ZAID, MARK S.; BOEING V. CIA CIVIL ACTION NO. 07-430

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0001505266
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 18
• Document Creation Date: June 23, 2015
• Document Release Date: September 29, 2010
• Case Number: F-2010-00666
• Publication Date: December 5, 2007

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APPROVED FOR
RELEASE^ DATE:
18-Aug-2010
[phone] E-Mail: [e-mail]
[phone] fax http://www jamesmadisonproject.orga
Scott A. Koch
Central Intelligence Agency
Information and Privacy Coordinator
Washington, D.C. 20505
Re: FOIA Request -Boening v. CIA, Civil Action No. 07-430 (DDC)(EGS)
Dear Mr. Kocki:
This is a request on behalf of The James Madison Project under the Freedom of
Information Act, 5 U.S.C. ? 552, et sea., for a copy of the documents that comprise
Exhibits "A" - "0000" which were submitted in support of the Declaration of Franz
Boening in the lawsuit of Boening, v. CIA, Civil Action No. 07-430 (D.D.C.)(EGS). The
cover Exhibit sheet that was publicly filed in the lawsuit is enclosed.
In his sworn declaration, which was cleared for public filing by the CIA (a copy of
which is also enclosed), Mr. Boening described these neazly one hundred documents as
domestic and international news accounts including published xxewspaper and magazine
articles. See ??3-5,7,11,22. Based on these documents, Mr. Boening drained a May 10,
2001 Whistleblower Complaint.
These publicly available documents were submitted to the CIA for classification
review as part of the Boenin? litigation and apparently -given that Mr. Boening was not
permitted to file them as part of his lawsuit -are now considered classified.
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 12!0512007 15:43 2023305610 MARKZAID
PAGE 03
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 12~05I200? 15:43 2023305610 MARKZAID
$oenipgv. CIA, Civil Action No. 07-0430 (EGS)
EXHIBIT "1"
Declaration of Franz Boening
 UNITED STATES A)(STRICT COURT
FOR THE DISTRICT OF COLUMBIA
FRANZ BOENING
Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY
Defendant.
# Civil Action No: 07-430 (EGS)
DECLARATION OF FRANZ BOENING
The undersigned hereby declares as follows:
l . I am a person over eighteen (18) years of age and competent to testify. I am the
plaintiff in this action and make this Declaration on personal knowledge. This
Declaration is submitted in support of my Opposition to Defendants' Motion to Dismiss.'
2. I .was formerly employed by the Central Intelligence Agency {CIA) from 1980 -
2005. After learning Arabic in the early 1980s,1 spent nearly one dozen years in agent
operations, primarily in the Middle East. I worked declassification issues from 1995 -
1999, and ultimately retired from the Agency after working at the l+oreign Broadcast
Information Service where I handled ]nternet exploitation and training. I have held a Top
Secret/Sensitive Compartmented security clearance for nearly 25 years (in fact, I continue
to still hold my clearance as a contractor working at C1A). As a result of the matters
,addressed herein I became a whistleblower and suffered employment retaliation, some of
which are described below.
' Per the requirements of my secrecy agreement, this document has been submitted for
classification review and the contents, unless noted otherwise, have been deemed
unclassified and approved for public filing.
 3. In 1980, when I entered onto duty with the C1A I signed a secrecy agreement in
which I agreed to pre-publication review of any intelligence related documents that I
might author after leaving government service. This was the only secrecy agreement I
executed while a CIA employee. I agreed not to reveal any CIA classif ed information and
1 have observed the agreement. 1-Iowever:
? I did not agree to any specific type of CIA formatting for my
documents;
? I did not agree to append tortuously worded disclaimers;
? I did not agree to never criticize the CIA;
? l did not agree to withhold reporting of apparently felonious activity
by CIA that is publicly discussed in declassified documents that
originated with other federal agencies;
? I did not agree to never write a whistleblower complaint;
? and I did not agree to refrain from citing and quoting published
newspaper and magazine articles in my criticism.
My secrecy agreement deals strictly with properly classified CIA information. I made no
other legal promises to CIA.
4. This lawsuit primarily pertains to my whistleblower complaint of May 10, 2001,
which l will refer to as the "Nl Complaint" (a designation that the CIA and I have utilized
with approval in unclassified correspondence). Idrafted the "M Complaint" in the spring
of 2001 after reading a number of publicly available newspaper and magazine articles
since autumn 2000 about political scandals in [one word deleted by CIA.] country [six
words deleted by CIA]. I have long taken a personal interest in Latin American
 12105!2007 15:43 2023305610 MARKZAID
developments and in human rights issues. I have visited several countries in the area and
speak serviceable Spanish.
S. As I read the domestic and international news accounts I became angered not just
by the level of narco-corruption in this particular country and the hidden brutality of the
regime in question, but also by the constant reminder that, according to the scores of
credible published media accounts, my employer, the CIA, had nurtured and supported
(one word deleted by CIA] for years.
6. [eight lines deleted by CIA]
7. According to the same media accounts t read, many of which are attached to my
declaration as exhibits "A" through "000" (these documents were ultimately submitted
to the CIA's Publication Review Board (1'RB) as part of the review process), [seven lines
deleted by CIA].
8. 1 decided to monitor, during my own personal time, the unfolding political scandal
because of my strong sense of civic responsibility combined with my personal irritation. I
did this because I knew that if what I had read was even 50% true,l would take it upon
myself to document an apparently gargantuan intelligence failure.
9. Why would a CIA officer do this when it had little or nothing to do with his
present assignment? Because by 2001, I had devoted over 20 years of my life to the CIA
and I owed it to the American taxpayers to call my employer to account. It made me livid
that CIA was so inept, that it may have been party to human rights violations and, even
worse, that it seemed entirety possible that CIA had been criminally involved with [one
word deleted by CIA]. After all., for whom did I work? The American taxpayer or for an
organization that might engage in criminal activity and hide behind the flag? Was it not
 my civic duty to draft a professional complaint in which I outlined cny credible evidence
of intelligence failure and wrongdoing?
10. It is important to note that during this period 1 worked in the Foreign Broadcast
Information Service (FBIS) as a Mideast media analyst (I did the original mapping of the
Arabic-language network of jihadist bulletin boards). I had absolutely r~Q professional
responsibility whatsoever for Latin American affairs nor did I have computer or other
access to any type of classified, compartmented CIA operational information on Latin
America.
] 1.1 can swear that not-one word of my May 10, 2001 memorandum is based on any
classified C1A document on [one word deleted by CIA], or on any information I
received as a result of my employment with the CIA. Indeed, in my entire life I have
never read a single classified CIA. document (apart from official responses to my
complaint which classi .feed publicly available newspaper and magazine articles) wherein
[one word deleted by CIA] was mentioned. Everything in my May 10, 2001 memo is
based on open source information from. newspaper or magazine accounts, or officially
declassified information from other federal agencies that I obtained via the Internet.
Additionally, the "classified annex" that accompanied the "M Complaint" was styled that
way as a precaution, and not because I actually believed it did contain classified
information. In fact, l explicitly challenge that it does not.
12. The CIA operates an extremely rigid, compartmented data system that prevents
anyone without a need to know to access sensitive information. Thus, the insinuation that
I may have surreptitiously entered into CIA's Latin America databases is completely
baseless and utterly irresponsible. The CIA knows full well that accessing databases, at
 12!05!2007 15:43 2023305610 MARKZAID PAGE 09
least undetected, in such a manner is virtually impossible and was beyond my technical
reach. Such an allegation, even if just an insinuation, further demonstrates the level at
which the C1A will sink in order to cover-up its embarrassing conduct. Moreover, if the
CIA even believed this to be true it never once raised the allegation during the four years
(2001-2005)1 spent inside the CIA discussing the "M Complaint". It never sought to
discipline me for a security violation, or revoke my clearance. Nor did it interfere with the
transfer of my security clearance, which the C1A continues to hold, for contracting work
after I retired.
13. About a year after writing the "M Complaint", 1 was allowed to formally
challenge its classification under rules established by EO 12,958 (or so I thought at the
time). CIA informed me that it had formally accepted my challenge in Summer 2002, and
implicitly acknowledged that the "M Complaint" was an official document. Hy 1~a112002,
however, after the process had run its course inside the Agency and the latter had refused
to declassify any material, l requested, in keeping with rules established by the EO as I
understood them, to have the document forwarded to the Inter-Agency Security
Classification Appeals Panel (ISCAP) in Washington, D.C., then chaired by William
Leonard, which supposedly had jurisdiction over the challenge.
14. Significantly, within weeks of making this request, on December 13, 2002, CIA
annulled my official classification challenge in its entirety. Beginning in December 2002,
CIA suddenly asserted that my "Nl Complaint" was not really an official document;
rather, it was a personal document. And, according to the CIA, personal documents could
not be submitted to ISCAP, nor could they be published while the author remained an
employee.
 12f0512007 15:43 2023305610 MARKZAID ,PAGE 10
1 S. I protested the cancellation. of the challenge to the ISCAP. Ultimately, as I
understand it, the ISCAP Panel agreed with me and ordered CIA to deliver the document
to it. CIA refused to do so. Sometime later, ISCAP chairman William Leonard visited the
CZA where officials apparently persuaded him that l did not really have the right to write
a whistleblower complaint on Latin America since I did not work in that field and was not
an "authorized holder" of the specific classified information. Moreover, it was my
understanding they falsely insinuated to him that I may have broken into databases in
order to obtain material contained in the document. The result was that ISCAP seemingly
relented and changed its position.
16. No doubt anyone reading this declaration is likely saying to themselves "why in
the world would the CIA be so determined to withhold a series o#overt newspaper and
magazine articles and claim they were classified7" Why did my writing a memorandum
alleging government misconduct based sol l on public sources cause the CIA such
consternation? I was provided the answer in May 2002 during a conversation with the
then Information Release officer of the CIA's Directorate of Operations, William
McNair. He told me privately in his office the real reason he would continue to classify
the "M Complaint". With his voice tinged by exasperation he said something very close
to the following:
"Look, Frana, do you think 1 core about [two words deleted by CIAJ?
This is not about 'source protection, ' thrs is about CIA's reputation. We
don't want you to have arty credibility. The problem with the "M"
memorandum is that what you've written is all true."
 PAGE 11
McNair also privately acknowledged during the same conversation that my May 10, 2001
memo was based solely on open source information and that it seemed to be reasonably
well-sourced.
17. Contrary to CIA's assertions that I did not source my May 10, 2001, memo, the
document is actually sourced in quite amount of detail, as described below, although
perhaps not according to the academic standards of Harvard University. At no time was 1
ever informed by the P1tB that 1 needed to source my document in a specific manner or
utilizing a particular method. Anyone who reads the document carefully will find a
specific source and a date attached to most entries in the chronology and a full list of
sources in the bibliography, The body of the "M Complaint" is based on the chronology.
Moreover, as can be plainly seen in the a-mail June 30, 2006, the CIA conceded that 1 did
demonstrate that my sources were all overt.
18.1 personally delivered source documents to the PRB in the autumn of 2004 and
then in Surrtmer 2005. I was under the clear impression that I needed only to prove that
my sources were overt and 1 wanted the documents released after I retired in August
2005. 1 discovered only a few days before retiring in August 2005 that absolutely no one
iz- PRB had taken the time to review the materials I had submitted nearly one year earlier!
As far as i know, they did absolutely nothing with the documents at all during that time.
At my last meeting with the PRB on August 10, 2005, they now asserted that not only
must I demonstrate that the sources were unclassified (which they privately
acknowledged was the case) but that everything should be rewritten in anon-official
format, that I must add their formal disclaimer, and that every entry in the chronology
 12/0512007 15:43 2023305610 MARKZAID
PAGE 12
must be formatted to their specifications (which are explained nowhere in their
regulations). These concerns had never been raised before.
19. The CIA's primary concern, at least as how I interpreted their a-mail to me of
June 30, 2006 and now their arguments before this Court, pertains to formatting design.
For reasons they best understand the CIA does not want me to "publish" the
memorandum in an official looking format, whatever that might be. Of course, the format
I used for the May 10, 2001, is exactly the format I used for my March 24, 2003 and
May 20, 2004 memorandums which have since been declassified and released in full
(other than names of certain CIA officials).
20. Let me provide sonne explanatory information surrounding my source
documentation for the "1V( Complaint". In understanding the sourcing of the "M
Complaint" it is important to comprehend the specific sections of the docunnent.
Pages i-8 contain a narrative description of the various crimes that I believed, based on
my public source documentation, [one word deleted by CIAJ, and possibly CIA,
committed. It is in a narrative format. Pages 9-21 connprise a historical chronology of the
[one word deleted by CIAJ situation listing 87 entries. Not one page of this section has
been publicly released but I understand the Court has been provided with an unredacted
copy it can review. Pages 22-23 are final comments by me and a call for investigation.
Page 24-25 is a bibliography with 55 different listings plus an "about the author"
statement. There is then a two page "Unclassified Annex: Myths Surrounding CIA's
Relationship with [one word deleted by CIAJ", and a two page "Unclassified Annex:
Was (one word deleted by CIA] an Agent?". Finally, there is also a "Classified Annex"
which remains classified in its entirety.
 .. AGE 13
12/05/200? 15:43 2023305610 MARKZAID
21. The chronology set forth within pages 9-21 is a key section for this Court to
review. Nearly all entries in the chronology follow the same general format: First, the
date of the incident or development in the (one word deleted by CIAj story is identified.
Second a summary of incident, development, or pertinent fact in the [one word deleted
by CIAJ story is noted. Finally, a parenthetic remark containing usually two elements: a)
the specific media source of the fact, development or incident and b) the author's
connment and/or analysis of the fact or development. It was my belief that the
chronological unfolding of the [one word deleted by CIAj debacle was easier to
comprehend and digest in his chronological format. The format was very simple: date,
development, source, author's comment. Most parenthetic entries contain a source end a
comment. Some contain simply the source with no comment; a very small number
contain a comment only. The full names of all of the media sources are listed. in the
bibliography. I should specifically note that all source documents were reviewed by CIA
and all documents were linked to specific entries in the chronology. A11 of the source
documents were eventually returned to me by the PRB.
22. All of the supporting documents that are attached as Exhibits "A" through "000"
to this declaration are annotated according to the entry date in the chronology of the "M
Complaint" or the paragraph number in the body of the document. For instance, some
documents might say "pare one". This means that it is a general fact that supports
paragraph one of the "M: Complaint", which asserts that the press claimed [one word
deleted by CIA] had a relationship with CIA. Other supporting documents might say
"44", " 37", or "79". This means that the cited document corresponded to the 44~', or 3T~
or 79`h entry in the "M Complaint" chronology. Additionally, for example, the first entry
 12/05/2007 15:43 2023305610 MARKZAID
in the chronology is from a long article written by [four words deleted by CIAJ. I
provided the PRB with a copy of the [one word deleted by CIA] article and in the "Nl
Complaint", I provided a brief explanation of who [one word deleted by CIA]
is. Throughout the document I wrote "source: [one word deleted by CIA]" to refer to the
article as the source for information within a particular paragraph. Many entries within
the "M Complaint" state "source: [one word deleted. by CIA], various." [one word
deleted by CIAJ refers to the organization "(three words deleted by CIAJ" and I
submitted only one document from [one word deleted by CIA] as a source. Thus, by
referencing this specific document ~ was identifying information from within the "M
Complaint" as having primarily originated from that article, although there may also have
been support from other sources that I submitted for the same factual assertion.
23. Finally, this Court should also be aware that after I drafted the "M Complaint",1
was forced to author a series of follow-up complaints alleging that the C1A had retaliated
against me. These complaints are also formal whistleblower metr-orandums and dated
March 24, 2003 and May 20, 2004, as well as internal grievances dated January l6, 2003
and November 7, 2003. During the period after I drafted and submitted the "M
Complaint", as just an example of some of the conduct, I was variously told by a number
of different CIA managers that:
? I lacked the qualifications to serve abroad. Yet prior to submitting these
whistleblower memorandums 1 had served successfully in a half dozen different
CIA foreign postings;
? I volunteered to serve in a particularly sensitive country in 2003. I happened to
speak the language, which, was in very short supply, particularly among CIA
PAGE 14
.................
 12!05!2007 15:43 2023305610 MARKZAID
officers. I was informed I was not fit to serve in that country because the CIA did
not wish to read memorandums regarding any of its activities that I would find
fault with. As it turned out, several very public scandals emerged from the CIA's
activities in this country;
? I was grilled on the polygraph about my contacts with Congress, a practice that
could be considered retaliation given that such contacts are a protected activity;
? I was very worthy of promotion to GS-14 ~ that is, if only I would keep my mouth
shut. My supervisor at the time said [could do one thing to improve my chances
for promotion -keep my mouth shut as "this would help a lot";
? I should consider keeping my mouth shut in order to avoid further problems or
conflicts within. the CIA. In fact, one of the OIG investigators actually said this to
me during an interview about my March 24, 2003 complaint;
? I should not talk to younger CIA officers and that I should be given a separate
office in order to limit my contact with them. The supervisor who made this
comment said she feared that I might criticize CIA's historical conduct to
impressionable young officers;
? I was accused of allegedly threatening an office colleague by leaving a yellow
Post-it note asking that she be consistent in her editing, CIA's Office of Security
investigated and found no merit in the charge. This baseless accusation was
nothing more than an intentionally designed form of harassment; and
? I was publicly humiliated by the head of a CIA office when he attributed work to
another employee that he knew I had undertaken.
PAGE. 15
 12/05!2007 15:43 2023305610 MARKZAID
24. Was I retaliated against? From 1980 to 1993, I was promoted on average once
every 2.5-3.0 yeazs. After filing my 1?arst informal human rights complaint in 1994, and
the series of whistleblower complaints in later years, I never once received another
promotion during the time I served with the CIA. Not once in 12 years, from 1993-2005.
25. I strongly believe, based on my over 25 years of CIA experience, that CIA wants
to keep my May ] 0, 2001, memorandum classified because its contents reveal an
undeniable intelligence failure involving illegal actions (and despicable human rights
violations) by an individual with whom the CIA had close relations and disclosure of this
information would prove excruciatingly embarrassing to the organization.
26. The [one word deleted by CI.A.J case in 2007, minor as it may seem to some
observers, is an outrageous example of the lengths to which CIA will go to extinguish
criticism and to negate my First Amendment rights. In the process the CIA will classify.
scores of media articles, all of which were produced by non-CIA (and even non-
governmental and non-American) authors.
27. Finally, !should also note that I fully intend to continue submitting writings to the
PRB for classif cation review. In fact, I submitted a document for review on
Noverraber 12, 2007.
28. In closing, when I retired from the ClA in August 2005, I received a warm
personal letter from then Director of Central Intelligence Porter Goss that said, in part;
.. It takes the conscientious ef~`orts of >auny people to do the important
work of this Agency. You leave with the knowledge that you have
personally contributed to our success in carrying out our mission. Your
dedication and loyal support has measured up to the. high ideals and
traditio>s of the Federal service. May I express to you my appreciation
and extend my best wishes for the years ahead."
 12/0512007 15:43 2023305610 MARKZAID PAGE 17
I do solemnly affirm under the penalties of perjury that the contents of the foKegoing
paper are true to the best of my knowledge.
Date: November I2, 2007
Franz Boening
 .12/05!2007 15:43 2023305610 MARKZAID
Boen~i,Q,? y. CIA, Civil Action No. 07.0430 (EGS)
DECLARATION OF
FRANZ BOENING
EXHIBITS
"A" - "0000"
Withheld At The Request
Of The CIA
 12105/2007 15:43 2023305610 MARKZAID
'I'ELECOPIER TRANSMITTAL SKEET
T0: Mr. Scott A. I{och
Information and Privacy Coordinator
Central Intelligence Agency
Washington, D.C. 20505
[phone]
[phone] fax
FROM: Mark S. Zaid, Esq.
Mazk S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
[phone]
[phone] fax
SUHJECT: Boenin Exhibit
DATE: December 5, 2007
NUMBER OF PAGES TRANSMITTED (INCLUDING COVER SHEET): 18
MESSAGE/CONTENTS:
PLEASE SEE ATTACHED.
CONFIDENTIALITY NO'T'ICE
This fax/telecopy is intended only for the use of the individual to which it is addressed and may
contain information that is privileged or conEdential. If you have received this comm~uztication
in error, please notify us immediately by telephone.