Are you interested in the Justice Department’s seizure of journalist phone records and its broader ramifications? We certainly are. The move is reportedly part of an ongoing investigation into leaks of classified information, and is already receiving harsh criticism. For a discussion of the seizure’s fallout and implications for both the media and the government, check out Archive Executive Director Tom Blanton’s latest appearance on the Kojo Nnamdi Show. Blanton appears with Lucy Dalglish, Dean of the Philip Merrill College of Journalism at the University of Maryland, to debate the DOJ’s gathering of two months’ worth of phone logs that list outgoing calls made by writers and editors.
This post can also be found on the Open Society Justice Initiative website, created in partnership with the National Security Archive.
By Jo-Marie Burt
On the afternoon of Friday, May 10, 2013, a Guatemalan trial court (High Impact Court “A”) found General Efrain Rios Montt, former de facto head of state, guilty of genocide and crimes against humanity. The conviction was for crimes committed against Guatemala’s Maya Ixil indigenous population during Rios Montt’s 17-month rule in 1982 and 1983. The judge presiding over the trial court read out an hour-long summary version of the tribunal’s ruling to a packed courtroom, with the full judgment to follow.
Rios Montt, 86 years old, was sentenced to 80 years in prison – 50 years for genocide and 30 years for crimes against humanity, served consecutively. His house arrest was revoked and the judge ordered his immediate transfer to Matamoros Prison. His co-accused, Mauricio Rodriguez Sanchez, former head of military intelligence, was acquitted of both charges.
The verdict came 30 years after the crimes and 13 years after the complaint was brought by survivors to the Public Ministry. The trial started on March 19, 2013 in an increasingly polarized environment. The three-judge panel of presiding judge Yassmin Barrios and her associates, Patricia Bustamante Garcia and Pablo Xitumul de Paz, overcame several attempts by the defense to derail the process—including one on the day of the verdict—before a sentence was finally handed down.
In issuing its conviction of Rios Montt on genocide and crimes against humanity charges, the court found that witness and expert testimony proved beyond a reasonable doubt that, under Rios Montt’s command, the Guatemalan armed forces elaborated and implemented a series of plans designed to eliminate the Maya Ixil population as a group, since they considered that the Ixil supported the guerrillas.
The summary of the judgment relied on testimony and other evidence presented to the court over the course of the 27 hearings since the trial’s opening. Judge Barrios identified, with specificity, the testimony of expert and fact witnesses that formed the foundation of the court’s judgment. This includes the testimony of more than 90 Ixiles who were direct survivors of violence or relatives of victims and who testified before the court, as well as experts from a variety of disciplines and specialties—forensic anthropologists and archeologists, military experts, academic experts in racism and state discrimination, forced displacement, and sexual violence in armed conflict, among others.
The court found that Rios Montt had command responsibility. According to Judge Barrios, Rios Montt had “full knowledge of what was happening and did nothing to stop it—having the knowledge of the events, and the power and the capacity to do so.” To support the finding that Rios Montt had knowledge of the crimes, the tribunal noted, for instance, that there were regular reporting requirements (every fifteen days) up the chain of command to the president, evidenced in the annexes of one of the military operational plans entered into evidence in the case.
The court also relied on the military expert witnesses—including the defense’s military expert, General Quilo Ayuso—to find that Rios Montt, as de facto head of state, knew or should have known about the actions identified in the indictment. (“[C]onsideramos que el acusado, José Efraín Ríos Montt, tuvo conocimiento de todo lo que estaba ocurriendo y no lo detuvo a pesar de tener el poder para evitar su perpetración.”)
The court further relied on these experts to find that Rios Montt authorized the military operational plans. The court found that Rios Montt actively developed the national security plan. It also found that he ordered the development of Plan Victoria 82, knew of it and authorized its enactment.
The court ruled that the prosecution and civil parties had proved the concrete crimes identified in the indictment—the murder of 1,771 Ixiles, the forcible displacement of 29,000, and at least 9 cases of sexual violence, and various cases of torture. The court described the nature of the violence deployed against the Maya Ixil as including indiscriminate massacres, rape and sexual violence against women, infanticide, the destruction of crops to induce starvation, the abduction of children, and the forcible displacement and relocation of surviving populations into militarized “model villages.”
The court also described the forced participation of the population into self-defense patrols (patrullas de auto-defensa civil, or PACs) as a method of destroying modes of self-governance and undermining local indigenous authorities—who implemented and enforced the obligation that men join the patrols.
Drawing on the evidence presented, the court was “totally convinced” that there was an intention on the part of the Guatemalan army to eliminate the Maya Ixil as an ethnic group, and that the elements of the crime of genocide were met. (“[E]stamos totalmente convencidos de la intención de producir la destrucción física del grupo ixil.”) The court found that the crimes were committed as part of a systematic plan to destroy the Maya Ixil as a group, and not spontaneous acts. The court found that there was sufficient evidence presented of planning by the military high command, including in the aerial bombing campaigns in the mountains which affected the most vulnerable.
Racism, the tribunal found, was one of the causes of the genocide.
In reading a summary of the judgment, Judge Barrios highlighted that the military documents themselves demonstrated that, among the objectives of the armed forces was the destruction, at least in part, of the Maya Ixil, who it considered to be the enemy. Some of the military operational plans of the time—Plan Victoria 82, Plan Firmeza 83, and Plan Operacion Sofía—outlined efforts to systematically attack the Maya Ixil who were perceived to be rebellious, difficult to control and the social base of the guerrilla.
The court described Victoria 82 and Firmeza 83 as outlines of the military objectives, and Operacion Sofia as the concrete operationalization of these objectives. For instance, telegrams annexed to Plan Operacion Sofia establish that children were captured and detained in military installations, and that the military had control of the population.
The court found that the Army, under Rios Montt, did not distinguish between unarmed civilians and people who were armed. The court also noted the killing by soldiers of fetuses—“the seed that has to be eliminated”—as support for the finding of sufficient intent to commit genocide.
Women were raped, Judge Barrios said, not only as the “spoils of war,” but as part of the systematic and intentional plan to destroy the Ixil ethnic group by exercising violence on women’s bodies as a way to destroy the social fabric and thereby ensure the destruction of the Ixil population. Judge Barrios made specific reference to the testimony of one woman, who narrated how she was raped by more than 20 soldiers while she was held prisoner in a military base. The tribunal noted that sexual violence results in pain and suffering that is still experienced by many of the women, and that the violence has an inter-generational effect, noting that women reproduce life as well as culture.
The tribunal made reference to the forensic evidence presented in court, as well as statistical evidence presented by Patrick Ball showing that 5.5% of the Ixil population had been killed during the period in question—with the Ixil killed at a rate eight times higher than that of the ladino population.
Rodriguez Sanchez was acquitted of all charges. The court found that, as director of intelligence, Rodriguez Sanchez did not have command responsibility, and that his responsibility for and involvement in the crimes had not been sufficiently established.
The court relied in part on the prosecution’s military expert, Robles Espinoza, who stated that the military intelligence unit (D2) was not involved in operations and could not authorize any actions. (“D2 no tiene injerencia en el campo de operaciones y no se le puede responsabilizar de ninguna acción.”) The court did recognize that Rodriguez Sanchez, in his role as director of military intelligence, elaborated the military operational plans.
Despite Rodriguez Sanchez’ acquittal, the court ordered him to remain detained (in a military hospital), as he has been, until the sentence is final (firme). According to his lawyer, the sentence should be entered on Friday, May 17, but it could take up to four months before the sentence is considered final.
In her concluding remarks, Judge Barrios stated, “without justice, there will be no peace.” She affirmed that the implementation of justice helps with the recognition of the truth and the assurance that these types of crimes will not be repeated. She further ordered the Public Ministry to continue its investigations of others who may have responsibility for these crimes.
The tribunal scheduled two further hearings—on Monday, May 13 at 8:30 am to hear the court’s ruling on reparations for the victims; and on Friday, May 17 at 3 pm for the reading of the full judgment.
The Courtroom: Before and After the Verdict
The mood was tense in the hours leading up to the sentencing. Witnesses, observers, and the press filed into the courtroom for the 8 am hearing. That final hearing of the trial included only Rodriguez Sanchez’s final statement and a call for the parties to reconvene at 4 pm for the verdict. Many observers, fearful that they would not be able to get back into the building, or that there would be no more space in the courtroom, remained until the sentencing in the afternoon.
Early in the day, Judge Carol Patricia Flores, a pre-trial judge who handles evidentiary and other matters in connection with the case, generated uncertainty when she emitted a ruling re-affirming her April 18 annulment of the trial and its regression to November 2011—a time before the indictment of either Rios Montt or Rodriguez Sanchez. Some legal experts assured those present that once the oral phase of the trial was completed, no further injunctions could prevent the sentence from being handed down, but the uncertainty remained until the judges returned to issue the verdict just after 4 pm.
By the afternoon, the courtroom was packed to standing room only, and many struggled to enter. At the end of a turbulent week, expectations were high.
Supporters of the former head of state applauded Rios Montt’s entry into the courtroom before the verdict was read, and strongly criticized the verdict afterwards. Family members of the two defendants were in the courtroom, including Rios Montt’s daughter, Congresswoman Zury Rios Montt, as well as members of the Guatemalan Association of Military Veterans (AVEMILGUA) and the Foundation Against Terrorism (Fundacion Contra el Terrorismo), who have staunchly opposed the trial.
They were far outnumbered, however, by survivors, relatives of victims, and their supporters, who cheered in elation in response to the tribunal’s verdict. Among those in attendance were Rigoberta Menchú, who brought the first genocide case against Rios Montt before a Spanish court (La Audiencia Nacional), and Helen Mack Chang, sister of Myrna Mack, who was killed in 1990 by members of the Presidential High Guard (Estado Mayor Presidencial) due to her work researching violence and its aftermath among Ixil and other Mayan communities.
Immediately after the pronouncement of the verdict, chaos broke out as it seemed that Rios Montt, with his attorney, Francisco Garcia Gudiel, was perhaps trying to leave the courtroom through a side door. Judge Barrios shouted that Rios Montt could not be permitted to leave without police escorts transporting him directly to prison.
“The sentence is condemnatory, and it must be implemented,” Judge Barrios called out, her voice trembling. She ordered security to protect the two exits while she sought the support of the police and the Office of the Human Rights Ombudsman (Procuradoria de Derechos Humanos).
Judge Barrios also shouted to Rios Montt’s attorneys: “As lawyers you must not obstruct the application of justice!” Judge Barrios told the lawyers that they could leave, but that the accused was prohibited from leaving. She restated that the panel of judges would remain in the courtroom until the police arrived to escort Rios Montt to prison. Judge Barrios urged the people in the gallery to begin filing out in an orderly fashion, though most remained until after Rios Montt was transported to prison.
Judge Barrios struggled to maintain order in the courtroom, and it took at least 30 minutes for the police escorts to arrive even though it had been anticipated that a verdict would be announced at that time. Security arrangements seemed improvised at best.
The press corps contributed to the chaos. Journalists and photographers swarmed around Rios Montt to register his reaction to the verdict. The press ignored the judge’s repeated and strident demands that they step back from Rios Montt, instead continuing to register his declarations. At one point, the defense table collapsed under the weight of all the press leaning or sitting on it to get a shot of the now condemned general.
Eventually the National Police arrived, and the chaotic situation dissipated.
As calm returned to the courtroom, the crowd began to sing a poem by Otto Rene Castillo: “Here, no one cried / Here, we only want to be human / Eat, laugh, fall in love, live / Live life, not die.” The song and its haunting words evoked the memory of those who died in Guatemala’s internal armed conflict.
At around 6 pm, Rios Montt was escorted out of the courtroom to a cell at the Matamoros military base. As he left the room, more applause and chanting ensued: “Justice! Justice! Justice!” “This is what a real judge looks like!” And, simply, “Yassmin! Yassmin!,” recognizing the tribunal’s presiding judge. Some of the Maya Ixiles stood up and called out “Tantixh!”—thank you!—to the three judges, bowing their heads. Judge Barrios replied with appreciation of the recognition, but with insistence that “we are only doing our duty.”
In the minutes between the verdict and Rios Montt’s departure to Matamoros Prison, Rios Montt spoke willingly to the assembled press. According to media reports, he claimed that the tribunal was “an international show trial that will affect the heart and soul of the Guatemalan people.” He affirmed that he was at peace, despite the court’s verdict, as he believed he had obeyed the law and not caused bloodshed of his “brothers.” (“Es un show político internacional que va a afectar el alma y el corazón del pueblo guatemalteco, pero nosotros tenemos paz porque nunca derramamos o no nos manchamos las manos de sangre de nuestros hermanos.”)
In contrast to the statements of his most ardent defenders, who have asserted that the country needs to avoid prosecutions to prevent destabilization, Rios Montt said “the only way to have peace is through justice.” However, he insisted that justice was lacking in the court’s sentence. (“La única manera de tener paz es haciendo justicia y precisamente de eso adolecemos hoy.”)
Rios Montt further stated that the judgment was not grounded in law and would be overturned, and that the judges ruled based on “institutional or personal” interests rather than the interests of the country.
Rios Montt’s attorney, Garcia Gudiel, said that there were 12 pending legal challenges, and also asserted with confidence that the judgment would fall on appeal.
Reactions to the Verdict
The impact of the Rios Montt judgment has been hailed as historic. For the first time, a domestic court has proven capable of investigating, prosecuting and sentencing an accused former head of state for genocide. The Rios Montt trial and verdict are being discussed as an example of justice for Latin America and the world.
At the same time, due to the fact that the process unfolded in a context of massive and recurring legal and political challenges, many observers questioned at various stages whether this demonstrated that the obstacles to such a prosecution were too monumental for the Guatemalan justice system. The numerous legal challenges lodged at different judicial authorities stymied the trial for several weeks, and left even some of the lawyers confused. The prosecution and civil parties repeatedly identified their perception that the defense used these amparos, or constitutional challenges, as a way to threaten the continuation of the trial, rather than as legitimate efforts to protect the rights of the accused.
Further, at some critical instances, some highlighted that the trial demonstrated the risks of political interference and corruption. At the start of the trial, President Otto Perez Molina stated that, in his view and based on personal knowledge, he did not believe that there was genocide in Guatemala. After the temporary suspension of the trial, high-profile former government officials identified that the charges and the trial threaten to destabilize the country; soon after, President Perez Molina strongly endorsed this view. By this point, a witness had already implicated the president in controversial testimony.
President Perez Molina’s position shifted markedly as the trial progressed. After the judgment, President Perez Molina insisted that he respected the independence of the judiciary and the trial’s judgment in this case. He highlighted the verdict as an “opportunity” for reconciliation. However, he also noted that the sentence against Rios Montt had not yet been ratified. Moreover, he repeated his long-stated assertion that in Guatemala “there was no genocide”—qualifying this that it was “based on [his] experience.” In an extended interview with CNN En Español after the conclusion of the trial, the president was forced again to confront the fact that a witness in the case had explicitly implicated him in related crimes.
The environment around the trial became increasingly polarized as it progressed, and that did not dissipate after the verdict. Throughout the trial, high-profile voices in Guatemala vociferously challenged criminal prosecutions of military officers for human rights violations. They contested that a genocide ever occurred and viewed the prosecution as undermining the role of the military in saving the country from falling into the hands of communist rule.
After the verdict, on Sunday, military families marched in front of the Matamoros military base in support of Rios Montt. Also on Sunday, the powerful business association CACIF (the Coordinating Committee of Agricultural, Commercial, Industrial, and Financial Associations) called for the verdict to be overturned. CACIF rejected the tribunal’s legal reasoning, saying the intention to commit genocide had not been adequately demonstrated; charged the tribunal with violating due process and other procedural guarantees; and insisted that the sentence was politically motivated, fuelled polarization and undermined the rule of law in Guatemala.
In the end, the recognition of the significance of the judgment was hailed by domestic and international actors. The Center for Legal Action for Human Rights (CALDH), one of the civil parties to the genocide trial, applauded the verdict, affirming that the judgment “confirms what has been claimed over the past 30 years, and acknowledges that crimes against humanity should be punished in order to ensure that they never again occur.”
Sebastian Elgueta, representing Amnesty International, stated: “With this conviction, Guatemala leads by example in a region where entrenched impunity for past crimes sadly remains the norm.” James Goldstone, Executive Director of the Open Society Justice Initiative, identified that this verdict demonstrates that accountability “for the gravest international crimes” is possible “despite the considerable political challenges that such prosecutions can face.”
The U.S. Embassy in Guatemala also issued a statement on Sunday recognizing the verdict as important for the rule of law in Guatemala and an opportunity for “true reconciliation” and progress forward. In its statement, the Embassy highlighted that “it was not Guatemala, as a country, that was on trial, but two individuals, one of whom was acquitted and the other convicted.”
For Helen Mack, a Guatemalan human rights defender, the trial marks a watershed for Guatemala—the first time Guatemala’s indigenous population have had an opportunity to make their voices heard in a court of law, and a demonstration that truth and justice for the victims can be achieved through peaceful, democratic means.
Benjamin Geronimo, on behalf of the survivors’ group Justice and Reconciliation Association, the civil party which initiated the case, recognized that this conviction is important but only part of a larger struggle. There will be certain appeals, and according to Geronimo, there should also be further prosecutions.
Emi MacLean, Legal Officer of the Open Society Justice Initiative, contributed to the research and writing of this blog.
Justice Department “Reclassifies Documents,” Fights to Withhold Ground-breaking Immigration Court Decision on El Salvadorian Vides Casanova
UPDATE: 7 May 2013, Department of Justice releases less-redacted version of decision. See less-redacted version of decision here. The New York Times is still waiting on a response to a FOIA request to the DOJ for release of the entire court record of this case including transcripts and expert witness testimony on declassified documents.
The Department of Justice (DOJ) continues to earn its second annual Rosemary Award for Worst Open Government Performance with its abysmal performance regarding a ground breaking decision in an immigration case of Carlos Eugenio Vides Casanova, former defense minister of El Salvador who is implicated in dozens of cases of torture and extrajudicial execution. To withhold this information from the public the DOJ made up FOIA procedures and erroneously withheld previously declassified information in its misguided attempt to preserve secrecy surrounding the case.
The New York Times filed a FOIA request, numerous appeals, and eventually filed suit against the DOJ, for copies of Judge Grim’s final decision regarding the U.S. Immigration Court case against Vides Casanova. Last week, the New York Times partially won the FOIA case by getting a copy of Judge Grim’s February 2012 decision released, but with redactions. Among the redactions were all of the witnesses’ names, even though it was a public hearing and their names are available thanks to extensive news coverage. Additionally, the expert witness report, which includes hundreds of pages of declassified U.S. documents obtained by the National Security Archive and used as evidence in the court is being held from the public as “confidential.” These documents remain confidential despite the fact that they were released through the FOIA and through President Clinton’s executive orders for declassification in response to the El Salvador Truth Commission request.
Here is the chronology of the New York Times battle to get the written decision of a public trial released:
- September 2012 – NYT submits a FOIA for the full release of both decisions written by Judge Grim in February and August of 2012.
- October 2012 – DOJ denies request claiming that the decisions were “preliminary,” and the agency had not issued a final agency decision. The DOJ also cited personal privacy concerns. [This is absurd. The hearing was public, and the general outline of the decision was made public in February of 2012, while the details were withheld.]
- November 2012 – NYT files an administrative appeal, arguing that it knew “nothing about the FOIA exemption determination that would turn on the absence or existence of a final decision,” arguing that the denial was improper.
- January 2013 – DOJ denies the appeal, simply citing the B6 exemption, making no reference to whether the decisions were preliminary or not.
- February 2013 – NYT submitted a letter to the DOJ stating that the denial of access is contrary to the First Amendment and common law rights of access.
- April 2, 2013 – NYT files suit against the DOJ in the District Court of New York after receiving no response to February letter.
- April 4, 2013 – DOJ responds to February letter without mention of lawsuit, treating the February letter as “request for reconsideration” (which does not exist as a procedure of the FOIA) and releases a redacted version of Judge Grim’s February 2012 decision.
The DOJ is the agency in charge of enforcing the FOIA. How can the DOJ appropriately enforce the FOIA if it does not follow the FOIA itself? This is also especially worrisome considering the rosy report on the state of FOIA presented by Melanie Pustay, director of the Office of Information Policy at DOJ.
Why this all the more important…
Carolyn Patty Blum, a human rights attorney of the Center for Justice and Accountability explains that “this [Vides Casanova] may be the highest military commander of any country” who has been subject to a new law stating that a commander can be ordered removed from the United States, if he has “ordered, assisted or participated in torture or extrajudicial killing. Key to the ruling is that it is sufficient to know or have reason to know about the acts of subordinates and then fail to prevent or punish those acts.” The New York Times reports that this is the first time that a high-ranking foreign military commander will be deported under the new human rights violations law which was passed in 2004.
This is also the first time to have a ruling about very specific cases of torture, extrajudicial killings and/or disappearance. Judge Grim’s finding that General Vides Casanova “assisted or otherwise participated” in the killing of four churchwomen is probably the best known case in the US.
The implications that this case has on the human rights world are huge, and important precedents have been set – all the more important that the DOJ moves to release the report in its entirely, along with expert witness reports and accompanying documentation, rather than going out of its way to act contrary to DOJ’s very own Attorney General Eric Holder’s memo calling agencies to act with a “presumption of openness.”
This post can also be found on ForeignPolicy.com.
By Jeffrey T. Richelson, Malcolm Byrne
At a time when Chinese malware is targeting America’s computer infrastructure and U.S.-Israeli worms (e.g., Stuxnet) have reportedly attacked Iranian centrifuges, a recently declassified item from the National Security Agency (NSA) offers a little history on how at least one part of the U.S. government foresaw its role in the growing field of “Information Warfare.”
This short item from a classified NSA publication reveals that as far back as 1997 the super-secret agency was tasked with finding ways not just to listen in on our enemies (the NSA’s usual stock-in-trade), but actually to attack hostile computer networks. The document proclaimed that “the future of warfare is warfare in cyberspace,” and it sketched out how tomorrow’s “Information Warriors” would think, act, and fight on the new digital battlefield.
The NSA’s involvement in cybersecurity is an outgrowth of its longtime role in ensuring communications and information security for various components of the government and private sector, in addition to its need to guarantee the security of the computers it has relied on heavily for decades. Its role in computer-network exploitation — of gathering electronic “data at rest” — is a natural extension of its decades-old role of gathering “data in motion” via signals intelligence.
According to the document’s author, a former special assistant to the NSA’s director, the new activities — not just “exploitation” and “protection,” but “attack” — were “sure to be a catalyst for major change” at the agency. But, he pointed out to his colleagues, there should be no doubt that a new age of warcraft was dawning, brought about in no small part by changing mores in American society. Because of the information age, he wrote, “physical combat can be viewed in living rooms of America via television,” and as a result, “[t]he horrors of war cannot be hidden.” Therefore, “in the simplest of terms, ‘body bags’ are no longer acceptable,” and there is “considerable societal pressure to find non-lethal means of accomplishing tasks that once called for conventional military action.”
By all accounts, we’re now seeing signs of that new-age approach, although whether its repercussions will be entirely non-lethal remains to be determined.
UPDATE: The Archive’s latest EBB from Jeffrey T. Richelson shows that since at least 1997, the National Security Agency (NSA) has been responsible for developing ways to attack hostile computer networks as part of the growing field of Information Warfare (IW), according to a recently declassified internal NSA publication. The NSA’s Computer Network Attack (CNA), comprises “operations to disrupt, deny, degrade or destroy” information in target computers or networks, “or the computers and networks themselves,” according to the NSA document, which is one of 98 items the Archive is posting today that provide wide-ranging background on the nature and scope of U.S. cyber activities. Check out the EBB on the Archive’s website for a detailed overview of U.S. cyber concerns, and for an interesting precursor to cyber warfare get reacquainted with Agent Farewell, the CIA’s modification of Soviet computer technology, and the subsequent Siberian Pipeline explosion.
Agent Farewell and the Siberian Pipeline Explosion
Around Halloween 1982, an explosion occurred in the middle of Siberia, vaporizing a large segment of the newly-built trans-Siberian pipeline. The explosion –which was reported to be 1/7 the magnitude of the nuclear weapons dropped on Japan during WWII– severely damaged the pipeline, which was set to produce $8 Billion in petroleum revenue annually for the USSR. Only recently has this silently successful CIA operation been disclosed to the public.
The tale begins with agent “Farewell,” Vladimir Vetrov, a Colonel who served as one of the heads of the KGB Directorate tasked with stealing Western technology. In 1981, disillusioned by Soviet life, Vetrov suddenly sent French Intelligence, le Direction de la Surveillance du Territoire (DST) – a collection of over 4,000 pages of highly classified Soviet documents pertaining to industrial espionage ventures. It was immediately clear that the intelligence was vital. The data included the names of 250 KGB agents (located abroad and well covered), tasked with stealing Western technology, but the most useful item was a “wish list:” the technologies most sought by the Soviet intelligence. Read more…
President who Eviscerated Presidential Records Act Relying on His Presidential Library to Boost Legacy.
George W. Bush views today’s opening of his Presidential Library at Southern Methodist University as, “a way for the public to get all the facts so that they can make an educated decision about how they regard him and what he did in office.”
Really? That’s the same George W. Bush that signed Executive Order 13,233 that gave former Presidents and their heirs (as well as former Vice Presidents for the first time) indefinite authority to hold up release of White House records? My, have the times changed.
Fortunately, for those who believe in access to historical records, President Obama revoked this damaging executive order on his first full day in office. (Just one of a slew of pro-transparency measures he has not gotten proper credit for.)
Executive Order 13,233 was signed by President Bush on November 1, 2001, so that his White House Counsel –not the National Archives– could review 68,000 pages of records from the Reagan Presidential Library, and decide if the public had the right to read them. These documents included a six-page 8 December 1986 memo to the President and Director of Public Affairs entitled, “Talking Points on Iran/Contra Affairs”; a series of memos dated 22 November and 1 December 1988 for the President entitled, “Pardon for Oliver North, John Poindexter, and Joseph Fernandez”; and a two-page memo for the President from the Attorney General, “Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987.”
At the time, Bush’s decision to make his administration a Presidential Records censor was met with widespread opposition and dismay for his decision to ”effectively rewrite the Presidential Records Act in its inverse image; converting the Act from a measure guaranteeing public access to one that blocks such access.”
The National Security Archive and other public interest groups filed a lawsuit to revoke the Executive Order, which was partially won. A judge found that the Bush administration had acted “arbitrarily, capriciously, and contrary to law by relying on the Executive Order to delay release of the records of former presidents,” but failed to answer whether former presidents, former vice presidents, and their heirs can can stop the disclosure of presidential records.
The issue was not fully resolved until January 21, 2009, when President Obama revoked the Executive Order –igniting a hope (as yet not completely fulfilled) that his administration would truly be transformatively transparent.
But even after Obama instilled a basis of historical fairness to the release of presidential records, the Presidential Library System remains a mess. The Presidential Records Act does not allow requesters to even begin requesting documents until five years after president has left office. After that, a president can invoke as many as six specific restrictions to public access for up to twelve years. Then, regular FOIA and national security exemptions still apply. (Documents from the Eisenhower Library –and probably earlier– remain classified.)
More troubling, is that for the most important historical documents there is no plan or system for a well-organized, planned release. Rather, documents are simply deemed “closed” until a requester submits a FOIA request for a particular folder or series of folders. Then, the folders are reviewed, and any document with classified material is automatically and blanketly denied (no line by line review). If the requester is savvy enough, he can request a declassification review, but that is another painful process. In some instances, declassification reviews need to be signed off by as many as 14 different government agencies. This is exactly what is happening to an important document that the National Security Archive requested from the George H. W. Bush Presidential Library in 2004, and has not yet received.
(Of course, high level officials like Douglas Feith and Donald Rumsfeld get to cut the line and get their documents declassified so they can include them in their memoirs –and get their hefty advances.)
If President Bush truly cares about allowing the public to see the documents of his presidential legacy, he should put down his paintbrush and start advocating for reform of the US Presidential Library and declassification systems.
Or maybe Bush is playing the long game. He told Barbara Walters, “history will ultimately decide that [my legacy], and I won’t be around to see it.” Unless the system is reformed, he might be right.
The USS Pueblo: “The cost of this deployment to the nation in terms of the amount of cryptologic material compromised was enormous.”
Last week’s episode of AMC’s Mad Men featured a passing reference to the USS Pueblo, an American SIGINT ship captured by North Korean forces on January 23, 1968, and the only commissioned US Navy ship still in foreign possession. While the reference was short, the dramatic, real-life account of the Pueblo was an intelligence breach of enormous proportions, and, followed by the downing of a US reconnaissance EC-121 plane over the Sea of Japan in 1969 by a North Korean MiG-17, encouraged the Nixon Administration to develop contingency plans that would allow the use of tactical nuclear weapons against Pyongyang.
On January 8, 1968, the Pueblo sailed from Sasebo, Japan, to its position off the North Korean coast with the mission to “draw emissions from North Korean communications.” At 12 PM on January 23, a day after North Korea attempted to assassinate South Korean President Pak Chong-hui, the Pueblo was approached by a North Korean vessel challenging its nationality. At 1:28 the Pueblo reported that the Koreans intended to fire on them, at 2:10 the crew requested “some help,” and at 2:25 reported they had “been directed to come to a stop. Destruction incompleted. Some publications will be compromised.” An epic understatement according to the 1992 National Security Agency report of the incident declassified in 2012, which claims that there was a massive amount of classified material and cipher equipment confiscated by the North Koreans and likely passed on to the Soviet Union and China.
The full extent of the classified information and equipment on board may have been unknown to President Johnson and his advisors at the time, who, during a lunch meeting on January 29, were more concerned with how the Pueblo’s capture would affect their position in Vietnam. Johnson was especially sensitive to concerns that any action against North Korea would detract from troop levels in Vietnam, arguing, “[t]here is no need to call up the reserves for Vietnam. In fact, General Westmoreland would rather go without the reserves in Vietnam. ..Of course we could call up the reserves at anytime without Korea if we wanted.”
On January 30, the same day the Tet Offensive began, the President was pushed by House Minority Leader Gerald Ford, the man LBJ accused of spending “too much time playing football without a helmet,” to be more critical of the events that lead to the Pueblo’s capture. Ford claimed he would have gotten rid of all the intelligence equipment on board, even if it meant sinking the vessel himself. Johnson, for his part, admitted he would have requested help earlier. Though, the president conceded that “[p]robably the luckiest thing that happened to us was that we did not send people in there and have another Bay of Pigs. Darkness was approaching. Snow was falling.”
The blistering NSA account of the intelligence lost with the Pueblo contradicts the president’s claim.
On December 23, 1968, the US wrote (and quickly rescinded) an apology for spying, and without any military action being taken, the crew of the USS Pueblo was released. The Pueblo Crisis spurred the Nixon administration to develop contingency plans for Pyongyang’s aggression that included “a long list of nearly 25 military options, ranging from evacuation of U.S. personnel in a crisis to limited nuclear strikes using kiloton-range nuclear weapons that involved possible casualties in the thousands.”
 The amount of intelligence compromised as a result of the Pueblo incident was magnified by the discovery of the Walker Sky network, which operated within the US Navy and passed high-level ciphers to the Soviets from 1967 through the mid-1980s, meaning that the Soviets were receiving US ciphers by the time they possibly had access to the USS Pueblo decoding equipment. See page 157 of the NSA report for more.