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Judicial Watch • Bates 000934 000956 Redacted

Bates 000934 000956 Redacted

Bates 000934 000956 Redacted

Page 1: Bates 000934 000956 Redacted


Number of Pages:23

Date Created:April 14, 2012

Date Uploaded to the Library:February 20, 2014

Tags:000956, 000934, Bates, redacted

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Facsimile and First Class Mail 
Mark Zaid, Esq. Krieger Zaid, PLLC 92Q Street, N.W., Suite 300 Washington, 20036 
Re: Your Request for Access Classified National Security Information 
Dear Mr. Zaid: 
This responds your letters August and Messrs. Haynes and and concemingyour representation Mr. Anthony Shaffer and your request that you and your law partner, Roy Krieger, Esq., granted access classified national security information connection with that representation. More specifica11y, your letter August requests that you and Mr. Krieger permitted receive classified information from your clients "pertaining their activities in'oMng ABLE DANGER." 
Mr. Haynes has asked respond your letters. For the reasons explained below, decline recommend the DIA Determination Authority that you and Mr. Krieger considered for access classified information. The Need-to-Know Detem1ination 
Your letter August requesting access classified information relies and quotes Department Defense (DoD) Regulation 5200.2-R) Pers01mel (Jan. 1987).1 The regulation pro'ides the quoted paragraph .4.4.6 that attorneys representing DoD personnel such federal criminal prosecution invo!Ying classified evidence, may granted access certain classified information, where such access necessary adequate representation the client. Paragraph C3.4.4.6 requires, prerequisite the granting such access, the issuance the General Counsel the DoD Component involved the litigation that access specified classified information, the part the attorney concerned, necessary adequately represent his her client." The cited paragraph also provides that such access requires the attorney enter into non-disclosure agreement with the government ensure protection such classified information. Your August letter also cites "DoD Direc:tiYe 5200. lR. Appendix B3(45)." Howe,er, the actual reference, regulation. DoD 5200. l-R. (Jan. 1997). does not contain the cited appendix. DoD Directhe 5200.1, DoD Infommtion (Dec. 1996 does not contain any appendices. 
(b) .{6} 
000934 bears emphasizing that the fact that attorney representing client, even defendant criminal litigation, does not, standing alone, establish the attorney's "needto-know" under Section 4.1 Executive Order 13292, Classified National Information,2 implemented DoD information and personnel security regulations.3 DoD 5200.2-R explains paragraph DLl.1.17, "Knowledge, possession of,.oraccess to, classified infonnation shall not afforded any individual solely virtue ofthe 
individual's office, position. security clearance." 
Moreover, Appendix DoD 5200.2-R sets forth guidelines, characterized the whole person concept," for the government consider detennining whether particular individual should granted initial continued access classified information, even she has need know. That consideration addressed part II, below. contrast the situation described paragraph C3.4.4.6, representation Mr. Shaffer with respect ABLE DANGER does not involve litigation, and DoD 5200.2-R does not otherv.:ise contemplate granting clearances private counsel your circumstances. Indeed, your letters August and explain, you are representing your clients connection with requests from Members Congress their staffs for your clients simply provide factual information concerning their knowledge ABLE DANGER. 
That consideration, couple with the fact that your representation does not inrolve litigation, leads conclude that your request does not meet the requirements paragraph C3.4.4.6. Therefore, cannot certify the DIA Detennination Authority that the requested access classified infonnatioh for you and Mr. Krieger necessary adequately represent your clients conveying their own factual knowledge Congress. 
II. Your Record Protected Nation Securitv Information addition the need-to-know determination, DoD 5200.2-R governs the assessment individual' suitability for access classified information under what Appendix the regulation describes the "whole person concept." This invol'es "the assessment person's trustworthiness and fitness for responsibility that could Fed. Reg. 15,3 (Mar. 28, 2003) (funher amending Executive Order 12958, amended). DoD 5200.1-R, Information (Jan. 1997), and DoD 5200.2-R. 
 The DIA Determination Authority for security clearances the Director, Office Counterintelligence and Security. Your August letter contends that "denying our request for access will effectively and deliberately interfere with the lawful oversight responsibilities ofthese Congressional Committees" because "our clients have made dear that.tney will not cooperate without legal representation." Such assertion experienced counsel difficult fathom. First, your clients already have legal representation -by you 
and Mr. Krieger. your clients' willingness cooperate with Congress, the appropriate oYersight Committees ha'C ample subpoena and contempt powers encoarage their cooperation, irrespective whether their lawyers gain access classified information. addition, Mr. Shaffer is, you know. DIA employee who may directed his DIA superiors report for duty the appropriate time and place Capito!Hill Congress may request. 
(:b) {6} 
abused, have unacceptable consequences for the national security." paragraph C6.1.1.3. Guided that regulatory fonnulation, have carefully reviewed your own 
request for access light the dec ision the United States District Court  Assassination Archives Research Centerv. Supp2d 1(D.D.C.1999).
Based the specific findings the District Judge concerning your deliberate and wrongful compromise Central Intelligence Agency (CIA) information you were bound protect under confidentiality agreement, have concluded that recommendation the Detennination Authority that you considered for access classified infonnation would inconsistent with both guidance DoD 5200.2-R and the overall objectives ofDoD's personnel and information security programs. 
(b) {6} 


Tel:llll Leader/Senior Investigator  
Office Inspector General  
Department Defense  
(703) 6048996 fax  
FROM:  Mark Zaid Esq. .Kiieger Zaid, PLLC  
1920NStreet, N.W.  
Suite 300  
Washington, D.C. 20036 (202) 4542809 (202) 293-4827 fax  
E-Mail: Zu(  
SUBJECT;  Anthony Shaffer/LE DANGER investigation  
DATE: November 2005 Jq,,. 'C2CIQ'  

Attached are the letters sent and recelved from DIA regarding the de!!ltruction Shaffer documents. 
This fax/telecopy intended only for the use the individual which addressed and contain information that privileged confidential. you have received this error, please notify immediately telephone. 
Received Time Jan. 18. 9:41PM 

Cb) (6). 

.,._ September 200S 

Yet, based would appear otherwise. 

FinaJly, DIA not pennitted simply destroy classified documentation its whim. Destruction ofsuch records governed very specific regulations. Therefore. should DIA have actually destroyed classified papers there must exist the proper record destruction ordero legally support DIA' actions. respectfully request that DIA produce, provide access the record destruction order prove DIA lawfully destroyed the ABLE DANGER. files Shaffer's possession. respectfully request response this letter later than September 200 that ensure DlA's answer incorporated within the testimony intend submit the Senate Judiciary Committee for its scheduled September 2005 hearing ABLE DANGER. 

Ifyou wish discuss this rn.atter, available your convenience. 

cc: 	Senator Pat Roberts Chairman) Select Committee Intelligence Senator Arlen Specter Chairmall, Committee the Judiciary Congressman Peter Hoekstra Chairman, Permanent Select Committee Intelligence Congressman Duncan Hunter Chairman, House Anned Services Committee 
Congressman Curt Weldon  Chairman, Tactical Air and Land Forces Subcommittee, 
House Anned Services Committee 

Received Time Jao.18. 9:41PM 

WASHINGTON, [).C. 2034
September 23, 2005 
Facsimile and Class Mail 
Mark Zaid, Esq. Klieger Zaid, PLLC 
1920 Street, W., Suite 300 Washington, 20036 
Dear Mr. laid 
This responds your letter Sepl.tlll.ber .tne concerning your legal representation .AIJ.thony Shaffer, your assertion that DIA destroyed Mr. Shaffer's HABLE DANGER files," and your request that the Defense Jntelligence Agency (DIA)
rovide with certain  Mr. Shaffer's 
and makes
equent reference ABLE DANGER apparent effon link these topics. Under federal law, a:o unsworn declaration made "unde( penalty perjury" has the .Se force. effot sworn affidavit declaration Wlder oath. 28 U.S.C. 7.16. 

Rec an. 18. 

---. -------.... -----'!!- - I 
again, nono tlus had even tho remotest I 
Second, .DlA did not improperly destroy classified documents Mr. Shaffer)s office files) nor did such files relate ABLE DANGER. Your public statements the contraiy, and those ofyour client) are belied verined and established facts. The 
..relocation" Mr. Shaffer's office files 20041 over which you expressed puzzlement your letter, was necessitated his reassignment within DIA and his repeated failure move his files his new office. response instructions via e-mail from supervisor two separate occasions move his files and personal effects, Mr. Shaffer neither oved nor secured em, Mol'over, never raised any concerns any supei:visor that office files contamed matenals that needed preserved. 
Instead, Mr. Shaffer left his files unmoved and departed oversea'-' assignment. His DIA colleagues then had move the files for him. DIA later spent approximately fifteen hours meticulously sorting through Mr. Shaffer's separate!'. officiid documents from his ersonal effects. That sorting process disclosed copies official documents concerning foreign regional matters, but nothing related labeled 
"ABLE DANGER." Indeed, DIA's review ofiMJ:. Shaffer' files did not uncover any 
"code word" materials. nor were there any maps, charts, diagrams cylindrical containers hold such items among Mr. Shaffer's boxes files aud personal
belongings. Subsequent this review, and after returned from overseas, Mr. Shaffer was again contacted repeatedly and asked retrieve his personal effects. before, 
Mr. Shaffer did not retrieve items being held for him, nor did raise any concemtr1at his office files had included important material that needed preserved. today his personal effects remain the custody DIA because has never made arrangements retrieve them,  
While Mr. Shaffers personal effects have been retained for him, the copies 
classified and unclassified official documents found the file boxes were properly secured bUl11 bags" and destroyed, regularly done with non-accountable j'.
docuru.ents. that regard, your September letteJ''a assertion that any destruction classified documents requires "record destruction order" also inco1rect. Here again, I 
any imagined co:onection with ABLE DANGER does not withstand scrutiny. 
Received Time Jan.18. 9:41PM 

{h) {6) 

This letter inarked "For Official Use Only> solely for Mr. Shaffers 
under the Privacy Act l974j amended, U.S.C. 552a, and not intended irupos any restriction your use disclosure offl1e infonnation this letter with Mr. Shaffer's consent. 
Received Time Jan.18. 9:41PM 

e4mail andpurge the original and all copies thereof Thank you. 

Received Time May. 29. 11:08PM 

703 697 i276:# 4COHN and MARKS-+ SE.NT BY: 

FROM: 	Murk Zuid, Esq. 
Krieger laid. PLLC 
1920 Street, 
Suite 300 
Washington, D.C. 20036 


293-4827 fax 

OATE: August 2005 

This faxltelecopy intended only fol' the use the individual which addressed and may contain information that privileged confidential. you have received this communication error, please notify immediately telephone. 
(bl (3) 
(b) (6) 
703' 637 4276:#
COHN and MARKS ....
8-30-5 2:01PM

1920 STREET, N.W. 
TELEPHONE (202) 223-9050 
FACSIMILE (202) 2934827 

M>lil'. ZAIO. ESQ. W111Tn'llUC:T Dul. t20!)HJll!') 
.liMA.11. ).1idM:f9A!1I lllll August 2005 
WilliamJ. Haynes, JI, Esq. 
General Counsel 
Department Defense Wa..1hinbrton, D.C. 20301 
Tom Taylor Senior Deputy General Counsel 
Department the Arm)" 104 Army Pentagon 
Washington. D.C. 20310-0104 
Gc11tlemen: firm represents Anthony Shaffer, employee the Defense Intelligence Agency {"OTA"), who previously served the liaison between the DIA and Special Operations Command ("SOCOM") the ADLE DANGER project. Additionally, 
directly worked ABLE DANGER activities. writing respectively requeslthat the Department Defense, the Defense lntcllignce Agency and/or the Department the Anny> expressly authorize the undersigned and law partner, Roy Krieger, receive classified information from our clients pertaining their activities involving ABLE DA.'NGER. lloth Mr. Krieger and routinely have access classified information from the Cc.:nlrul Intelligence Agency, and frequently granted access DIA classified informa.tion based 011my representation DIA employees such as, and including, Mr. Shaffer. While the granting our access a_