In a case being called a "Rock 'n' Roll Watergate," attorneys for a UC Irvine history professor asked a federal appeals court Tuesday to compel the FBI to turn over documents it gathered 17 years ago in an investigation of former Beatle John Lennon.
Lawyers for Jon Wiener, author of the 1985 book "Come Together: John Lennon in His Time," contend that if the FBI is allowed to continue to withhold the documents, which Wiener has been seeking since 1981, it would make a mockery of the federal Freedom of Information Act.
"This case is not only about providing a respected historian with decades-old documents," said Mark Rosenbaum, an American Civil Liberties Union attorney. "This case tests how government may invoke the phrase 'national security' to deprive citizens of their rights under the Freedom of Information Act."
Rosenbaum told the judges that he could envision some situations where the government would not have to disclose information to citizens, such as plans for reallocation of NATO troops "in light of developments in Eastern Europe." But he emphasized that this was not such a situation.
Rosenbaum said it is "preposterous" for the government to assert that 17-year-old documents on a singer who has been dead for nine years could endanger national security, U.S. relations with a foreign government, internal stability of a foreign government or the confidentiality of a government informant.
Wiener claimed that the government's reluctance to turn over the documents has nothing to do with national security.
"My guess is that the withheld pages contain material that would be damaging to the FBI, showing illegal wiretaps and harassment of Lennon," said Wiener in an interview outside the U.S. 9th Circuit Court of Appeals in Pasadena.
However, Justice Department lawyer Miriam Nisbet said the files contained "no politically embarrassing revelations and no illegal activities." But she added that the materials were exempt from the Freedom of Information Act on grounds of national security, the need to protect federal informants and intelligence methods and possible injury to relations with foreign nations.
She urged the three appeals court judges considering the case--James R. Browning, Warren J. Ferguson and Mary M. Schroeder--to affirm a February, 1988, decision by U.S. District Judge Robert M. Takasugi holding that the government was not obligated to release 69 documents to Wiener, about a third of its file on Lennon.
Six years ago, the FBI turned over more than 100 of its Lennon documents, but many of the pages had a substantial amount of material blacked out.
The material released earlier showed that the FBI closely monitored Lennon's activities in 1971 and 1972. The documents indicated concern that Lennon would support then-Sen. George S. McGovern (D-S.D.) for President against Republican incumbent Richard M. Nixon in 1972. The files also revealed that government officials were worried that Lennon might participate in protests at the Republican National Convention in Miami in 1972.
The files included transcribed lyrics of Beatles songs, photocopies of album covers, newspaper articles on Lennon's anti-war activities and music reviews. The files revealed that copies of some surveillance reports were sent to H. R. Haldeman, then-President Nixon's chief of staff, and FBI Director J. Edgar Hoover. Rosenbaum emphasized that the investigation revealed no criminal activity on Lennon's part.
Among the files on which the FBI is still withholding information is part of a surveillance report on a December, 1971, anti-war rock concert and rally in Ann Arbor, Mich., where Lennon urged that imprisoned activist and singer John Sinclair be released from a Michigan prison, where he was being held on a 10-year sentence for possession of two joints of marijuana.
The FBI classified the entire report as "confidential" for 10 years, relying upon a Freedom of Information Act exemption from disclosure of "information which is currently and properly classified in the interest of national defense or foreign policy," even though song lyrics that were in the file had been reprinted on the back of a 1972 Lennon album, according to ACLU attorneys.
The FBI now takes the position that the remaining portion of the file must be kept confidential because of another exemption in the law, one that states disclosure "could lead to the identity of the source" being discovered.
Wiener's co-counsel, Dan Marmalefsky, said 15,000 people attended the concert, making it highly unlikely that the identity of the informant will be revealed by disclosing more of the document.
In his 1988 decision, Takasugi cited nine sworn statements submitted by FBI and CIA officials, most of them made during a closed-door session in his chambers, as demonstrating that the files had been lawfully withheld.
The judges took the case under submission. It could be several months before there is a decision.