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The FOIA Request that Cost Agency Employee Jeffrey Scudder His Job Finally Results in CIA Posting Trove of Studies in Intelligence Articles

September 22, 2014
Jeffrey Scudder shares his story about how his career unraveled. (Theresa Poulson/The Washington Post)

Jeffrey Scudder shares his story about how his career unraveled. (Theresa Poulson/The Washington Post)

In response to a hard-fought FOIA lawsuit brought by former agency employee and IT specialist, Jeffrey Scudder, the CIA has posted a collection of 249 unclassified and declassified Studies in Intelligence articles to its website.

Scudder, then a project manager for the CIA’s Historical Collections Division, filed a FOIA request in 2o07 for 419 Studies in Intelligence articles after discovering “a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public.” During the process of filing the request, Scudder was “confronted by supervisors and accused of mishandling classified information while assembling his FOIA request. His house was raided by the FBI and his family’s computers seized. Stripped of his job and his security clearance, Scudder said he agreed to retire last year after being told that if he refused, he risked losing much of his pension.”

Despite the agency’s harassment, Scudder carried on with his FOIA request, inevitably filing a FOIA lawsuit for the documents’ release. As part of his initial request, Scudder asked that the documents be released in electronic format – the form that they were already in. The CIA, however, continued its common practice of refusing to release soft copies of its records – ostensibly for security reasons – and told Scudder he could only have hard copies of the articles, which would cost Scudder twice as much. Scudder sued the agency, contending that the CIA was frustrating his efforts to obtain the documents –and charging him double for doing so. District Court judge Beryl Howell agreed with Scudder, writing that “Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

The CIA changed course after Judge Howell’s finding, found a “creative solution” to the problem, and posted 249 records online (with the remaining 170 documents withheld in full).

Since Scudder’s case became public, the CIA has stated that it “does not retaliate or take any personnel action against employees for submitting [FOIA] requests or pursuing them in litigation,” and has, citing budget cuts, disbanded its Historical Collections Division.

While the silver lining to the CIA’s attempt to both conceal historically significant documents and intimidate Scudder is that many of the documents are now publicly available, the fact remains that many of the documents — which should have been publicly available in the first place — were posted with unnecessary redactions. Matthew Aid, for example, already possesses two fully declassified and unredacted articles that the CIA recently posted, with heavy redactions, to its website. According to Aid, “This is a typical case of the left-hand not knowing what the right-hand is doing, and just further demonstrates that the CIA’s FOIA system is urgently in need of a major overhaul.”

Below are 20 intriguing articles from the CIA’s release that caught our attention. Please comb through them – and the others – and tell us what’s worthy of note in them!

FOIA Reform Bill on Senate Judiciary Agenda, State Secrets, and Much More: FRINFORMSUM 9/18/2014

September 18, 2014
The Senate Judiciary added the FOIA Reform bill to its agenda this week. Pictured: Chuck Grassley (R-IA)(L) and Chairman Patrick Leahy (D-VT)(R).

The Senate Judiciary added the FOIA Reform bill to its agenda this week. Pictured: Chuck Grassley (R-IA)(L) and Chairman Patrick Leahy (D-VT)(R). Image courtesy of Senate Judiciary website.

The Senate Judiciary Committee added the FOIA Improvement Act of 2014, S.2520, to its agenda this week. The much-needed bill addresses the runaway b(5) exemption, strengthens the FOIA ombuds OGIS, promotes more proactive online access to government information, and prevents agencies from charging some FOIA fees when they miss their deadlines. As OpentheGovernment.org’s Amy Bennett noted, S.2520 “would help ensure that historical records are available on a timely basis [and] would stem the worst abuses by allowing a court to weigh in where necessary to make sure records that would show waste, fraud, abuse, or illegality are released.” If the bill is held over for a week, which is standard practice for the Judiciary Committee, it means that Senators Patrick Leahy (D-VT) and John Cornyn’s (R-TX) bipartisan FOIA reform bill will be first up on the Committee’s agenda for the lame duck session.

The Department of Justice (DOJ) has invoked the state secrets privilege in a private defamation lawsuit brought by Greek shipping mogul Victor Restis against United Against Nuclear Iran. The group consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” The DOJ initially intervened in the suit, which Restis brought after the group accused him of violating sanctions by exporting oil from Iran, to shield the group’s files, including its donor list. Last week, however, in what Mr. Restis’ lawyer, Abbe Lowell, said “There is no precedent, literally,” for the government doing, it asserted the state secrets privilege for undisclosed reasons and asked the court to dismiss the proceeding. As Steven Aftergood points out, however, “The government acknowledged in its privilege memorandum that its proposal to dismiss the case on state secrets grounds was unfair to the parties, but it said that it was the lesser of two evils.”

In another state secrets case, a federal judge said this week that “he would require in camera review of documents that the government says are protected by the state secrets privilege. The issue arose in the case of Gulet Mohamed v. Eric Holder, challenging the constitutionality of the ‘no fly’ list.” The court disagreed with the government’s argument that it would be “inappropriate” for the court to verify the documents in order to determine the validity of the privilege, with Judge Anthony J. Trenga of the Eastern District of Virginia noting in a footnote “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring. See Reynolds v. United States, 345 U.S. 1 (1953), in which it became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets….”

A recently declassified – albeit heavily redacted – Foreign Intelligence Surveillance Court (FISC) order is raising concerns over the scope of First Amendment protections. According to reporting by the Washington Post, Judge John D. Bates’ February 2013 order suggests “an American can be investigated as part of a terrorism investigation when he has done nothing more than exercise his First Amendment right of expression — as long as that speech shows sympathy for the terrorist group’s illegal activities.” When the DOJ was asked if Section 215 of the Patriot Act permits the government to obtain American citizens’ records when their free speech sympathizes with terrorism or is somehow “subject[] of a wider investigation,” a DOJ spokesperson said “It’s a hypothetical.”

The FISC recently approved the government’s latest request to continue the National Security Agency’s (NSA) mass surveillance of Americans’ call records for another 90 days. This is the third time the FISC has approved the government’s request to continue the NSA program since President Obama announced in January that he would reform it. The current order is set to expire on December 5, 2014.

The Google Transparency Report showed a continued increase in govt requests for information. Image courtesy of Techspot.

The Google Transparency Report showed a continued increase in govt requests for information. Image courtesy of Techspot.

Google’s latest transparency report, covering statistics from the first half of 2014, shows that US government requests for Google users’ data shot up 19% from the previous reporting period covering the latter half of 2013, and were up a whopping 250% from 2009. The requests from the US outpaced Google’s worldwide requests, which increased 15% and 150% respectively for the same time periods. While Google stated it did not always comply with the orders, recently disclosed court documents from Yahoo’s fight against government requests for its users’ data show a compelling reason why a tech company would comply. The documents reveal that in 2008 the government threatened to fine Yahoo a quarter of a million dollars a day if it didn’t surrender its users’ online information.

There is renewed tension between the CIA and the Senate Intelligence Committee in the wake of CIA director John Brennan’s refusal to tell the Committee who authorized agency employees to spy on Senate staff while it worked on a report highly critical of the CIA’s torture program. In August, and in direct contradiction to the Brennan’s previous claims, a CIA Inspector General (IG) report showed the agency did spy on Senate Intelligence Committee staff, finding specifically that five agency employees – two lawyers and three IT specialists – “improperly accessed” a database committee staff was using to complete its five-year, $40 million report. Brennan apologized to committee chairwoman Sen. Dianne Feinstein (D-CA) after the IG report was made public, though was reported to have “raised his voice at Feinstein” over the spying during a closed-door meeting latest week.

In a special posting for Unredacted, the University of Washington’s Trevor Griffey examines how flooding of the FBI archives in Alexandria, Virginia destroyed hundreds of thousands of pages of files related to Civil Rights movement history. Griffey notes, “Such reckless and inconsistent file implementation of records management standards, resulting in tragic and unnecessary destruction, demonstrates that the FBI is not the proper custodian of its own historic archive… the recent massive archival losses from flooding, combined with the FBI’s inconsistent approach to archival preservation, suggests the need for much greater oversight by the National Archives before more historically valuable files are destroyed.”

Some of the key players in the Nixon administration debate on the Israeli nuclear program standing outside the Pentagon on 14 June 1969, for Flag Day ceremonies. Shown from left to right are JCS Chairman Earle Wheeler, President Richard Nixon, and Secretary of Defense Melvin Laird. National security adviser Henry Kissinger can be seen further to the right. (Photo source: National Archives, Still Pictures Division, RG 342B, box 1156)

Some of the key players in the Nixon administration debate on the Israeli nuclear program standing outside the Pentagon on 14 June 1969, for Flag Day ceremonies. Shown from left to right are JCS Chairman Earle Wheeler, President Richard Nixon, and Secretary of Defense Melvin Laird. National security adviser Henry Kissinger can be seen further to the right. (Photo source: National Archives, Still Pictures Division, RG 342B, box 1156)

Archivist William Burr’s latest posting from the Nuclear Vault, “Israel Crosses the Threshold II: The Nixon Administration Debates the Emergence of the Israeli Nuclear Program,” provides new documentation on how the Nixon administration “looked the other way” while Israel developed its first nuclear weapons. According to newly declassified documents, the DOD’s Paul Warnke warned in early 1969 that the Israeli nuclear program was “the single most dangerous phenomenon in an area dangerous enough without nuclear weapons,” though Nixon would ultimately override his concerns, and “the near consensus of senior U.S. officials,” regarding the threat posed by the Israeli program.

Finally, this week’s #tbt document pick – and recently picked up by Reddit’s TIL feed – is a March 1967 CIA report entitled “Views on Trained Cats [Redacted] for [Redacted] Use,” more popularly known as the CIA’s “acoustic kitty” project. In what the CIA described as a “remarkable scientific achievement,” though later conceding it was not a “practical eavesdropping device,” the CIA stuffed a live cat with electronic spying equipment and attempted to train it to become a Cold War spy. After the cat had batteries and wires placed inside of it and an antenna inserted into its tail, several CIA agents took it outside to a park to see if it would, well, work. The cat was promptly hit by a taxi instead. The project cost 15$ million.

Happy FOIA-ing!

Senate Judiciary Poised to Act on FOIA Reform Bill

September 17, 2014
Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R).  (Photo by Mark Wilson/Getty Images)

Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R). (Photo by Mark Wilson/Getty Images)

The Senate Judiciary Committee took a big step towards addressing much needed FOIA reform this week when it added the FOIA Improvement Act of 2014, S.2520, to its agenda. If the bill is held over for a week, which is standard practice for the Judiciary Committee, it means that Senators Patrick Leahy (D-VT) and John Cornyn’s (R-TX) bipartisan FOIA reform bill will be first up on the Committee’s agenda for the lame duck session.

Sens. Leahy and Cornyn are both long-time FOIA advocates, and their current efforts to strengthen the FOIA includes several important fixes geared to dislodge agencies from their continued intransigence and refusal to embrace a “presumption of disclosure.”

The Rise of B(5).  Chart by Lauren Harper, compiled from AP statistics

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

The most important thing the FOIA bill addresses is the misapplication of the b(5)exemption, which  potentially covers any “inter-agency or intra-agency memorandums or letters.” While Congress intended it to be applied sparingly, the exemption is nicknamed “withhold it because you want to ” due to its expansive scope and discretionary application. Earlier this year the The Associated Press found, and the Department of Justice’s Office of Information Policy (OIP) eventually confirmed, that the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government. B(5) was used to hide, among other things, the names of Veterans Affairs Administration hospitals where 19 veterans died due to medical screening delays, historically significant documents on the 20-year-old Rwandan genocide, a 30-year-old history of the 53-year-old Bay of Pigs invasion, and the DOJ’s Office of Legal Counsel opinions concerning highly controversial programs, including enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance.

Melanie Pustay, Director of the Department of Justice Office of Information Policy.  Responsible for enforcing FOIA throughout the US government.  From the US DOJ website.

Melanie Pustay, Director of the Department of Justice Office of Information Policy, is responsible for enforcing FOIA throughout the US government — for better or for worse. From the US DOJ website.

Further evidence that the b(5) exemption needs special Congressional attention was provided by none other than OIP director Melanie Pustay, who testified before the Senate Judiciary Committee this March that the increase of b(5) applications was due to an increase in invoking b(5) for “attorney work product and attorney client information, which is not subject to discretionary release like deliberative process is.” (emphasis added.) In so testifying, Pustay – whose office is in charge of ensuring agencies comply with and fully implement the FOIA, the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines – contradicted her own agency’s guidance circulated after the Attorney General called for more discretionary releases, which states that both “attorney work product” and “attorney client information” are subject to discretionary release.

To address the runaway b(5) exemption, the Leahy-Cornyn bill sets a 25-year sunset for b(5) claims and adds a public interest balancing test to the requirements for agencies to invoke the exemption. As OpentheGovernment.org’s Amy Bennett notes, “this narrowly tailored change to the law would help ensure that historical records are available on a timely basis. It would stem the worst abuses by allowing a court to weigh in where necessary to make sure records that would show waste, fraud, abuse, or illegality are released.”

Given government-wide overuse of the b(5) exemption, it’s well worth noting that on September 3, 2014, the Department of Defense — one of the largest agencies in the federal government — issued fully recodified, legally enforceable FOIA regulations that state (Sec 286.4) “It is DoD policy, pursuant to 32 CFR part 285, to promote government transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA and responding promptly to FOIA requests in a spirit of cooperation.” This is a great start and kudos to the DOD, but it is unlikely many other federal agencies would voluntarily follow suit without Congressional prodding.

In addition to addressing the b(5) exemption, S.2520 strengthens the FOIA ombuds Office of Government Information Services (OGIS), promotes more proactive online access to government information, and prevents agencies from charging some FOIA fees when they miss their deadlines. The bill also directly addresses regulatory shortcomings exposed by three National Security Archive government-wide FOIA audits.

Not quite a nailbiter.

The House unanimously passed a similar FOIA reform bill earlier this year.

Given that the House unanimously passed a similar bipartisan FOIA reform bill, cosponsored by Representatives Darrell Issa (R-CA), Elijah Cummings (D-MD), and Mike Quigley (D-IL), earlier this year, transparency advocates have good reason to be hopeful. For the benefits of S.2520 to be felt, however, it must pass several more hurdles for it to become law. You can help the bill’s chances by contacting your Senators to encourage them to support it, or by writing editorials and Letters to the Editor for your local paper.

Background Material and Further Reading

Archival Neglect: Flooding of FBI Archives Destroyed Hundreds of Thousands of Pages of Files Related to Civil Rights Movement History

September 16, 2014
COINTELPRO

COINTELPRO

Special to Unredacted by Trevor Griffey, PhD

This September 2nd marked the 50th anniversary of the launch of the Federal Bureau of Investigation’s (FBI) only major counterintelligence program (or COINTELPRO) to “to expose, disrupt and otherwise neutralize” right-wing organizations.

The FBI is often known for its opposition to the left rather than its opposition to the right. Ten of the its eleven COINTELPRO operations between 1956 and 1971 illegally sought to destroy the personal and professional lives of those who participated in left wing and anti-racist organizations— from the Communist Party to the Black Panther Party, from American supporters of Fidel Castro to proponents of Puerto Rican independence, from the Nation of Islam to Martin Luther King.

But the FBI’s COINTELPRO against “various Klans and hate organizations” marked an exception. Following years of criticism by civil rights activists who claimed that the FBI was not doing enough to prevent racial terrorism in the South, amidst the revival of the Third Ku Klux Klan, and at the height of the FBI’s investigation of the murder of three civil rights activists in Mississippi in June of 1964, the FBI initiated a campaign to destroy 19 different offshoots of the Third Ku Klux Klan, as well as nine other white nationalist organizations, including the American Nazi Party.

Within a year of first launching its COINTELPRO, the FBI estimated later that roughly 600 of the Klan’s 10,000 members were FBI informants. By 1967, according to a report first disclosed by the Church Committee, the FBI had “set up an entire klavern of the Klan composed of Bureau informants, and that they paid the expenses of setting up the organization” in order to produce a rivalry between an authentic Klan chapter and one under the FBI’s control.[i] The counterintelligence program’s architect, FBI Domestic Intelligence Director William Sullivan, claimed in his posthumously published memoir that “the counterintelligence techniques we brought to our fight against the Klan have been thoroughly damned by the press and the public, but our successful use of these techniques is what finally broke them up.”[ii]

A few scholars— most notably John Drabble and David Cunningham—have written about the FBI’s campaign to destroy the white nationalist movement in the 1960s. But popular memory of it remains low, with most scholarship and popular discussion about COINTELPRO focused on the FBI’s campaigns to disrupt the left.

To what degree were FBI agents and undercover informants in the Klan complicit in hate speech and hate crimes in the 1960s? What effect did FBI repression of the Klan during the 1960s have on the history of the right and on American politics more generally? These and other questions related to the history of the FBI’s COINTELPRO against the Klan deserve further investigation.

But unfortunately, valuable documents through which these and other questions could be investigated were destroyed last year during Hurricane Sandy. In a huge loss from a one-of-a-kind archive that had never been released to the public, somewhere between one fifth and one third of the FBI’s 62,000 page Birmingham, Alabama field office file on the United Klans of America (UKA) was destroyed by flooding of FBI archives in Alexandria, Virginia, according to documents that the FBI released last month to the web site Muckrock.org.

The FBI's response to MuckRock's request for documents on archival damages due to flooding.

The FBI’s response to MuckRock’s request for documents on archival damages due to flooding.

The UKA was a major target of the FBI’s COINTELPRO against white nationalist organizations. And as the “office of origin” for the FBI’s investigation of the UKA, the Birmingham field office played an essential role in the campaign. The Birmingham file on the UKA (file number 105-BH-722) likely contained voluminous materials that cannot be found in other FBI files— including transcripts of conversations recorded using wiretaps and bugs, informant reports, handwritten agent notes, and documentation of the secret society’s membership throughout the United States.

I submitted a FOIA request for a copy of the Birmingham file four years ago. In response, the FBI claimed that it could not locate the file. When I appealed, the Department of Justice’s Office of Information Policy forced the FBI to acknowledge the existence of the 62,000 page file, but the FBI then asked me to pay $2,000 for its declassification. Unable to afford the cost, I passed information about the file to a non-profit that specializes in researching white nationalist organizations. That organization submitted a FOIA request, but was denied a fee waiver. During the subsequent debate over whether to declassify the file for free, the archive containing the file flooded, and a significant part of the file is now lost to historians forever.

Millions of Pages of Files Destroyed

A page from the 630 pages of FBI spreadsheets on damaged files released to MuckRock.

A page from the 630 pages of FBI spreadsheets on damaged files released to MuckRock.

The FBI’s file on the UKA was just one of the thousands of FBI files damaged by flooding during Hurricane Sandy. The FBI provided Muckrock.org with an incomplete list of more than 76,000 volumes of files destroyed by flooding at its Alexandria archive last year, and plans to release more lists in the future. Each volume contained between 1-250 pages of documents, making it likely that millions of pages of documents were lost. And this doesn’t even include the 3,000+ cubic feet of files destroyed in the FBI’s Moonachie, New Jersey facility during the hurricane.

Though it’s difficult to assess the full scope of the damage based on the limited information released so far by the FBI, it’s clear that thousands of pages of files of significance for the study of civil rights movement history were damaged, including:

  • Forty-one volumes (likely over 8,000 pages) from the FBI’s main headquarters file on the National Negro Labor Council (file number 100-HQ-367632)— one of the most important civil rights organizations of the early 1950s, which was driven out of existence by anticommunist pressure.
  • Twenty-four volumes (almost 5,000 pages) from the FBI’s Chicago field office file on Claude Lightfoot (file number 61-CG-867), a prominent black communist for almost 60 years.
  • Nineteen volumes (almost 4,000 pages) from the FBI’s Memphis field office file on the Nation of Islam (file number 105-ME-160).
  • Eight volumes (roughly 1,500 pages) from the FBI’s massive Detroit field office general file on civil rights issues from the 1940s through the mid-1960s (file number 44-DE-00).

Some other files of significance to the study of the left include almost 3,000 pages from the FBI’s main headquarters file on peace activist David Dellinger (100-HQ-384411), and 1,500 pages from the FBI’s Chicago field office on the National Labor Federation (100-CG-55510). The list also documents damage to 300 volumes of Chicago field office files on illegal gambling (182 series), and the destruction of an astonishingly large file (perhaps 300,000 pages) on an unknown topic related to foreign counterintelligence or anti-racist nationalism produced by the FBI’s San Francisco field office (105-SF-16284).

Archival Neglect

The destruction of such historically significant files raises a number of serious questions about the FBI’s archival practices.

One obvious question is why FBI archives were susceptible to flooding, and whether the flooding has exposed weaknesses in the FBI’s records management practices more broadly.

A more important question, however, is: why are these archives in the possession of the FBI at all? Why does the FBI continue to retain millions of pages of historically significant files, many of which are over 50 years old, that have no relevance to its contemporary law enforcement mission? Why have these files not already been transferred to the National Archives?

Many of the historically significant files destroyed in the Virginia flooding included a series of files that were supposed to have been transferred to the National Archives during George W. Bush’s second term— “44 series” files on the civil rights movement. Almost ten years later, these files should not still be in the FBI’s possession.

Other files of major significance to the study of racial justice, the left, and U.S. foreign policy— particularly the FBI’s 105 series files, which include hundreds of thousands of pages of files on the Black Panther Party— remain in the FBI’s possession and decades away from ever being declassified or transferred to the National Archives.

These and other historically significant files that sit in secret FBI warehouses are vulnerable to more than just flooding. Decades-old standards for determining historical significance that tend to treat local history as unimportant, combined with wide latitude granted to FBI records management staff, have resulted in tragic and reckless destruction of many historically significant files.

Field office files are especially vulnerable to being destroyed. For example, there is almost no collection of FBI files of greater popular interest than the FBI’s files on its counterintelligence program against the black freedom movement in the late 1960s. But instead of preserving its field office files on this illegal program in their entirety, the FBI has been profoundly inconsistent. When the FBI assessed 29 field office files from this COINTELPRO for transfer to the National Archives between 2005 and 2008, it only transferred 14 files. It destroyed 12 others files, and withheld 3 from the National Archives.

Such reckless and inconsistent file implementation of records management standards, resulting in tragic and unnecessary destruction, demonstrates that the FBI is not the proper custodian of its own historic archive. This is probably unsurprising. After all, the FBI is led by law enforcement officers with an investment in secrecy, not librarians committed to transparency. But the recent massive archival losses from flooding, combined with the FBI’s inconsistent approach to archival preservation, suggests the need for much greater oversight by the National Archives before more historically valuable files are destroyed.

Trevor Griffey is a Lecturer in U.S. History and Labor Studies at the University of Washington’s Bothell and Seattle campuses. A co-founder of the Seattle Civil Rights and Labor History Project, he is currently working on publishing an online archive of FBI files on the black freedom movement in the 20th century.

[i] Church Committee Hearings, Volume 6 (1976), p. 144 http://archive.org/details/Church-Committee-Hearings-Volume6-FBI

[ii] William C. Sullivan and Bill Brown, The Bureau: My Thirty Years in Hoover’s FBI (New York: Norton, 1979), p. 128

The Able Archer 83 Onsite Collection Now Available to Researchers

September 12, 2014

sourcebookpageBy Elena Burger

The National Security Archive is pleased to announce the release of Nate Jones’s full (to date) collection of Able Archer 83 documents. In addition to the documents posted online in the Archive’s Able Archer Sourcebook, the physical collection, which is now available to researchers, contains new primary and secondary sources related to the NATO war game-turned nuclear war scare that played out across Europe in November of 1983, reverberations from which were felt long after the conclusion of the military exercise.

Some of the most interesting documents in the collection concern not only the lead-up to the military exercise, but its ramifications. Consider the December 30, 1983, CIA memo – drafted less than a month after Able Archer was completed –, titled “Soviet Thinking on the Possibility of Armed Confrontation with the United States.” In it, the CIA’s Office of Soviet Analysis comments on Moscow’s perceived feelings regarding US foreign policy. An excerpt states that US intelligence believed, “The [the Soviets] have charged that the United States is pursuing a nuclear first strike capability and preparing to unleash nuclear war as a means to crushing communism.”

"Soviet Thinking on the Possibility of Armed Confrontation with the United States," Box 1.

“Soviet Thinking on the Possibility of Armed Confrontation with the United States,” Box 1.

Another source highlights the fear felt by Soviet officials at the time comes from a declassified State Department memo regarding Andrie Gromyko’s January 13, 1984, speech in Stockholm, Sweden. In the January 18, 1984, memo, Senior Deputy Assistant Secretary of State John H. Kelly writes to Deputy Secretary of State Lawrence Eagleburger on the strained US-Soviet relationship –while being careful not “to slam the door shut on renewed START and MBFR (Mutual Balanced Force Reduction)” negotiations.

January 18, 1984, memo from Senior Deputy Assistant Secretary of State John H. Kelly to Deputy Secretary of State Lawrence Eagleburger, Box 1.

January 18, 1984, memo from Senior Deputy Assistant Secretary of State John H. Kelly to Deputy Secretary of State Lawrence Eagleburger, Box 1.

 An October 30, 1985, memo reveals more about the key source of the 1983 War Scare –Oleg Gordievsky.  The memo –written by National Security advisor Robert McFarlane for President Reagan– outlines KGB defector Oleg Gorievsky’s suggestions for dealing with Soviet leader Mikhail Gorbachev:

aa83

October 30, 1985, memo by National Security advisor Robert McFarlane for President Reagan, Box 1.

Come and see the entire collection at the National Security Archive.

———–

Ed. Note:  Elena Burger was the primary force behind the organization and cataloging of the Able Archer Onsite Collection.  Many thanks from the Archive.

DOJ Defends Spurious Redactions, Questions Remain about Stellarwind, and Much More: FRINFORMSUM 9/11/2014

September 11, 2014
George Hamilton briefly dated LBJ's daughter, Lynda Bird. It didn't pan out, to LBJ's delight.

George Hamilton briefly dated LBJ’s daughter, Lynda Bird. It didn’t pan out, to LBJ’s delight.

A FOIA lawsuit over a decades-old FBI memo reveals not only the DOJ’s misuse of court resources and insistence on defending spurious FOIA redactions despite their merit, but also LBJ’s use of the FBI to vet a potential son-in-law, none other than actor George Hamilton. Villanova Law School professor Tuan Samahon filed a FOIA request in 2010 with the FBI seeking a memo Samahon wanted for a book he was writing on Supreme Court Justice Abe Fortas. He initially requested a two-page report by Cartha DeLoach, deputy director of the FBI, that Samahon hoped would reveal what, if any, “role the FBI may have played in the 1969 resignation of Fortas from the highest court after only four years.” The FBI released the 1966 memo with redactions, arguing that full disclosure would reveal embarrassing information about a private citizen. Samahon sued in 2012, arguing that there was no legal reason to withhold the document, with US District Judge Eduardo Robreno agreeing and subsequently ordering the release of the document. While the document did not contain the information Samahon initially sought, it did reveal that both Fortas and the FBI helped LBJ, in what Robreno called a “potentially illegal use of executive power,” dig up dirt on a young George Hamilton, who was dating LBJ’s daughter, Lynda Bird, and who LBJ was paranoid might be gay. “The court battle could have been avoided, [Samahon] said, had the FBI just released the documents and distanced itself from the previous administration.” It would also have been avoided, of course, if the DOJ refused to defend the agency’s dubious redactions in the first place.

Representatives Walter Jones (R-NC) and Stephen Lynch (D-MA), with the support of the Saudi government, are leading a bipartisan effort to declassify 28 pages that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. The Bush administration excised the pages, which detail Saudi involvement in the 9/11 attacks, on the grounds that their disclosure would harm national security. Rep. Jones contends, however, that the pages were withheld not to protect national security, but to hide aspects of the Bush administration’s relationship with the Saudis. According to Thomas Kean, chairman of the 9/11 Commission, the intense focus on the contents of the 28 pages overshadows the more important fact that “a ton of stuff” used for the Commission report, including interviews with Presidents Bill Clinton and George W. Bush, and Vice President Dick Cheney, remains classified. Kean said in an interview with the New Yorker’s Lawrence Wright, “I don’t know of a single thing in our report that should not be public after ten years.”

Matthew Aid recently posted a Government Accountability Office (GAO) report, “Personnel Security Clearances: Additional Guidance and Oversight Needed at DHS and DOD to Ensure Consistent Application of Revocation Process,” to his website. The GAO report found that both DHS and DOD’s implementation of the executive orders regulating security clearance procedures “have resulted in some employees experiencing different protections and processes than other employees,” and that the DOD is unaware how many of its employees currently have security clearances. “As a result, the total number of government employees eligible to access classified information that ODNI reports to Congress likely overstates the number of eligible DOD employees.”

A more fully declassified version of the 2004 Department of Justice Office of Legal Counsel (OLC) memo approving the National Security Agency’s (NSA) Stellarwind surveillance program, “a set of warrantless surveillance and data collection activities that President George W. Bush secretly authorized after the terrorist attacks of Sept. 11, 2001,” has been released. The newer version of the memo (initially disclosed during a FOIA lawsuit) was voluntarily declassified by the Obama administration “in light of the fact that it had declassified the existence of the bulk phone and email data programs last year after leaks” by NSA contractor Edward Snowden. The recently released version of the memo, however, still redacts why the Justice Department determined in 2004 that one aspect of Stellarwind, concerning the bulk collection of American’s emails, was illegal, while the continued collection of bulk phone records was not.

Cuba Intelligence Targeting of Academia

Cuba Intelligence Targeting of Academia

An unclassified five-page September 2, 2014, FBI report, “Cuba Intelligence Targeting of Academia,” asserts, “Cuba’s communist-led intelligence services are aggressively recruiting leftist American academics and university professors as spies and influence agents.” The report emphasizes that Cuba spends significant time “targeting and exploiting” liberal US academia, including “exploiting personal weaknesses and sexual entrapment.” The Washington Free Beacon reports that according to “CI Centre, a think tank, there have been 25 Cuban spies uncovered in the United States since the 1960s, including former CIA officer Philip Agee who defected and worked closely with both Cuban intelligence and the Soviet KGB starting in 1973.” One of the most notorious of the 25 Cuban spies is undoubtedly former DIA analyst Ana Montes, who is currently serving a 25-year prison sentence for spying. Archivist Jeff Richelson recently helped shed new light on the Montes case, successfully seeking the declassification of a 180-page 2005 DOD Inspector General study on her deception.

The DOD recently published its updated proposed FOIA rules in the Federal Register. To the DOD’s credit, the rules codify responding to FOIA requests with a “presumption in favor of disclosure,” and that FOIA responses should be timely. The rules, however, do not mandate that DOD components incorporate Executive Order 13526 section 3.1 (d), requiring agencies disclose “properly classified information” if the public interest outweighs the potential harm to national security (an idea supported by Director of National Intelligence General Counsel Robert Litt), into their declassification decisions. The rules also seem to include an extremely broad interpretation of the b(5) FOIA exemption –including a litany of headshaking examples when the exemption could be used. B(5) withholdings have skyrocketed in recent years to hide everything from a 30 year old history of the Bay of Pigs invasion, to information surrounding deaths due to delays at Veterans Affairs Administration hospitals.  The new DOD FOIA rules continue this trend, listing instances when “drafts of final records” may be exempt, “expert advice from external entities” may qualify as “agency” communications and be withheld,  and ways “factual” material (which usually cannot be withheld from a FOIA requester) can be denied — including staff papers, after-action reports, and inspection reports — pursuant to the b(5) exemption by DOD employees. The public can comment on these new rules by contacting the DOD’s FOIA Liaison, James Hogan, until November 3, 2014.

Former CIA officer David E. Murphy, left, and former KGB officer Sergei A. Kondrashev pose in 1997 at the exit of an espionage tunnel in Berlin. (Reuters)

Former CIA officer David E. Murphy, left, and former KGB officer Sergei A. Kondrashev pose in 1997 at the exit of an espionage tunnel in Berlin. (Reuters)

David Murphy, who served as the CIA’s Berlin Operations Base chief from 1959 to 1961 and later as the agency’s Soviet Operations chief, recently died at the age of 93. Murphy presided over CIA operations in Berlin in the tense lead-up to the construction of the Berlin Wall, and later co-wrote a book with KGB officer Sergei A. Kondrashev – who handled British double-agent George Blake – and journalist George Bailey on Blake’s revelation to the KGB that British and Americans planned to build a tunnel into the Russian sector that would allow them to tap Soviet communications. According to the book, the KGB’s desire to protect Blake’s cover meant, “the Soviets could do virtually nothing to shield their communications.”

This week’s #tbt document pick concerns another part of Murphy’s career: CIA chief of counter-intelligence’s, James J. Angleton, “molehunt” for Soviet agents within the CIA. Angleton, along with KGB defector Anatoliy Golitsyn, promulgated the concern of a Soviet “Monster Plot” at the CIA, asserting that the Soviets had conducted a “decades-long, massive and successful deception operations against the West, including the use of false defectors and volunteers,” with David Murphy falling under the wide-ranging suspicion. While Murphy was later exonerated and CIA director William Colby forced Angleton out of the agency in 1974, today’s #tbt document pick is the Secret December 2011 Studies in Intelligence article on the effects the “molehunt” had on internal CIA operations and personnel, including David Murphy (page 14).

Happy FOIA-ing!

Why FOIA’s Loophole Needs Legislative Suture

September 10, 2014
bio_lauren

Archivist Lauren Harper

This article originally appeared in The Brechner Report.

The Tampa Tribune reporter Howard Altman submitted a Freedom of Information Act request to the Department of Veterans Affairs earlier this year to learn the names of hospitals where 19 veterans died due to medical screening delays.

Despite nationwide reports citing the deaths and the high public interest in information on the circumstances surrounding them, the VA denied Altman’s request, citing the b(5) “deliberative process” exemption. The VA argued that the documents Altman was seeking were “preliminary,” and that because “of potential variances in the preliminary data, premature release of this information would inaccurately inform the public concerning this matter.”

The b(5) exemption cited by the VA potentially covers any “inter-agency or intra-agency memorandums or letters” and Congress intended its application to be narrow in scope. Agencies, however, are increasingly citing the b(5) exemption to hide any “draft” or “predecisional” document from the public, leading to the nickname the “withhold it because you want to” exemption.

In addition to hiding potentially embarrassing or illegal activities at the VA, the b(5) exemption has also been used to withhold historically significant documents on the 20-year-old Rwandan genocide; shield a 30-year-old history of the 53-year-old Bay of Pigs invasion from public scrutiny on the spurious grounds that its release could “confuse the public;” hide a report critical of the Department of Justice’s workplace diversity initiatives; and deny access to the DOJ’s Office of Legal Counsel opinions, which form a body of law that binds all federal agencies concerning highly controversial programs, including enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance.

The Rise of B(5).  Chart by Lauren Harper, compiled from AP statistics

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

According to statistics compiled by The Associated Press earlier this year, the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government. These numbers confirm that the b(5) exemption is proving to be an increasingly attractive tool for agencies to deny information, despite the fact that this exemption has the highest possibility for discretionary release.

If agencies followed President Obama’s 2009 FOIA memo instructing all agencies “to adopt a presumption in the favor of disclosure,” and Attorney General Holder’s guidance that documents should not be withheld “merely because [an agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” we should be seeing the application of the b(5) exemption a lot less – not more. Sadly, it is clear that the President and Attorney General’s mandates have not motivated intransigent agencies to embrace discretionary releases.

Agencies’ continued misapplication and overuse of the b(5) exemption, despite President Obama’s and Attorney General Holder’s clear directives to the contrary, has prompted a longstanding push by the open government community for a legislative fix to end agencies’ practices of withholding too much information.

Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R).  (Photo by Mark Wilson/Getty Images)

Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R). (Photo by Mark Wilson/Getty Images)

These efforts to rein in the b(5) exemption recently culminated in the Senate when Sens. Leahy (D-VT) and Cornyn (R-TX) introduced legislation to fix the b(5) loophole: the FOIA Improvement Act of 2014, which would stipulate, among other improvements, that historical documents (documents created over 25 years ago) cannot be withheld under b(5), and would require agencies to balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents.

The b(5) pre-decisional exemption was initially conceived to prevent government employees from “working in a fish bowl,” and to allow employees to give each other –and their supervisors– candid advice. These protections should and will remain.

President Obama has correctly stated, however, that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors or failures, or because of speculative or abstract fears. Unfortunately, these are precisely the things the b(5) “withhold it because you want to” exemption is being increasingly used to hide, as evidenced so plainly by the obfuscation of strictly factual information surrounding the deaths of 19 veterans waiting for medical treatment.

As Sens. Leahy and Cornyn have realized, the Freedom of Information Act’s b(5) loophole must be legislatively closed to prevent agencies from abusing this exemption to “hide errors or failures,” and to ensure that the principles of open government are fulfilled.

Lauren Harper is a Research Assistant at the National Security Archive focusing on FOIA advocacy and open government, as well as on U.S.-Iraq relations.

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