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The U.S. government came to like the work of historian David Kahn, who passed away in 2024. The National Security Agency (NSA) honored him three times for his research on cryptography and espionage: with a “scholar-in-residence” title in 1993, a ceremony making his personal library part of the National Cryptological Museum in 2010, and a hall of fame induction in 2020.

But decades before, the U.S. government considered that personal library an alarming security threat. The FBI has declassified its files on Kahn, which Reason obtained under the Freedom of Information Act. Although it is publicly known that the NSA tried to stop Kahn from publishing his 1967 magnum opus, The Codebreakers, the new files show that Kahn had caught the feds’ attention a decade before, with the case making its way up to FBI Director J. Edgar Hoover himself.

Kahn’s FBI file is one of those rare government documents with a personality. His curiosity, equal parts cheeky and naive, shines through the FBI agents’ dry recap of events. The file is also a time capsule from the early Cold War, an age when cryptography—now the infrastructure that makes the modern internet possible—was still an obscure dark art for math nerds.

In 1953, the U.S. Army Counterintelligence Corps caught wind that Kahn, then a 23-year-old enlisted reservist and part-time ice cream truck driver, was mailing “restricted Army documents” to another man named Frederic C. Flindt. The corps alerted the FBI, which set up a stakeout on August 6 at the post office in Flindt’s hometown of Woodbury, New Jersey. 

As expected, Flindt picked up a certified mail package from Kahn with a collection of government cryptography manuals inside. The FBI agents pounced, but Flindt was totally cooperative, even showing the agents his other letters with Kahn.

Alongside his Army reservist training, Kahn was taking correspondence courses on how to use the Army’s cipher machines and forwarding the materials for Flindt to copy and return. He wrote to Flindt that the course material would “be a valuable permanent addition to both our libraries. But I do not have the time nor the money either to copy it myself or to get it copied.”

Kahn also warned Flindt “to take the greatest precautions” lest they be “chucked into the calaboose.” Flindt agreed to keep it “confidential,” and offered to show Kahn his own collection of translated European cryptography guides. In other words, they were building an unauthorized archive of cryptographic history.

“It was my intention to use the material obtained from David Kahn for reference material to write a history of cryptology after it had been declassified,” Flindt told the FBI agents.

Flindt and Kahn had met through a civilian club called the American Cryptogram Association. A few years later, The New York Times covered a meeting of the association as a nerdy curiosity. Kahn excitedly spoke to a reporter about his hobby under the pseudonym “Ishcabibel,” the same pen name he signed his letters to Flindt (“Nip N. Bud”) with.

After interrogating Flindt, the FBI moved on to Kahn, who told his interrogators that he sent Flindt that particular manual because “he considered it to be a collector’s item and to be well-written.” Both Flindt and Kahn come off as painfully naive; Kahn admitted that he “realized that classified material should not be passed on to unauthorized individuals but from his review of the material he saw no reason for its being restricted as there was nothing in this material which was not known to cryptographists,” according to the FBI agents’ paraphrase of the interview.

A point in Kahn’s favor: All of the material he sent to Flindt was about to be declassified in a few months anyway. The documents were marked “Restricted,” a security classification that President Dwight D. Eisenhower abolished in November 1953, automatically declassifying the materials in that category. Indeed, Kahn pointed out to the agents that he was able to buy a cipher machine and its “Restricted” manual from military surplus vendors “before I ever had access to any restricted Army cryptographic material.”

But betting on the forgiveness and graciousness of government agents is a very bad wager, especially from behind an interrogation table. The FBI confiscated both the papers and the cipher machine. On September 17, a little over a month after the post office sting operation, the agents’ report landed on the desk of Hoover. He wrote to the Department of the Army asking “whether your Department would interpose any objection to the introduction of the material not legally in subject’s possession in evidence in the event of prosecution.” It was not looking good for Ishcabibel and Nip N. Bud.

A few days later, Kahn’s father called the FBI. By coincidence, Kahn had just returned home to his parents in Great Neck, New York. His father, a lawyer, was no doubt horrified that his son had been blabbering about potential crimes to government agents. In November, the younger Kahn was kicked out of the Army, and the elder Kahn called the FBI again to say “that his son was immature in many respects and was definitely not a person who should be given the label ‘a security risk’ for the rest of his life,” according to a Department of Justice memo.

The momentum within the FBI to prosecute Kahn and Flindt seems to have died out soon after. In February 1954, Kahn actually called the FBI asking to get back the papers and cipher machine from before his Army service because he “wished to continue code studies.” A few weeks later, FBI agents knocked on Flindt’s door—this time, to return his belongings.

That close brush with the law didn’t deter Kahn. In fact, he started actively reaching out to the FBI. In March 1955, he asked the local FBI field office whether anyone would be interested in giving a speech to the New York Cipher Society, another cryptographic club. The assistant special agent in charge noted in the margins of the letter that “even though Dept. of Justice declined prosecution,” Kahn was obviously unworthy of having his request considered.

The feds eventually started warming up to Kahn. In 1961, while Kahn was working at the newspaper Newsday, the FBI gave him information about Soviet spy Rudolf Abel and other espionage cases. (Kahn had excitedly raved about the Abel case in the Times story about the American Cryptogram Association.) In April 1964, Kahn asked the FBI for another photo of Abel’s codebook and an explanation of its color scheme for a new book he was writing.

“Despite Kahn’s background,” an FBI official wrote in a memo, “there appears to be no reason why we should not make a copy available to Kahn.”

However, the same memo warned that Kahn was interviewing retired military officers and the book “likely falls within the scope of national policy against release of information related to communications intelligence.” It noted that the U.S. Intelligence Board, a council of spy agency leaders, recommended “further low-key action short of legal action to discourage Mr. Kahn or his publishers from providing possible available security information to foreign governments.”

According to Kahn’s New York Times obituary, the NSA actually considered breaking into Kahn’s house. Instead, the agency contacted Kahn’s publisher, asking for the book to be censored. Kahn agreed to take out only a few paragraphs about World War II-era codebreaking efforts that were still classified.

The new files show that the FBI, too, opened an investigation into him while he was working on the book. Although most of the details are redacted, the file shows that FBI agents contacted no less than 11 informants in April 1964 to ask about Kahn, to no avail. They closed the case “in view of the fact that subject is currently self-employed as a writer, and an interview of him might cause possible embarrassment to the Bureau, and he has used extremely poor judgement in the past, and he is believed too unreliable for the informant program.”

Decades later, the feds would have a very different view of Kahn. The NSA website states that “hundreds [of NSA staff] told him they had first gotten into cryptology because of his writings” and that Kahn “has done more than any single individual to educate the public, around the world, about the importance of cryptology to international peace and security.” His ultimate legacy in the government’s eyes is a far cry from the security threat that the FBI saw in the 1950s or the unstable but harmless crank that the bureau saw in the 1960s.

Still, the same doggedness and sense of whimsy that got a young Kahn in trouble also enabled his later success. When the photo of Abel’s codebook turned out to be too small for print, Kahn appealed to Hoover himself to send a bigger copy. “I am reluctant to trouble you again, but, following the principles of persistence I learned from the FBI…feel that it is necessary,” he wrote.

The post Before the NSA Honored Historian David Kahn, the FBI Investigated Him appeared first on Reason.com.

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From Tassinari v. Salvation Army, decided Monday by Judge Leo Sorokin (D. Mass.); I’d love to hear what list members think of it:

[Plaintiffs] assert that TSA maintains a policy at its Adult Rehabilitation Centers that prevents such individuals from accessing medication for their disorder [including methadone and buprenorphine for Opiod-Use Disorder [OUD]], in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Fair Housing Act, 42 U.S.C. § 3604…. [The Salvation Army] operates twenty-nine Adult Rehabilitation Centers (“ARCs”) in that territory. TSA refers to ARC participants as “beneficiaries.” ARCs provide beneficiaries with housing and basic living necessities for six to twelve months, during which time beneficiaries live on site and participate in “work therapy” by working full time at the ARCs or processing donated goods for resale at Salvation Army thrift stores….

TSA views ARCs as “residential churches,” and it considers the operation of ARCs to be one of the ways it practices its religion. TSA considers “the highest priority of the ARCs” to be “bring[ing] the beneficiaries into a personal relationship with God.” ARCs “serve[ ] men and women with social, emotional and spiritual needs who have lost the ability to cope with their problems and provide for themselves.”

Beneficiaries need not be Salvationists—the vast majority are not—and they may continue to practice their own religion if they do so on their own time. But all beneficiaries are required to acknowledge that The Salvation Army is a church and must agree to participate in Salvationist religious activities as a condition of their ARC participation. Beneficiaries meet at least biweekly with their assigned spiritual counselor. They must also attend Sunday morning chapel services, a midweek service, daily devotions, and weekly Bible classes.

Abstinence from alcohol and addictive substances is a core tenet of The Salvation Army’s religious beliefs. sincerely believes, as a matter of its religion, that long-term use of narcotics to treat addiction is not true rehabilitation, and that “abstinence and the power of God unto salvation is the only form of successful rehabilitation.”

TSA requires, as a condition of ARC participation, that beneficiaries abstain from alcohol and certain drugs [including methadone and buprenorphine]. Beneficiaries must submit to urine drug testing when they apply for ARC admission and at regular intervals thereafter. Applicants with positive urine tests for a proscribed drug are generally required to “detox” before admission, although under some circumstances ARC policy permits such an applicant to be admitted if they have not used drugs for the prior forty-eight hours….

TSA operates other social-service programs, and in some of those programs, it permits—and even provides—buprenorphine and methadone to participants with OUD. At TSA’s Harbor Light Centers, for instance, TSA permits participants to use buprenorphine and methadone if those MOUDs are deemed medically appropriate for the participant and as consistent with state and federal guidelines. Harbor Light Centers include state-licensed halfway houses and certified “residential subacute detox” and “intensive outpatient treatment” facilities….

The court concluded that TSA was immune from liability under the church autonomy doctrine:

The undisputed facts establish that TSA regards ARCs as residential churches whose highest priority is to “bring the beneficiaries into a personal relationship with God.” The facts describe a lengthy evangelist program, running six to twelve months, aimed at rehabilitation through spiritual healing—essentially, a religious conversion program that requires beneficiaries to practice Salvationism…. The Court can no sooner order TSA to abandon its Salvationist understanding of “abstinence” than it can order an Orthodox Jewish synagogue not to separate its congregants by sex….

Plaintiffs assert that the Medication Policy reflects a flawed, outdated understanding of
“addiction” and is internally inconsistent, permitting beneficiaries to use some substances with the potential for abuse or addiction while prohibiting prescribed MOUD [medications for OUD]. They note TSA permits or provides methadone and buprenorphine as MOUD in some of its other social-service programs, and they hold up that fact as evidence both that nonbelievers’ use of those medications does not violate TSA’s sincerely held religious beliefs and that TSA could, as a practical matter, permit beneficiaries to safely use these medications.

On the facts of this case, these contentions miss the mark. The Salvation Army—not the Court—determines Salvationist doctrine. That TSA drew some aspects of its Medication Policy from a secular source does not render its policy nonreligious. Indeed, from a lay perspective, any number of religious rules or doctrines can be viewed as arbitrary, inconsistent, or irrational—but these rules or doctrines are matters of faith, not susceptible to civil adjudication under our Constitution. The Court may not and does not evaluate the correctness, internal consistency, or centrality of TSA’s religious beliefs. See Hernandez v. Comm’r of Internal Revenue (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”); cf. Thomas v. Rev. Bd. (1981) (“Courts are not arbiters of scriptural interpretation.”). The “abstinence” rule is part and parcel of TSA’s evangelist efforts to bring ARC beneficiaries into a “personal relationship with God.” Judicial scrutiny of this church doctrine is precluded by the First Amendment.

And the court rejected the argument that TSA had waived its rights by accepting federal funding:

To the extent TSA may waive its church-autonomy defense (something the Court assumes without deciding), such a waiver must be knowing and voluntary. A generic agreement to abide by all terms of federal funding does not sufficiently put TSA on notice that, by accepting federal funds, it waived its fundamental constitutional right to determine matters of faith and doctrine free from governmental interference….

Andrew Holmer, Daniel William Wolff, and Thomas P. Gies (Crowell & Mooring LLP) and Kevin M. Hensley (Barton Gilman LLP) represent The Salvation Army.

The post Salvation Army Has First Amendment Right to Ban Methodone Use by People in Its Adult Rehabilitation Centers appeared first on Reason.com.

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From Sullivan v. Schiman, decided Tuesday by the Illinois Appellate Court (Justice John Anderson, joined by Justices Linda Davenport and Matthew Bertani):

Schiman posted on Facebook—falsely—that [Dr.] Sullivan sexually abused her during [a medical examination at a hospital] …. Following a multi-day bench trial, the circuit court agreed that Sullivan was actually (not just presumptively) harmed but awarded $1 in nominal damages….

On January 23, 2022, Schiman went to the St. Margaret’s Hospital emergency room for treatment of severe abdominal pain. Sullivan, an emergency physician, performed a physical examination of Schiman. Based on the examination, Sullivan informed Schiman that he recommended performing a rectal exam to assess for the presence of blood and mucus. Schiman consented, and Sullivan performed the exam with a nurse present.

Shortly after the exam, Schiman accused Sullivan of performing an unnecessary rectal exam in an aggressive manner. The next day, she filed complaints with the hospital, the Illinois Medical Board, and the Spring Valley Police Department, alleging that Sullivan sexually assaulted her during the exam. On March 25, 2022, the Bureau County State’s Attorney’s Office declined to file any charges and closed the case.

On March 31, 2022, Schiman posted the following statement (the Post) on Facebook:

“WARNING SPRING VALLEY/PERU/SURROUNDING AREAS: DR. WILLIAM SULLIVAN, an ER doctor at St. Margaret’s Hospital, Spring Valley—SEXUALLUY ASSAULTED ME IN THE ER, WITH a nurse in the room. He was supposed to give me a rectal exam (I have had endless exams like this, I’m a 30 year Crohns pt) & without lube, he shoved his fingers aggressively up my rectum & when I cried out he violently twisted his hand inside of me. My rectum was torn. The nurse told me ‘he didn’t know you had been raped before!’ When I called someone in from the hospital, they isolated me & wouldn’t let my mom back. When they finally let her back, they gave her 5 min & stood with us the entire time. They then let him continue to treat me all evening. I had to do a rape kit exam & police interrogation. The state [sic] attorneys [sic] office threw out charges without even speaking to me. HE HAS A MEDICAL MALPRACTICE LAW DEGREE AND A MEDICAL DEGREE. He knows EXACTLY what he can get away with. The police told me this is not his first complaint to them. Yet St. Margaret’s keeps him on & defends him. DO NOT GO THERE. This man is violent & aggressive. Please don’t let your loved ones near him or this hospital!!!”

Schiman posted the statement on the City of Peru Updates and Information Facebook page (the City of Peru Facebook page). Perez, the page’s administrator, commented that he believed the post was true and compared Sullivan to another local physician who had been charged with a sex crime. Perez then made the Post a “featured post” so that it would be the first post on the Facebook page….

Here’s an excerpt from the appellate court’s discussion of the evidence at trial regarding the examination:

Sullivan learned that Schiman came to the emergency room complaining of abdominal pain. She had also visited the emergency room the previous day with a complaint of a headache. The earlier-treating physician had ordered lab work and an anti-inflammatory named Toradol.

According to Sullivan, when he first evaluated Schiman, she told him that she had taken Toradol that day and that she had already exceeded the maximum dose, so Sullivan cancelled the dose of Toradol. Schiman indicated her pain level was 10 out of 10. Schiman asked Sullivan what he was going to do about her pain and he stated that he was not comfortable giving her additional opiates to treat the pain. Sullivan was also uneasy prescribing opiate medication because “several things with her story weren’t matching up” and the previous day she received a large dose of Dilaudid, a strong opiate.

Sullivan did a full exam of Schiman. Based on the exam and her history of colitis, he was concerned Schiman had a colitis flare-up. In light of her pain and medical history, Sullivan informed Schiman that a rectal exam was needed, and she consented to the exam.

Per normal procedure, Sullivan asked a nurse, Megan McNally, to be present during the exam. McNally retrieved the lubrication and gloves and set them on a tray next to Schiman’s bed. Sullivan put on the gloves and lubrication and performed the exam. Sullivan indicated there was no blood on the glove, disposed of the gloves, washed his hands, and left the room.

After Sullivan exited the room, McNally likewise left the room and informed Sullivan that Schiman was upset because he had not asked her if she had been raped before. She also told Sullivan that Schiman made a complaint to an administrator at the hospital that the exam was aggressive and unnecessary. Schiman also requested that Sullivan stay out of her room unless absolutely necessary. Sullivan did not go back into the room….

And the appellate court’s analysis:

Here, the trial court found that the defendants’ statements and comments constituted defamation per se. That finding is not contested. The trial court acknowledged that the law presumes damages for per se defamatory statements and further found that Sullivan suffered damages of “mental anguish.” …

This case involves defamation per se, which has presumed damages. “Presumed damages are those which the law presumes must actually, proximately and necessarily result from the publication of the defamatory matter.” Again, these damages are inherently imprecise in connection with the harm suffered. The damages awarded are “an estimate of the extent of the loss the plaintiff has suffered in the past and would suffer in the future, either from a monetary or enjoyment of life standpoint.”  … [T]he evidence “need only tend to show a basis for the computation of damages with a fair degree of probability.” …

Here, the trial judge awarded only nominal damages, seemingly due to a lack of understanding of how reputational harm damages are assessed. Nominal damages are issued when a legal wrong has taken place but there was no actual, meaningful loss as a result of the legal wrong. Such damages are awarded when the insignificant character of the defamatory statement leads the trier of fact to conclude that no substantial harm has been done to the plaintiff’s reputation, and there is no proof that serious harm resulted from the defendant’s attack on the plaintiff’s character and reputation….

Here, a physician was publicly accused of committing a violent sexual assault under the guise of a medical examination. Several thousand people allegedly saw the accusation. No reasonable person can describe such an allegation as trivial or inconsequential. And even though Sullivan was not required to plead or prove reputational harm because the statement was defamatory per se, we observe that he testified that he was humiliated following the Post. He testified, and his wife corroborated, that he suffered loss of sleep, embarrassment, concern, changes in temperament, and changes in the way he treated patients….

The court therefore remanded the case for the trial judge to determine the magnitude of emotional distress damages.

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