Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL SECURITY ARCHIVE 2130 H Street N W Suite 701 The Gelman Library Washington DC 20037 Plaintiff v C A No 1 19-cv-529 DEFENSE INTELLIGENCE AGENCY 7400 Pentagon Washington DC 20301 Defendant COMPLAINT 1 This is an action under the Freedom of Information Act FOIA 5 U S C 552 Plaintiff the National Security Archive Plaintiff or the Archive seeks injunctive and other appropriate relief for the processing and release of agency records requested by Plaintiff from Defendant Defense Intelligence Agency DIA or Defendant on August 15 2018 Specifically the Archive seeks disclosure of a limited number of Lieutenant General Leonard Perroots' 1989 records related to the 1983 Soviet 'War Scare' More than five months after submitting its FOIA request the Archive has yet to receive a single responsive document from DIA JURISDICTION AND VENUE 2 This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U S C 552 a 4 B a 6 E iii and 28 U S C 1331 3 Venue lies in this district under 5 U S C 552 a 4 B Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 2 of 8 THE PARTIES 4 Plaintiff the National Security Archive is an independent non-governmental research institute and library The Archive was established in 1985 to promote research and public education about the U S governmental and national security decision-making process It collects analyzes and publishes documents acquired through FOIA in order to promote and encourage openness and government accountability The Archive serves as a repository of government records on a wide range of topics pertaining to the national security foreign intelligence and economic policies of the United States The Archive is a representative of the news media within the meaning of 5 U S C 552 a 4 A ii See Nat'l Sec Archive v U S Dep't of Defense 880 F 2d 1381 D C Cir 1989 cert denied 110 S Ct 1478 1990 5 Defendant Defense Intelligence Agency is a component of the Department of Defense a department of the Executive Branch of the United States Government The DIA is an agency within the meaning of 5 U S C 552 f 1 DIA is headquartered in the District of Columbia BACKGROUND The 1983 Soviet War Scare 6 During the tense years of the Cold War the American public lived in near constant fear of nuclear threats posed by the Union of Socialist Soviet Republics Soviet or Soviet Union What many do not know however is that in 1983 the world narrowly averted a nuclear crisis thanks in part to one U S general acting correctly out of instinct not informed guidance 1 1 The Soviet War Scare President's Foreign Intelligence Advisory Board Feb 15 1990 at x available at https nsarchive2 gwu edu nukevault ebb533-The-Able-Archer-War-ScareDeclassified-PFIAB-Report-Released 2012-0238-MR pdf 1990 Presidential Report 2 Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 3 of 8 7 During November 1983 North Atlantic Treaty Organization NATO forces conducted their annual command post exercise to practice nuclear release procedures named as Able Archer 83 1990 Presidential Report at 69-70 While these exercises were routinely monitored by Soviet intelligence certain hallmarks of the 1983 exercise provoked a heightened alert Id at 70 8 Specifically the 1983 Able Archer exercise Able Archer 1983 tested new procedures for releasing nuclear weaponry that emphasized command communications from headquarters to subordinate units and featured pre-exercise communications that notionally moved forces from normal readiness to a General Alert Id 9 In response to their detection of Able Archer 1983 Soviet intelligence initiated a major mobilization of their intelligence and military forces Id This included placing Soviet air forces in Germany and Poland on heightened alert conducting over 36 intelligence flights and transporting nuclear weapons from storage sites to launch pads by helicopter Id at vi 71-72 10 The scale of the Soviet response was unparalleled and had only been previously observed during actual crises Id at vi 71 Lieutenant General Leonard Perroots' De-escalation of the 1983 Soviet War Scare 11 In 1983 Lieutenant General Leonard Perroots served as the Assistant Chief of Staff for Intelligence at Ramstein Air Base in West Germany the U S Air Force's European headquarters 1990 Presidential Report at 27-28 12 Observing the signs of the elevated Soviet military alert he chose not to respond thus averting further escalation of the 1983 Soviet War Scare T he military officers in charge of the Able Archer exercise minimized risks to the United States by doing nothing in the face of evidence that parts of the Soviet armed forces were moving to an unusual level of alert Id at x 3 Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 4 of 8 See also id at 28 it was Perroots' decision not to raise US sic readiness in response to detection of the Soviet Air Forces' increased alert status 13 Lieutenant General Perroots subsequently served as the Director of the Defense Intelligence Agency from 1985 to 1988 In 1989 he wrote a letter to the President's Foreign Intelligence Advisory Board PFIAB requesting an investigation into Able Archer 1983 and his concerns with the intelligence community's inadequate treatment of the Soviet Union's response Id at 27 14 PFIAB conducted an investigation which resulted in a 1990 report confirming the Soviet Union's fears that the U S would launch a nuclear strike i e the 1990 Presidential Report Id at vii The Board's report concluded In 1983 we may have inadvertently placed our relations with the Soviet Union on a hair trigger and that Soviet military leaders may have been seriously concerned that the US would use Able Archer 83 as a cover of launching a real attack Id at xii 71 15 Although the 1990 Presidential Report was declassified in 2015 after 12 years of FOIA requests declassification review efforts and advocacy by the Archive 2 many of Lieutenant General Perroots' historically valuable files remain classified This includes the letter in which he documented his concerns surrounding the 1983 Soviet War Scare These files likely tell the cautionary and relevant tale of the dangers of nuclear war by miscalculation and miscommunication 2 1983 War Scare Declassified and For Real the Archive Oct 24 2015 available at https nsarchive2 gwu edu nukevault ebb533-The-Able-Archer-War-Scare-Declassified-PFIABReport-Released 4 Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 5 of 8 PLAINTIFF'S 2018 FOIA REQUEST 16 On August 15 2018 the Archive submitted to DIA the FOIA request at issue in this case the Request 3 The Archive requested files that likely include a copy of Lieutenant General Perroots's 1989 letter seeking a PFIAB investigation into the 1983 Soviet War Scare 17 Specifically Archive requested the following files from 1989 from three boxes located in the Washington Records Center in Suitland Maryland DR's Official Correspondence File Jan-Dec 89 DR's Message File Jan- Dec 89 and DR's Chron Files of Correspondence 1 Jan-15 May 89 in DIA Box Numbers 1 3 DR's Chron Files of Correspondence 16 May-15 Nov 89 in DIA Box Numbers 2 3 and DR's Chron Files of Correspondence 16 Nov-31 Dec 89 in DIA Box Numbers 3 3 Ex A at 2 18 The Request identified the records by accession number and volume and included a copy of Standard Form 135 the form prescribed by the National Archives and Records Administration for the request of records which identifies the specific location of the files in the Suitland Maryland federal records facility Id at 2 4 19 In an August 21 2018 letter DIA acknowledged receipt of the Request 4 DIA's letter stated that they would be unable to respond to Plaintiff's request within 20 days due to unusual circumstances listing the potential unusual circumstances as the need to search for and collect records from a facility geographically separated from this office the potential volume of records responsive to Plaintiff's request and the need for consultation with one or 3 See Exhibit A Letter from Nate Jones Dir of the FOIA Project the Archive to Charles Marineau Chief of the Office of Records Management and Info Servs DIA Aug 15 2018 4 See Exhibit B Letter from Charles Martineau DIA Records Mgmt and Info Servs to Nate Jones Dir of the FOIA Project the Archive Aug 21 2018 5 Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 6 of 8 more other agencies which have substantial interest in either the determination or the subject matter of the records Ex B at 1 20 DIA's letter indicated that the Request has been placed in the agency's queue and will be worked in the order the request was received noting that the workload is in excess of 1 139 requests and that the delay is substantial Id 21 In certain unusual circumstances agencies may notify the requestor by written notice that it is extending the time limit for its response by no more than ten working days 5 U S C 522 a 6 B i The written notice must identify the expected date of determination Id 22 Unusual circumstances include the need to search for and collect records from facilities separate from the office processing the request the need to examine a voluminous amount of separate and distinct records demanded in a single request or the need for consultation with other interested agencies Id at 522 a 6 B iii 23 In this particular instance there was very little unusual about Plaintiff's request Plaintiff has requested three discrete boxes - hardly a voluminous amount of records Ex A at 2 Further Plaintiff's request specifically identified the location of the three boxes within the Washington Records Center Id at 2 4 If Plaintiff's request can be described as unusual in any way it is only unusual in how easy it makes it for DIA to efficiently respond to its request by seeking only three pre-located boxes 24 However on November 26 2018 DIA sent the Archive a status update informing Plaintiff that its request would be placed on its Complex Track for FOIA processing 6 Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 7 of 8 meaning that Plaintiff's request involve s a large number of records or that the records requested require significant review within this agency or consultations with other agencies 5 25 DIA further informed Plaintiff that they currently have 1 167 open FOIA requests Ex C at 1 Plaintiff's request is number 1 133 within the queue Ex C at 1 26 DIA's initial FOIA response listed their total number of outstanding FOIA requests as 1 139 Ex B at 1 During the three-month period between the Defendant's initial response August 21 2018 and their status update to Plaintiff November 26 2018 Defendant's total backlog actually grew by 28 requests 27 DIA's 2017 Annual Report indicates that their oldest outstanding request dates back to 2004 6 The Annual Report also indicates that it can take DIA over ten years to respond to requests they determine to be Complex Ex D at 5 28 Neither of DIA's responses identified an expected time frame for its ultimate response to Plaintiff's Request 29 To this day DIA has failed to produce a single record in response to Plaintiff's Request CAUSE OF ACTION Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records 30 Plaintiff repeats and realleges Paragraphs 1o29 31 Defendant has wrongfully withheld agency records requested by Plaintiff 32 Plaintiff has exhausted the applicable administrative remedies with respect to Defendant's wrongful withholding of the requested records 5 See Exhibit C Letter from Brian Jenkins DIA Records Mgmt and Info Servs to Nate Jones Dir Of the FOIA Project the Archive Nov 26 2018 6 See Exhibit D DIA Annual Freedom of Information Act Report 2017 at 6 7 Case 1 19-cv-00529 Document 1 Filed 02 28 19 Page 8 of 8 33 Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested records REQUESTED RELIEF WHEREFORE Plaintiff respectfully requests that this Court 1 order Defendant to promptly disclose the requested records in their entirety and make copies available to Plaintiff 2 provide for expeditious proceedings in this action 3 award Plaintiff costs and reasonable fees incurred in this action and 4 grant such other relief as the Court may deem just and proper Date February 28 2019 Respectfully submitted _______________________________ John S Guttmann D C Bar No 251934 Hilary T Jacobs D C Bar No 1021353 pending bar admission with the U S District Court for the District of Columbia Beveridge Diamond P C 1350 I Street N W Suite 700 Washington D C 20005-3311 Telephone 202 789-6020 Facsimile 202 789-6190 Email jguttmann@bdlaw com Counsel for Plaintiff 8 This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu