The Montesino-CIA Affair Letter &
Memorandum by the Central Inteligence Agency “[…] This unclassified memorandum, (accompanied by
one brief classified and two unclassified annexes), constitutes an urgent concern
under Title Seven (‘the Whistleblower Provisions,’ sections 701 and 702) of
the 1999 Intelligence Authorization Act. I wish to call to your attention
several very serious issues, including possible violations of US laws,
related to CIA’s alleged operational relationship with Vladimiro Lenin Montesinos-Torres.
a Peruvian national[.] You will recall that Montesinos, until his forced
resignation and flight i[n] September 2000, was the alter-ego and overall intelligence
advisor to ousted Peruvian President Alberto Fujimori. According to various
press accounts, Montesinos was also CIA’s ‘special friend’ within the
Peruvian Government. […] He has since been accused of a variety of crimes in
Peru, among them narcotics and weapons trafficking, moneylaundering, extortion,
bribery, murder, and torture. […] “I allege that: CIA may have violated US laws during
its 10+ year relationship with Montesinos (paragraph five); CIA’s
professional behavior was so scandalous that it seriously damaged American
prestige and credibility (paragraph six); the relationship continued because
of an egregious counterintelligence failure (paragraph eight); […]” Franz Boening vs. Central Intelligence
Agency U.S. District Court for the District of
Columbia No. 1:07-cv-00430-EGS Action filed: March 5th, 2007 September
30th, 2008 - Order &
Memorandum Opinion April
22nd, 2008 - Reply
to Defendant’s Opposition to Plaintiff’s Renewed Cross-Motion March
21st, 2008 - Defendant’s
Reply in Support of Renewed Motion to Dismiss March
10th, 2008 - Reply
to Defendant’s Opposition to Plaintiff’s Motion to Compel Defendant March
10th, 2008 - Response
to Defendant’s Local Rule Statement of Material Facts January
31st, 2008 - Minute Order January
11th, 2008 - Opposition
to Plaintiff’s Motion to Compel and Renewed Motion to Dismiss November
28th, 2007 - Order November
19th, 2007 - Opposition
to Defendant’s Motion To Dismiss and for Summary Judgment July
20th, 2007 - Defendant’s
Motion to Dismiss and for Summary Judgment July
13th, 2007 - Declaration of Scott A.
Koch May 2nd,
2007 - Minute Order March
5th, 2007 - Complaint September 30th, 2008 - Order & Memorandum Opinion “[…] Pending before the Court is Plaintiff’s Motion
to Compel, Plaintiff’s Motion for Summary Judgment or in the Alternative for
Discovery, and Defendant’s Motion to Dismiss and for Summary Judgment. Upon
consideration of the Motions, the Responses and Replies thereto, the
applicable law, the entire record and this Court’s in camera review of the
document in question, and for the reasons stated in the accompanying Memorandum
Opinion also issued this day, “It is hereby ordered that Plaintiff’s Motion to
Compel is denied; “And it is further ordered that Plaintiff’s Motion
for Summary Judgment or in the Alternative for Discovery is denied; “And it is further ordered that Defendant’s Motion
to Dismiss Plaintiff’s APA claims is granted; “And it is further ordered that Defendant’s Motion
for Summary Judgment is granted without prejudice to a Motion for
Reconsideration by Plaintiff should he receive an adverse decision after resubmitting
his document to the CIA’s Publication Review Board with adequate citations.
[…]” April 22nd, 2008 - Reply to Defendant’s Opposition to Plaintiff’s
Renewed Cross-Motion “[…] This case presents many interesting and novel
twists and turns ostensibly pitting the protections of the First Amendment
against the alleged concerns of national security with a smattering of
Whistleblower and regulatory nuances. But the ultimate focus and underlying
claim here rises and falls with the First Amendment, and it is there that the
plaintiff Franz Boening (‘Boening’) desires to focus the Court’s attention. “The defendant relentlessly seems to pound its fists
on the table and shout its argument that analysis underpinning the Freedom of
Information Act (‘FOIA’) equally applies to this First Amendment case which,
according to the old legal maxim, means they lack both the facts and the law
on their side. The CIA desires to have this Court impose, for the first time,
a statutory interpretation of FOIA to the living, breathing parameters of the
Constitution. “Yet despite the pursuit of this virgin application
of law the CIA continually pronounces that it is Boening who holds the burden
to persuade this Court that he has met the CIA’s newly devised standards. To
the contrary, the burden falls upon the CIA, not Boening, to justify the
further attempt to erode a former employee’s Constitutional rights. […]” March 21st, 2008 - Defendant’s Reply in Support of Renewed Motion to Dismiss “[…] In opposing Plaintiff’s Motion to Compel Access
[…] to the classified documents filed in support of defendant’s initial
Motion to Dismiss and Motion For Summary Judgment (‘Initial Motion’) […],
defendant argued that Stillman v. CIA, […] requires this Court to first
consider whether it can, without assistance of opposing counsel, determine if
plaintiff’s May 10, 2001 memorandum (‘Memorandum’) is properly classified;
only if it cannot make such a determination should the Court address the
merits of plaintiff’s access motion. […] Therefore, defendant respectfully
renewed its Initial Motion to Dismiss and for Summary Judgment. And, in an attempt
to further this already-protracted litigation, defendant responded directly
to the arguments that plaintiff raised in his original opposition to the
CIA’s dispositive motion (‘Original Opposition’) […]” March 10th, 2008 - Reply to Defendant’s Opposition to Plaintiff’s Motion to Compel
Defendant “[…] In bringing before this Court the important
issue of whether plaintiff Franz Boening (‘Boening’) and his counsel are
lawfully entitled to review alleged classified documents, he very clearly
defined the two distinct questions that he was raising: “First, to what extent and when, if ever, is a
plaintiff and his counsel permitted to gain access to the specific
‘classified’ documents at issue in the litigation when both plaintiff and
counsel already possess the specific knowledge of the “classified” contents
through either having had actual prior access to the document and/or by
reason of the authorized dissemination of the contents through the execution
of a secrecy agreement? “Second, to what extent and when, if ever, are
either the plaintiff and/or his counsel permitted to gain access to the
‘classified’ declaration submitted by the defendant agency to support the
Government’s position in the litigation? […] “The answer to these two questions may ultimately be
identical, but they also need not be as both a matter of law and fact. The
opposition response […] filed by the defendant Central Intelligence Agency
(‘CIA’), however, not only unnecessarily muddles the two arguments but it
legally and factually distorts the matter at hand as well. […]” March 10th, 2008 - Response to Defendant’s Local Rule Statement of Material Facts January 31st,
2008 - Minute Order “Minute Order denying Plaintiff’s Motion to Strike.
In an effort to simplify the briefing schedule, Plaintiff’s Reply in support
of his Motion to Compel and Plaintiff's Response to Defendant's renewed Motion
for Summary Judgment shall be submitted for classification review no later
than February 11, 2008 and promptly filed with the Court as soon as possible
thereafter. Plaintiff may submit his responses in separate documents and may
exceed the page limit by 10 pages. Defendant’s Reply in Support of its Motion
for Summary Judgment shall be filed no later than March 21, 2008. So ordered.
Signed by Judge Emmet G. Sullivan on January 31, 2008.” January 11th, 2008 - Opposition to Plaintiff’s Motion to Compel and Renewed Motion to
Dismiss “[…] Pending before the Court is Defendant’s Motion
to Dismiss and Motion for Summary Judgment, Plaintiff’s Cross Motion for
Summary Judgment or in the Alternative Discovery, and Plaintiff’s Motion to
Compel Defendant to Provide Access to Classified Documents to Plaintiff and
His Counsel. The parties have also filed a joint Motion proposing a
concurrent briefing schedule for the Cross Motions and the Motion to Compel. “Recognizing that the disposition of Plaintiff’s
Motion to Compel may have a significant impact on both parties’ Motions for
Summary Judgment including the possibility of supplemental filings in support
of their cross motions, the Court will resolve the Motion to Compel before
turning its attention to the Cross Motions for Summary Judgment. Accordingly,
it is hereby ordered that Defendant’s Motion to Dismiss and Motion for
Summary Judgment are denied without prejudice; and it is further ordered that
Plaintiff’s Cross Motion for Summary Judgment or in the Alternative Discovery
is denied without prejudice; […]” November 19th, 2007 - Opposition to Defendant’s Motion To Dismiss and for Summary Judgment “[…] Plaintiff Franz Boening (‘Boening’), a former
employee of the defendant Central Intelligence Agency (‘CIA’) for nearly three
decades, internally challenged the CIA with a legal, factual and moral
dilemma by calling upon it to publicly come clean about it’s alleged
relationship with a foreign national - [one word deleted by CIA] - who held a
senior position with another Government and was revealed to be a human rights
violator and criminal. “This case revolves around a single document: a
25-page memorandum dated May 10, 2001 and its attachments (hereinafter
referred to as the ‘M Complaint’). Boening’s concerns about [one word deleted
by CIA] arose not from any classified work he had performed, or as a result
of classified files he had reviewed (or even heard through hallway gossip),
but were entirely derived from his reading of publicly available newspaper
and magazine articles that described the relationship. Based on open source
information, and not knowing whether any documentation on [one word deleted
by CIA] actually existed, he pursued a rarely used whistleblower provision
and called upon the CIA to declassify any relevant classified information it
might possess on this individual. “Relying upon provisions established by President
Clinton in Executive Order 12,958 which encouraged government employees to
challenge overclassification determinations, Boening attempted to persuade
the CIA to do the right thing. Instead of rewarding Boening the CIA turned on
him and retaliated. It initially classified the ‘M Complaint’ because of its
misconceived notion that Boening possessed access to legitimately classified
information on the topic, and shut him down completely. As a CIA employee,
his options - unfortunately - were limited. “Now, as a former employee, Boening is free of some
of the legal restraints the CIA previously held over him. The Agency’s only
power now is control over properly classified information, none of which is
contained within Boening’s writings. As a result, the CIA continues to
unlawfully impose a prior restraint upon him to obstruct his ability to
disseminate the document so as to avoid embarrassment. “This lawsuit represents a significant challenge to
the CIA’s attempt to unconstitutionally broaden the scope of its authority
over its former employees and stifle their First Amendment rights. That
effort, based on the law and facts established herein, should be thwarted by
this Court. […]” July 20th, 2007 - Defendant’s Motion to Dismiss and for Summary Judgment July 13th,
2007 - Declaration of Scott A. Koch Minute Order granting Consent Motion for Extension
of Time to Respond to Complaint. Defendant shall answer or otherwise respond
to the complaint by no later than July 13, 2007. Signed by Judge Emmet G. Sullivan
on May 2, 2007. “[…] Plaintiff, and federal whistleblower, Franz
Boening brings this action against defendant Central Intelligence Agency
(‘CIA’) for injunctive and declaratory relief pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. § 2201, the Administrative Procedure Act,
5 U.S.C. § 701 et seq., the All Writs Act, 28 U.S.C. § 1651, the CIA’s
internal regulations and the First Amendment to the Constitution of the
United States. “The CIA has unlawfully imposed a prior restraint
upon Franz Boening by obstructing and infringing on his right to disseminate
unclassified information concerning his efforts to expose the CIA’s illegal
relationship with a foreign national, for which the Agency retaliated against
him. Additionally, the CIA deliberately interfered with Boening’s efforts to
properly challenge the CIA’s classification actions before the Interagency
Security Appeals Panel, an intra-governmental entity coordinated by the
Information Security Oversight Office of the National Archives & Records
Administration. “[…] 3. Plaintiff Franz Boening (‘Boening’) was
formerly employed by the Central Intelligence Agency from 1980 – 2005. After
learning Arabic in the early 1980s, he spent nearly one dozen years in agent
operations, primarily in the Middle East. He worked declassification issues
from 1995 – 1999, and ultimately retired from the Agency after working at the
Foreign Broadcast Information Service where he handled Internet exploitation
and training. He has held a Top Secret/Sensitive Compartmented security
clearance for nearly 25 years. He is required by virtue of a secrecy
agreement to submit most personal writings for prepublication review. As a result
of the matters addressed herein Boening became a whistleblower and suffered
employment retaliation to include not being sent to Foreign Country ‘A’
despite his having volunteered and possessing needed language skills. […]” |
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Background 1)
Aerial photo of the CIA headquarters in Langley, Virginia - 2002 -
GlobeXplorer/AirPhotoUSA/Cryptome Website; |
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