Lawyer: U.S. should disclose secrets about “acoustic attacks”

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The James Madison Project and New Yorker magazine are suing the State Department for disclosure of information about the “acoustic attacks” in Havana.
The lawsuit was filed Thursday under the Freedom of Information Act and seeks a State Department Accountability Review Board report, which addressed “circumstances surrounding medical and health problems reported by U.S. Government officials working in Cuba.”
The complaint stated:

This FOIA lawsuit seeks disclosure of the ARB Report, as well as State’s efforts to address its recommendations, in order to better inform the public about the impact these “acoustic attacks” had on U.S. Government personnel, the deficiencies in the U.S. Government’s initial response to the problem, and efforts now being made to rectify the matter.

Mark Zaid

Mark S. Zaid, a highly rated lawyer in Washington, D.C., filed the lawsuit. He said on Twitter:

We are at a point where we are unhappy and dissatisfied with the amount of information that has come from the United States and this is the first step to ensure we gather additional information as to what actually happened in Cuba and ultimately in China, as well.

Zaid heads the James Madison Project in Washington, D.C. He started the organization in 1998 “to promote government accountability and the reduction of secrecy, as well as to educate the public on issues relating to intelligence and national security through means of research, advocacy and the dissemination of information.”
Zaid specializes in cases related to the national security, foreign sovereign and diplomatic immunity, the Freedom of Information Act and other areas. His biography states:

Through his practice Mr. Zaid often represents former/current federal employees, intelligence and military officers, Whistleblowers and others who have grievances or have been wronged by agencies of the United States Government or foreign governments, as well as members of the media.

Adam Entous, a staff writer at the New Yorker, is also a plaintiff in the suit. In November, Entous and fellow staff writer Jon Lee Anderson wrote a piece entitled, “The Mystery of the Havana Syndrome.”
Entous covers foreign affairs, national security and intelligence. According to his biography:

While working at the Washington Post, Adam shared a Pulitzer Prize and a special Polk Award for stories that led to the firing of President Trump’s first national-security adviser and to the appointment of a special prosecutor to investigate Russia’s role in the 2016 Presidential election. In 2017, Adam was a finalist for a Pulitzer Prize in feature writing for a story about an American diplomat wrongly accused of spying.

The U.S. Government Accountability Office has criticized the State Department’s handling of purported sonic attacks. See “A failure to communicate.”
Cuban officials have said they were not responsible for whatever caused injury to foreign personnel. Even so, American officials have used the incidents to justify an increasingly hostile stance toward Cuba.


Jason Poblete, a lawyer who supports hardline policies against Cuba, applauded the FOIA lawsuit, tweeting, “Good development; the @JMadisonProject has filed the first lawsuit to help American citizens posted at @USEmbCuba who were injured while serving the nation.”
Poblete alluded to the State Department’s ARB report during testimony before the Subcommittee on National Security of the House Committee on Oversight and Government Reform on June 20, 2018. He stated:

Jason Poblete

Cuba will never be China or Vietnam of the Americas. It is an island of 10 million people run by bad and corrupt central planners. It is not a paradise. It is a gulag. It is a Potemkin village. When Americans visit, they only see what the police state wants them to see. The Communist Party does not like Americans, free markets, private property, or the rule of law. Americans who they perceive as a threat, as Cuba has done since 1959, will be targeted.
That is why it was extremely disconcerting but not surprising when I learned that the State Department was investigating via a statutorily required accountability review board the alleged attacks against Americans stationed at Post Havana.
Justice for the victims of the Brothers to the Rescue shoot-down is a linchpin case for other Americans seeking justice for a wide range of crimes committed by Cuban outlaws. U.S. attorneys need full access to all information. The declassification process should begin swiftly. The safety of Americans I believe depends on it.

The James Madison Project is a nonpartisan organization that has investigated a range of issues.
In 2007, the group sued to obtain “copies of all internal Department of Defense (“DOD”) documents pertaining to discussions concerning the status of the detention center at the U.S. Naval Station at Guantanamo Bay, Cuba (“Guantanamo”).”
In 2000, the organization sued the FBI, DEA and Secret Service over their use of polygraph examinations to question job applicants about past drug use.
The lawsuit stated:

Aldrich Ames

There are many examples of the unreliability of polygraph examinations, and its potential abuse.
Aldrich Ames, the former CIA official turned ­spy, convinced a polygraph examiner on at least two occasions that the deceptive readings he was allegedly displaying were easily explained away. As a result, Ames “passed” the polygraph.
In fact, it is a simple feat to defeat the polygraph, which undermines the entire purpose of utilizing it to determine the truth. The very persons most likely to be the subject of a polygraph examination can use any number of techniques to “truthfully” lie. Various instructions on how to defeat the polygraph are publicly available in books and on the Internet. Upon information and belief, during the 1980s, approximately thirty Cubans who served as agents (i.e., spies) for the CIA passed extensive polygraph examinations. Following the defection of a Cuban intelligence officer and his debriefing, it was revealed that all of the CIA’s “Cuban agents” were actually double­ agents working for the Cuban Government. Each and every one of them had defeated the CIA’s polygraph examination.

As part of Thursday’s lawsuit, the court issued summonses to State Department, the Attorney General and the Civil Process Clerk in the U.S. Attorney’s Office. Within 30 days of receipt, they are required to respond to the plaintiffs and file their answer with the court.
State Department officials are often slow to respond to FOIA requests. Lawsuits can help force officials to comply with the law.
The State Department will likely cite the need to protect employee privacy as a justification for withholding information. The agency will also allude to national security if disclosure of documents would reveal too much about U.S. intelligence operations in Cuba.
Many key questions remain unanswered:

  • What caused injury to U.S. diplomats?
  • Who did it and why?
  • Are U.S. officials justified in using the episode as reason for increasing hostility against Cuba?

It’s too early to say if the lawsuit will answer those questions, but I think we’ll almost certainly learn something new as a result of the suit.

Amy Berman Jackson

U.S. District Court Judge Amy Berman Jackson has been assigned to the case. Former President Barack Obama appointed her in 1981. A Harvard Law School graduate, she has presided over many politically charged cases, including those of Paul Manafort, Roger Stone and the 12 Russian spies accused of hacking into the files of top Democrats.
In a 2017 profile, Quartz said:

…like many federal judges she has a lengthy history that’s difficult to characterize as either “liberal” or “conservative.” In fact, in one of the most significant cases of her legal career before becoming a judge, she successfully argued that the Federal Bureau of Investigation (FBI) had overstepped its bounds in investigating a public figure.
As a judge, Jackson’s rulings have been alternately welcomed by conservatives and liberals alike.
Jackson has been a “very conscientious and very fair” judge, said Robert P. Trout, a partner with Trout, Cacheris, & Janis, the DC law firm. Of Jackson’s decisions, he said she “calls them like she sees them.”

Judge Amy Berman Jackson. Credit: CNN

The text of the FOIA complaint is below:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
THE JAMES MADISON PROJECT
1250 Connecticut Avenue, N.W., Suite 700
Washington, D.C. 20036

and

ADAM ENTOUS
The New Yorker
1 World Trade Center
New York, NY 10007

Plaintiffs,

v.

DEPARTMENT OF STATE
Office of the Legal Adviser
600 19th Street, NW
Washington, D.C. 20522

Defendant.

************

COMPLAINT
This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., as amended, seeking the production of agency records requested by the plaintiffs The James Madison Project and Adam Entous from the defendant Department of State.

JURISDICTION
1. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the defendant pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.

VENUE
2. Venue is appropriate under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391.

PARTIES
3. Plaintiff The James Madison Project (“JMP”) is a non-partisan organization established in 1998 to promote government accountability and the reduction of secrecy, as well as educating the public on issues relating to intelligence and national security.
4. Plaintiff Adam Entous is a staff writer for The New Yorker, and is a representative of the news media.
5. Defendant Department of State (“State”) is an agency within the meaning of 5 U.S.C. § 552(f), and is in possession and/or control of the records requested by the plaintiffs that are the subject of this action.

FACTUAL BACKGROUND
6. This lawsuit is brought under the Freedom of Information Act (“FOIA”). It seeks production of certain non-exempt U.S. Government records, namely the report of the Accountability Review Board (“ARB Report”) addressing circumstances surrounding medical and health problems reported by U.S. Government officials working in Cuba, as well as steps that will be or have already been taken to implement the recommendations of the ARB Report.
7. In August 2017, media outlets began reporting that U.S. Government officials working in the U.S. Embassy in Havana, Cuba, were subjected to an “acoustic attack” that resulted in health problems. https://www.cnn.com/2017/08/09/politics/us-cuba- acoustic-attack-embassy/index.html (last accessed April 17, 2018). The attacks began in mid-November 2016 and lasted until Spring 2017, forcing U.S. Government officials and their family members to seek medical treatment. https://www.cnn.com/2017/08/20/ politics/havana-sonic-attacks/index.html (last accessed April 17, 2018). President Trump has publicly stated that he believes the Cuban Government is responsible for the attacks.
https://www.cnn.com/2017/10/16/politics/trump-cuba-us-diplomats-attack/index.html
(last accessed April 17, 2018).
8. On January 12, 2018, then-Secretary of State Rex Tillerson convened an
independent ARB to review the matter. The finalized ARB Report was submitted to Congress on August 30, 2018, outlining recommendations and actions taken in response. https://www.state.gov/r/pa/prs/ps/2018/08/285576.htm (last accessed September 17, 2018). To date, the complete details of the ARB Report remain concealed from the American public.
9. In the meantime, details surrounding what transpired in Cuba and the impact it has had on the U.S. Government officials (and their families) who were stationed there continues to emerge in public reporting. https://nypost.com/2017/10/12/revealed-sound- of-the-sonic-attack-on-americans-in-cuba/ (last accessed February 7, 2019); https://www.newsweek.com/cuba-us-embassy-sonic-attack-crickets-havana-scientists- acoustic-weapon-mass-1281389 (last accessed February 7, 2019); https://www.theguard ian.com/world/2018/sep/02/microwave-weapons-us-embassy-cuba-china-new-york-times (last accessed February 7, 2019); https://www.nytimes.com/2018/12/12/world/americas/ cuba-embassy-attacks.html (last accessed February 7, 2019).
10. Academic studies have also been conducted and published, such as one study published in a medical journal in March 2018 outlining the medical and physical symptoms suffered by 21 U.S. Government personnel who had been stationed in Cuba. https://www.cnn.com/2018/12/12/health/cuba-acoustic-attack-symptoms-study/ index.html (last accessed February 7, 2019). The National Academies of Sciences,
Engineering, and Medicine has now been commissioned by State to conduct its own investigation of the matter. https://news.yahoo.com/cuba-medical-mystery-deepens-state- department-turns-new-scientific-panel-answers-182912582.html?soc_src=hl- viewer&soc_trk=tw (last accessed February 7, 2019).
11. This FOIA lawsuit seeks disclosure of the ARB Report, as well as State’s efforts to address its recommendations, in order to better inform the public about the impact these “acoustic attacks” had on U.S. Government personnel, the deficiencies in the U.S. Government’s initial response to the problem, and efforts now being made to rectify the matter.

COUNT ONE
12. The plaintiffs, JMP and Entous (hereinafter referred to jointly as “the Requesters”), repeat and reallege paragraphs 6 through 11 above, inclusive.
13. By letter dated September 17, 2018, the Requesters submitted to State a FOIA request.
14. The FOIA request specifically sought copies of records, including cross- references, memorializing the entirety of the ARB Report, as well as any inter-agency or intra-agency correspondence outlining steps to implement the recommendations of the ARB Report.
15. State acknowledged receipt of the FOIA request and assigned it a request number.
16. To date, no substantive response has been received by the Requesters from State. The Requesters have constructively exhausted all required administrative remedies.

WHEREFORE, plaintiffs The James Madison Project and Adam Entous pray that this Court:
(1) Order the defendant federal agency to process and release to the plaintiffs all non-exempt copies of responsive records;
(2) Award reasonable costs and attorney’s fees as provided in 5 U.S.C. § 552(a)(4)(E) and/or 28 U.S.C. § 2412(d);
(3) Expedite this action in every way pursuant to 28 U.S.C. § 1657(a); and (4) Grant such other relief as the Court may deem just and proper.
Date: February 7, 2019

Respectfully submitted,

/s/

__________________________ Mark S. Zaid, Esq.
D.C. Bar #440532
Bradley P. Moss, Esq.
D.C. Bar #975905
Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W. Suite 700
Washington, D.C. 20036
(202) 454-2809
(202) 330-5610 fax
Brad@MarkZaid.com
Mark@MarkZaid.com
Attorneys for Plaintiffs

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