What We Can Learn from the Death of a Unanimously-Supported FOIA Bill, and Janus-Faced Support for Open Government
During the 113th Session of Congress, very good Freedom of Information Act bills passed the House with 410 votes and passed the Senate via unanimous concent only to die.
Even more depressing: FOIA bills dying despite receiving unanimous votes is not an abnormality, it’s a trend.
The Senate Judiciary Committee has now passed FOIA reform three times since 2007 without it becoming law. In 2010, the Faster FOIA bill passed the entire Senate by unanimous consent, only to die in the House. In 2011, the Faster FOIA bill again passed out of the Senate by unanimous consent and died an even more ignoble death –Speaker Boehner gutted it and replaced it with the last-minute, secretly-drafted “Budget Control Act of 2011.″
The death of the 2014 bill stings even worse. It was better-crafted than each of the previous three and was drafted over a two year process in conjunction with both the Senate and the House. Unlike previous FOIA bills, Representatives Daryl Issa (R-Ca) and Cummings (D-Md) acted first and passed the Freedom of Information Act Implementation Act in February with 410 votes and none opposing.
The Senate version, the FOIA Improvement Act, largely mirrored the House bill although in one key respect it was much stronger. It made it harder for agencies to apply Exemption Five, an exemption which allows the withholding of “inter-agency or intra-agency memorandums or letters.” While this exemption is often used correctly to preserve candid communications between government employees, its broad wording and ease of applicability has led to extreme (even offensive) overuse, including censoring information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more. President Obama’s adviser John Podesta has even called it the “withhold it because you want to” exemption.
Senators Leahy (D-Vt) and Cornyn (R-Tx) and their staffs worked tirelessly to secure unanimous approval from the Senate Judiciary Committee. Then, the two negotiated successfully to get several (my count is four) Senators to lift their holds on the bill. Most, though not all, of the negotiations were conducted privately. Senators’ concerns over the bill’s cost and potential harm to banks and regulatory agencies were assuaged. The bill passed the Senate via unanimous consent.
Bouyed by the 410 unanimous votes for the bill, and pledges from the offices of the House sponsors that the Senate version (with House input including the concept of an online FOIA portal) would pass, open gov advocates were optimistic for genuine FOIA reform. With hindsight, one newspaper’s headline on FOIA reform comes close to evoking “Dewey Defeats Truman.”
Open government advocates became increasingly worried as a vote for the bill was not placed on the Leadership Calendar on Tuesday and Wednesday. At crunch time, on the morning of Thursday December 11, Speaker John Boener (R-Oh) told a reporter with the Columbus Dispatch, “I have no knowledge of what the plan is for that bill.” However, Senator Leahy’s office has said that it had been in communication with the Speaker’s office on the bill, so he certainly had some knowledge. Representatives Issa and Cummings (who agree on very little) put out a statement calling for the bill to come to a vote, and their staffers were pushing the Speaker’s office for one.
According to the House Majority Leader’s Calendar, Republican leadership was able to find time to allow votes on naming more than a dozen post offices, court houses, and highways, and to vote on several other bills that had no chance of passing in the Senate or becoming law. But they could not squeeze in fifteen minutes (or less) to vote on FOIA reform, which was supported unanimously in both chambers. Alas, at forty minutes past nine o’clock on December 11th, 2014 Speaker Boehner announced, “My job tonight is to say thank you, and Merry Christmas,” gaveled House business to a close, and killed the FOIA bill.
After the bill’s death, folks began debriefing why it died and assessing blame. Yes, I am going to dip into that –just a little bit– but with the goal of making a larger point and suggesting how those who believe in the Freedom of Information Act can strengthen the FOIA in the future. Much has correctly been written about the silence by the mainstream media on the bill. Following Alex Howard’s lead, the New York Times public editor Margaret Sullivan and Kelly O’brien at the Columbia Journalism Review have written scathing and necessary pieces condemning mainstream media’s ignorance of this bill. As Sullivan asked, “If the press won’t represent itself — and the people — by showing some interest in the free flow of government information, who will?”
Most recently, Freedom of the Press Foundation’s Trevor Timm accused Obama’s Justice Department of secretly helping to kill the FOIA bill. Timm’s assertion about the absurdity of the alleged DOJ (and other agency) objections to the FOIA bill is correct. They are objecting to an instruction that the Attorney General has already given, and that agencies should already be following. The DOJ’s alleged threat of a deluge of FOIA lawsuits is also false. Fewer than one percent of all FOIA requests go to court; usually because agencies did not release information they should have, a problem this bill would have addressed. But criticism of of this specific provision (as absurd as it is) points to a larger point: even if this language was removed from the bill, the Department of Justice and other agencies would have simply seized on another red herring to attempt to kill the FOIA bill while claiming they support openness.
Others have criticized the Obama administration’s lack of support of the bill –and of FOIA in general. (For the record, it seems to me that the Democratically-controlled Senate overcame White House radio silence to pass the bill, and vocal White House support probably would have further hindered passage through the Republican-controlled House.) I had hoped that newly-hired John Podesta –who used to host jampacked, terrific FOIA round tables at the Center for American Progress– would have given Obama’s
pro-executive privilege pro-secrecy advisers a kick in the pants and explained to them how big, easy, base-pleasing, and legacy-building a pro-FOIA, pro-transparency tilt during Obama’s last two years would be. Alas, that hasn’t happened.
Of course, after the fact finger pointing is only helpful so long as it helps us to meet our objectives in the future. And, I think some key takeaways will be:
Many people –in Congress, in the agencies, in the White House, in the media– proclaim they believe in open government, but don’t really. To me, that’s the only plausible reason a FOIA bill could garner unanimous approval (thrice in the Senate over the past seven years!) and still die; that’s the only plausible reason agencies whisper that instructions about FOIA currently on the books will ruin the federal government as we know it; that’s the reason for White House silence on the benefits the FOIA Ombuds office not being forced to run its reports though the Department of Justice so they can be “rosified;” that’s the reason the New York Times wins Pulitzers for its FOIA-based reporting, but doesn’t assign a Congressional beat reporter to cover the bill’s death.
How do we overcome these FOIA Januses? First, we must avoid being stalled out. We should force Speaker Boehner to act on his pledge that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.” FOIA champions Senators Leahy, Cornyn, and Grassley remain in the Senate Judiciary Committee; these senators have an impressive history of defending and working to reform FOIA, no matter which party is in the majorly. Replacing Representative Issa on the House Oversight Committee is Jason Chaffetz (R-Ut); Democratic FOIA champion Elijah Cummings remains. Encouragingly, Chaffetz has said he “wants to address the Freedom of Information Act and the difficulties many have in getting the executive branch to comply with FOIA requests.” Both houses should immediately reintroduce the FOIA bill. More than 440 members who voted for FOIA reform remain in Congress.
Second –as absurd as it sounds– open government advocates must find a way to force our representatives to actually pass the bills they vote for. If the 400-plus remaining members who voted for reform to the Freedom of Information Act truly believe in enhancing the public’s access to government information, it should be an easy feat to pass identical, or nearly identical, Freedom of Information Act reform –that is, the bill both houses just unanimously voted yes on– by Sunshine Week, March 2015. If not, we need to force congresspeople to state the reasons why they object to our access to our own information.
State Dept Withholds FRUS Volume on CIA Covert Action in Iran, Boehner Unconcerned with Death of FOIA Reform Bill, and More: FRINFORMSUM 12/18/2014
The Department of State has blocked the publication of the controversial Foreign Relations of the United States (FRUS) history of CIA covert action in Iran in the 1950s over concerns it will negatively effect current negotiations on Iran’s nuclear program. Covert CIA involvement in the 1953 coup to overthrow democratically-elected Iranian Prime Minister Mohammad Mosaddeq has been an open secret for years, and was confirmed by the CIA itself last year, making the decision to continue to withhold the historically significant volume all the more disappointing. The FRUS volume was initially published in 1989 but received intense criticism for its failure to mention the CIA’s involvement in the coup. Congress passed a law in 1991 to help address this glaring omission, requiring a reissue of the Iran volume, as well as those on relations with Guatemala (1954), the Democratic Republic of the Congo (1960–1968) that also ignored the CIA’s role in foreign policy. After nearly 25 years, however, the Iran volume remains the only one still withheld. One question not addressed in the minutes of the Advisory Committee on Historical Diplomatic Documentation is whether the decision to withhold the volume came from the Department of State (and if so which section) or the National Security Council. At any rate, claiming events from more than 60 years ago can be censored to protect current foreign policy considerations sets an extremely damning precedent for those who believe in open government or accurate history.
Last week House Speaker John Boehner (R-OH) refused to allow a vote on the FOIA Improvement Act, effectively killing the widely supported and non-controversial bill that had strong bipartisan support in both chambers of Congress. The Washington Post’s Josh Hicks reported this week that members of the House – which unanimously passed companion legislation this February – “balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the ‘forseeable harm’ requirement as the basis for frequent lawsuits,” though the legislation strengthened the FOIA Ombuds, OGIS, and would have fixed FOIA loopholes that often lead to litigation. Boehner has suggested that the Senate could still take up the similar legislation passed by the House earlier this year instead.
The House did pass the Intelligence Authorization Act last week, which will fund intelligence agencies for FY2015. The bill “puts restrictions on spy agencies’ ability to keep communications collected overseas,” but, according to critics, still “contains numerous loopholes that put Americans’ privacy at risk.” Section 309 of the bill in particular codifies “unprecedented statutory authority to allow for the surveillance of private communications” under Executive Order 12333, a Reagan-era order issued in 1981 to authorize foreign intelligence investigations and allows for the collection of the content of communications in addition to metadata. Rep. Zoe Lofgren (D-CA) notes that while the version of the bill the House passed this summer would have required the National Security Agency to obtain warrants before reading American communications collected under EO12333, the language passed last week was “the exact opposite.”
Sweden is petitioning the U.N. to reopen its investigation into the September 1961 death of U.N. Secretary General Dag Hammarskjold, whose plane was shot down over what is now Zambia. Last year a U.N. inquiry concluded its investigation, ambiguously finding “persuasive evidence that the aircraft was subjected to some form of attack or threat as it circled to land.” In its recent appeal, Sweden is specifically asking all U.N. member states to disclose unpublished documents on Hammarskjold’s death, “a reference aimed largely at securing the declassification of American and British files, particularly intercepts thought to have been made at the time by the National Security Agency.” The NSA continues to withhold two of three 50-year-old documents requested by the Archive regarding the incident on national security grounds.
Steven Aftergood recently reported on the Public Interest Declassification Board’s (PIDB) review, Setting Priorities: An Essential Step in Transforming Declassification, which addresses the “awkward fact” that millions of pages of documents declassified by the National Declassification Center are “unlikely to generate or to justify much public attention.” PIDB makes the argument “agencies should do more to selectively prioritize topics of high public interest for declassification review rather than trying to declassify most records as they become 25 years old.” The proposal that agencies move away from automatic declassification towards “topic-based prioritization” raises several concerns, like the elimination of a “forcing function” compelling agencies to declassify, and what criteria will be used for dictating what topics are priorities.
Ten technology companies have submitted friend-of-the-court briefs in support of Microsoft’s appeal argument “that the U.S. government cannot issue a search warrant to obtain customers’ e-mails held in another country.” In August a federal judge upheld a lower court ruling that Microsoft must turn over customer data stored overseas in response to a U.S. search warrant. At the time Microsoft was joined by Verizon, AT&T, Apple, and Cisco Systems, in arguing that the U.S. government has “no right” to customer data stored outside the U.S., and that forcing Microsoft to comply with such an order “threatens to rewrite the Constitution’s protections against illegal search and seizure, damage U.S. foreign relations and ‘reduce the privacy protection of everyone on the planet.’” In its appeal Microsoft also argues the U.S. “has well-established treaties with other governments that allows it to seek information without resorting to extra-territorial claims.”
Nicholas Merrill, owner of the now-defunct Internet provider Calyx Internet Access, is suing the Justice Department to lift a gag order that accompanied a 2004 National Security Letter (NSL) – a letter that demands business records from a wide array of organizations for national security investigations –, which remains in effect even though the underlying investigation has been completed. Merrill, the first NSL recipient to challenge the letters’ gag order in court, argues the seemingly permanent gag order violates his First Amendment rights, and “wants the court to declare both the NSL statute and its non-disclosure provision unconstitutional under the First Amendment.” Merrill has additionally signed a friend-of-the-court brief in the Electronic Frontier Foundation’s case, currently pending in the U.S. Court of Appeals for the 9th Circuit, which is also considering whether or not the gag orders that prevent recipients of the letters from discussing them constitute a violation of the First Amendment.
The Justice Department announced it will not compel New York Times reporter James Risen to testify in a high-profile leaks case. Risen received information from accused CIA leaker Jeffrey Sterling regarding Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, which was the subject of a chapter in Risen’s 2006 book, State of War. Mr. Risen submitted an affidavit in June in which he claimed that “any testimony I were to provide to the Government would compromise to a significant degree my ability to continue reporting as well as the ability of other journalists to do so.”
Archivist William Burr recently delved deeper into a newly-declassified 21 June 1963 entry from the journals of Glenn Seaborg, chairman of the Atomic Energy Commission from 1961 to 1971, that discussed the possibility of an “accidental drop” on Chinese nuclear facilities. According to Burr, “Reflecting ongoing discussions of the possibility of working with Moscow against the Chinese nuclear program, William C. Foster, the director of the Arms Control and Disarmament Agency, confidently observed that ‘if we could get together with the USSR, the Chinese could be handled even if it required an accidental drop on their facilities.’” The passage was excised when the diary was published in the Foreign Relations of the United States, but later revealed thanks to a FOIA request.
This week Cuba released USAID subcontractor Alan Gross after serving five years of a fifteen-year prison sentence. In honor of Gross’ release, this week’s #tbt document picks are records filed by Development Alternatives Inc (DAI), one of USAID’s largest contractors and Gross’ employer, in response to a lawsuit filed by Alan Gross’ family that were initially posted by the Archive in January 2013. The documents attached to DAI’s court filings include USAID’s original “Request for Proposals” for stepped up efforts to bring about political transition to Cuba, USAID communications with DAI, and Gross’ own proposals for bringing computers, cell phones, routers and BGAN systems into Cuba.
Recently the National Security Archive published an Electronic Briefing Book of documents on the United States and the Chinese nuclear weapons program during the early 1960s. One of the themes of the compilation was the Kennedy and Johnson Administration’s consideration of preventive military action to prevent or to delay China from acquiring a nuclear capability. A pertinent document that I overlooked when preparing that compilation is worth presenting. It is an entry for 21 June 1963 from the journals of Glenn Seaborg, who was chairman of the Atomic Energy Commission from 1961 to 1971. Seaborg’s journal recounts a White House meeting on the nuclear test ban negotiations with the Soviet Union and forthcoming talks in Moscow. According to Seaborg’s account the discussion turned to China–which had refused to support a test ban treaty–when Kennedy asked how the United States might handle that subject in the Moscow talks. Reflecting ongoing discussions of the possibility of working with Moscow against the Chinese nuclear program, William C. Foster, the director of the Arms Control and Disarmament Agency, confidently observed that “if we could get together with the USSR, the Chinese could be handled even if it required an accidental drop on their facilities.”
The reference to an “accidental drop on their facilities” was excised when the diary entry was published in the Foreign Relations of the United States but it was declassified through a request to the Department of Energy for a new review of the document. An “accidental drop,” –presumably a bombing– is an unusual form of arms control and just how the United States or even the Soviet Union could have staged such an event in the interior of China, where Chinese nuclear facilities were located, is an interesting problem. The Kennedy Presidential Library Web site does not indicate whether a sound recording for this meeting exists, so if there was any discussion of the concept of “accidental drop” it is not available. In any event, Foster’s statement is one more bit of evidence that senior officials were interested in the possibility of taking action against the Chinese nuclear program, even to the point of arranging an “accidental” bombing with Moscow. As it turned out, when Kennedy’s representative, W. Averell Harriman, brought up the Chinese nuclear program during a conversation in Moscow with Soviet Premier Nikita Khrushchev, the latter would not even allow that he was worried about it.1
1. Telegram from the U.S. Embassy Moscow to Department of State, 27 July 1963, http://history.state.gov/historicaldocuments/frus1961-63v07/d354]↩
Toby McIntosh and others have reported that the key reason the FOIA Improvement Act has not been scheduled to the House calendar is opposition by lobbyists for the Financial Services Industry; the broader Issa-Cummings version of this House Bill passed 410 to 0 in February; the bill recently passed the Senate unanimously.
It’s no wonder the bill has unanimous Congressional support. It has important fee fixes, strengthens the FOIA Ombuds Office of Government Information Services, and, most importantly, reforms the increasingly abused and misapplied Exemption Five, all of which will benefit ordinary requesters.
What the bill does not do, however, is alter Exemption 8, which protects matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.”
First, get over the absurdity of Speaker Boehner bowing to secret complaints of an industry that forced the US economy to its knees due to lack of oversight.
Second, tell House leadership that the current FOIA bill does not change the status quo of information currently protected by Exemption 8 regarding financial information. The Senate bill overcame a series of holds by members of the Senate Banking Committee by explaining in strong Senate reporting language that the current standard remains: “Extreme care should be taken with respect to disclosure under Exemption 8 which protects matters that are ‘contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.'”
Furthermore, the Senate report states: “Nothing in this legislation shall be interpreted to compromise the stability of any financial institution or the financial system, disrupt the operation of financial markets or undermine consumer protection efforts due to the release of confidential information about individuals or information that a financial institution may have, or encourage the release of confidential information about individuals. This legislation is not intended to lessen the protection under Exemption 8 created by Congress and traditionally afforded by the courts.”
The presumption of harm standard (which agencies are already required to follow due to Attorney General Holder’s FOIA memo) does not apply to non-discretionary exemptions, such as exemption 8, or to statutory FOIA exemptions such as those included in Dodd-Frank Wall Street Reform and Consumer Protection Act or other FOIA legislation.
So why is the banking industry opposing this bill? I really don’t know. To flex their muscle? To set precedent for opposing future oversight legislation?
What I do know is it would be a travesty if Speaker Boehner kills this bill and allows them to win after FOIA reform has alreay passed both the House and Senate unanimously.
FOIA Reform Bill Under Attack By Bank Lobby, Must be Put on Agenda TODAY, and Much More: FRINFORMSUM 12/11/2014
Despite the Senate’s unanimous bipartisan support and the House’s unanimous passage of complimentary legislation earlier this year, the FOIA Improvement Act has yet to be added to the House’s legislative calendar. If it is not added by this afternoon, this important open government legislation will die. Reports indicate that, in a ploy that would be antithetical to open government principles and the “People’s House” responsibility to the American public if true, banking lobbyists are putting pressure on House leadership to scrap a vote on the bill over “bogus” concerns over FOIA’s Exemption 8 (concerns which the Senate Judiciary’s report on the bill already proves are unfounded).
As New York Times public editor Margaret Sullivan has pointed out, the FOIA bill has received shockingly little attention from the mainstream media, including from the Times itself. The inattention is especially confusing considering how prominent a role FOIA has played in some of this year’s biggest stories. This month alone FOIA requests helped journalists prove energy firms were colluding with Republican Attorney Generals to roll back the White House’s regulatory agenda, and provided, in the ongoing debate about the militarization of local police forces, a detailed breakdown of what excess military equipment the DOD gives police under its 1033 Program. FOIA is also a lynchpin in several of the Times’ ongoing high-profile lawsuits, including its attempt to wrestle important torture-related documents from the Department of Justice.
Given the importance of this bill and its lack of necessary coverage, please take a minute to contact Speaker of the House John Boehner (R-OH) and Majority Whip Kevin McCarthy (R-CA) and remind them they are beholden to the public, not narrow-minded private interests, and to put the FOIA Improvement Act on this year’s legislative calendar today.
In other open government news, thanks in large part to the efforts of Rep. Elijah Cummings (D-MD), the Presidential Records Act – which was nearly eviscerated in 2001 by President Bush – recently got some new teeth. The amendments establish a process for the publication of presidential records after the president leaves office, making it harder for former executives to block publication of their records for any more than 90 days by citing executive privilege; forbid executive branch officials from conducting government business over personal email, thereby evading the FOIA; and modernize records management by expanding and clarifying the definition of electronic records.
The Senate Intelligence Committee released the executive summary of its report on the CIA’s torture program this week. The official release confirmed much of what those covering the CIA’s battle to quell its declassification already knew, namely that a small cadre of CIA higher-ups systematically misled the White House, Congress, the DOJ, and the Agency itself to begin and continue a program “it was completely unprepared for” and one that failed to produce any actionable intelligence. The program, characterized by “dysfunction, disorganization, incompetence, greed and deception,” represents “the third major airing of faulty CIA intelligence in 15 years.”
The National Security Archive’s contribution to reporting on the executive summary’s release notes the summary is important for its nearly 3,000 footnotes to specific CIA documents. The footnotes show a pattern of repeated factual inaccuracies by the CIA leadership in its communications with the Justice Department (to get legal cover for the program), with the White House (including inserting false information in the President’s Daily Brief and into one of President Bush’s major speeches), with the Congress (Appendix 3 starting on page 462 provides more than 30 pages of false statements in testimony by former CIA director Michael Hayden), and even in internal Agency deliberations.
The long-term consequences of the declassification of the report’s summary remain to be seen. Despite Archive Director Tom Blanton’s comments in a recent Washington Post article reiterating that “secrecy enables bad policy choices,” the report itself recommends no further investigations or punitive measures, and statements by President Obama imply that criminal prosecutions for those responsible for the program remain unlikely. Meaning that instead of being punished, the former head of the CIA’s National Clandestine Service that oversaw the agency’s torture program and authorized the destruction of 92 video recordings of Abu Zubaydah being waterboarded 183 times in a black prison site back in 2005, Jose Rodriquez, will likely be free to pontificate further on how the Agency is being “thrown under the bus” and fault the report’s conclusions.
Nevertheless, Blanton praised the release of the Torture Report on the Kojo Nnamdi Show for its extensive footnotes that showed “how the CIA fooled itself,” and further on the Colbert Report for the report’s extensive reliance on, and documentation of, the agency’s own records – six million pages of records, to be precise – many of them emails that the Agency is currently petitioning to have the authority to routinely destroy.
The open government community is still, incidentally, requesting that the National Archives (NARA) delay approving the CIA’s plan to destroy its email records at a minimum until the CIA finally answers NARA’s questions about Rodriguez’s illegal destruction of the waterboarding tapes, which the CIA inexplicably maintains was not a violation of the Federal Records Act. Senator Cornyn (R-TX) and Leahy (D-VT) also wrote NARA urging them to reject the CIA’s proposal to destroy its email records, noting, “We  know that CIA personnel have in some instances deliberately destroyed records or other materials, suggesting that the National Archives must be particularly cautious in approving any policy permitting permanent destruction of CIA records.”
In other news this week, Uruguay accepted six Guantanamo detainees, including a detainee on hunger-strike who filed a lawsuit against the camp’s invasive force-feeding procedures. Uruguayan President José Mujica announced in May that his country would accept the detainees –those “cleared for release but can’t return to their nations, either because of war, fear of torture or security concerns about their home countries.”
Adam Marshall from the Reporters Committee for Freedom of the Press had an excellent piece this week on federal agencies’ growing reliance on sending “are you still interested in your FOIA request?” letters as “a sneaky way to make the agency’s [backlog] numbers look better.” The Archive has been dismayed to see the rise in this tactic, wherein an agency will write a requester – for possibly the first time in years – concerning a FOIA request, informing the requester that if the agency doesn’t hear back from them in an arbitrary amount of time – say 30 days – the agency will summarily close the request. The Archive always encourages dialogue and the narrowing of FOIA requests when possible, but there is nothing in the FOIA that allows an agency to summarily close requests in this manner. We’ve contacted the FOIA Ombuds OGIS about this practice, and they’ve stated they will look into the matter.
Congress has ordered the Pentagon to submit quarterly reports on leaks and additional reporting on “insider threats” as part of the pending National Defense Authorization Act for FY 2015. The Act does not, however, address problems of overclassification, failure to timely declassify information, or nonsensical security procedures, like banning intelligence officers from discussing and contextualizing leaked information that can be found on Google.
This week’s #tbt document pick is chosen with the release of the executive summary of the CIA torture report in mind – it is the Zelikow Memo, a 2006 Department of State cable from then- counselor to Secretary of State Condoleezza Rice, Philip Zelikow, opposing the Justice Department’s Office of Legal Counsel’s authorization for the CIA’s “enhanced interrogation techniques.” The White House tried to locate and destroy all copies of the Zelikow Memo, but in 2012, thanks to a FOIA request, DOS found one and delivered it to the Archive.
Happy FOIA-ing! (and don’t forget to tweet/call Reps. Boehner and McCarthy!)
National Security Archive hails efforts by investigators, victim’s families to uncover truth
Obama Administration to Declassify Hundreds of Secret U.S. Records For Report Follow-up
Report released on International Human Rights Day; names hundreds of perpetrators
December 10, 2014, Washington D.C.: Almost thirty years after the end of Brazil’s military dictatorship, the Comissao Nacional da Verdade [National Truth Commission] today released its long awaited report on human rights violations by the security forces between 1964 and 1985. The report, which took two-and-a-half years to complete and totals over 1000 pages, represents the first formal attempt by Brazil as a nation to record its repressive past and provide a detailed accounting of the system of repression, the victims of human rights violations, as well as the identities of those who committed those crimes.
In contrast to the U.S. Senate report on torture released yesterday in Washington which redacted even the pseudonyms of CIA personnel who engaged in torture, the Brazilian report identified over 375 perpetrators of atrocities by name.
The report contains detailed chapters on the structure and methods of the repression during the military era, including targeted violence against women and children. The commission identified over 400 individuals killed by the military, many of them “disappeared” as the military sought to hide its abuses. During its investigation, the Commission located and identified the remains of 33 of the disappeared; some 200 other victims remain missing.
The report also sheds significant light on Brazil’s role in the cross-border regional repression known as Operation Condor. In a chapter titled “International Connections: From Repressive Alliances in the Southern Cone to Operation Condor,” the Commission report details Brazil’s military ties to the coup in Chile, and support for the Pinochet regime, as well as identifies Argentine citizens captured and killed in Brazil as part of a Condor collaboration between the Southern Cone military regimes.
This report opens a Pandora’s box of historical and legal accountability for Brazilians. For now it provides a verdict of history, but eventually the evidence compiled by the commission’s investigation could lead to a judicial accounting. “The Truth Commission’s final report is a major step for human rights in Brazil,” according to Brown University scholar, James Green, “and the pursuit of justice for the victims of the state’s terror.”
In its recommendations, the Commission took the bold step of calling for a repeal of Brazil’s 1979 amnesty law which has, to date, shielded military officers from human rights prosecutions.
Those prosecutions could be aided by evidence from declassified U.S. documentation. In support of the Commission’s work, the Obama administration agreed to a special declassification project on Brazil, identifying, centralizing and reviewing hundreds of still secret CIA, Defense and State Department records from the 1960s, 1970s and 1980s. Last June, Vice President Biden personally delivered 42 documents into President Dilma Rousseff’s hands; more recently the U.S. Embassy passed another tranche of over 100 records, many of them from the CIA, to the Brazilian government. As part of a commitment Biden made to open U.S. archives, the administration is continuing to review hundreds of additional records to declassify and provide to the Brazilian government next year.
The Commissioners presented their report to President Rousseff on International Human Rights Day. Rousseff, herself a victim of torture by electric shock during the military dictatorship, was “moved to tears” as she received the report and received a standing ovation from the crowd that had gathered for the ceremony, according to the Washington Post. In her speech accepting the report, the President stated that “We hope this report prevents ghosts from a painful and sorrowful past from seeking refuge in the shadows of silence and omission.”
Read the three-volume Report
Read Key Documents Provided by the United States
Document l: Department of State, “Widespread Arrests and Psychophysical Interrogation of Suspected Subversives,” Confidential, April 18, 1973
This intelligence cable, sent by the U.S. Consul General in Rio de Janeiro, provides detailed reporting on a “sophisticated and elaborate psychophysical” method of torture being employed by the Brazilian military against suspected militants. In response to growing international condemnation of human rights violations, the cable suggests, the Brazilian torturers have adopted more modern interrogation methods that leave less visible evidence of abuses. In cases where detainees are “eliminated,” the military is also deceiving the press by claiming they were killed in a “shoot-out” while trying to escape.
The cable was declassified on June 5, 2014, only eleven days before Biden’s trip to Brazil in order for him to provide it to President Rousseff as a diplomatic gesture. But key sections of the document are redacted, presumably at the request of the CIA, that identify the military units responsible for these atrocities — information that would be of critical use to the Brazilian Truth Commission as it attempts to hold the military accountable for the atrocities of the past.
Document 2: Department of State, “Political Arrests and Torture in São Paulo,” Confidential, May 8, 1973
The Consul General in Sao Paulo, Frederic Chapin, reports on a source described as “a professional informer and interrogator working for the military intelligence center in Osasco,” an industrial suburb of Sao Paulo. The source has provided graphic details on methods of abuse, including a Brazilian form of “waterboarding” that involved putting prisoners in vats of water that forced them to stand on their tiptoes for prolonged periods of time to be able to breath. The informant also provides a description of methods of executing prisoners so that their bodies could not be identified. Prisoners would be machine gunned from head to toe — a method referred to as “sewing” the suspect up.
This document was declassified in 2005, and initially provided to the Truth Commission by National Security Archive Brazil project director Peter Kornbluh. It played a key role in enabling researchers to identify the April 18, 1973, cable on psychophysical abuses, which is cited as a reference telegram. A memorandum of conversation with the informant/torturer, however, is also cited in this document and would be of exceptional value to the Truth Commission in obtaining additional information about the torture center in Osasco.
Document 3: Department of State, “Allegation of Torture in Brazil,” Secret, July 1, 1972
U.S. Ambassador William Rountree advises the State Department that openly protesting human rights “excesses” by the Brazilian military government will be counterproductive and “damage our general relations.” Ambassador Rountree encourages the State Department to oppose a piece of human rights legislation known as the “Tunney Amendment” which would link U.S. aid to Brazil to a U.S. government certification that the Brazilian regime was not engaged in human rights violations.
Document 4: Department of State, “The Esquadrão da Morte (Death Squad),” Limited Official Use, June 8, 1971
Ambassador Rountree submits an 11-page report on death squad activity in Brazil. He advises that there has been an “upsurge” of victims of unofficial operations in recent months, believed to be the work of off-duty policemen. In Sao Paulo, the death squads are reportedly led by Sergio Fleury, who has now been charged in at least one murder. Some of the victims are common prisoners, others political figures and militant opponents of the regime. Much of the information in the report is gleaned from newspaper articles; the report appears to contain almost no intelligence information.
Document 5: Department of State, “Conditions in DEOPS Prison as told by Detained American Citizen,” Confidential, October 7, 1970
This memorandum of conversation contains a report by a U.S. businessman, Robert Horth, who was detained by the military police in an apparent case of mistaken identity. Horth relates hearing from fellow Brazilian prisoners about torture at the prison where he is held in downtown Sao Paulo. The torture techniques include the Parrot Perch — known in Portuguese as “pau de arara” — and electrical shock to all parts of the body, as well as the “telephone technique” where an interrogator stands behind the seated prisoner and smacks both sides of his/her head repeatedly, almost destroying their eardrums.
Imperative for House to Add Widely-Supported FOIA Reform Bill to Calendar, Pass By Thursday, December 11
If the House does not pass the FOIA Improvement Act (S2520) by the end of the day tomorrow, December 11, the widely-supported and non-controversial reform legislation will die. Despite the importance of this FOIA reform legislation, which the Senate already unanimously passed and has the bipartisan support of both Reps. Darrell Issa (R-CA) and Elijah Cummings (D-MD), who unanimously passed their own companion Issa-Cummings reform legislation earlier this year in a 410-0 vote, the FOIA bill has yet to be added to the House’s legislative calendar.
The time is now to remind Speaker of the House John Boehner (R-OH) and Majority Whip Kevin McCarthy (R-CA) why the FOIA Improvement Act needs a spot on this year’s legislative calendar.
Let the leaders of the House know the following:
- This is a bipartisan bill, strongly supported both by Reps. Darrell Issa (R-CA) and Elijah Cummings (D-MD), and the House companion to the bill, HR 1211, passed unanimously (410-0) this February.
- By passing S2520, the House will help make sure federal agencies are accountable to the public.
- S2520 strengths citizens’ best FOIA advocate and moderator, the Office of Government Information Services, which effectively serves as the FOIA Ombudsman. The bill will ensure that agencies inform FOIA requesters that they have the right to request FOIA dispute resolution service in lieu of expensive litigation.
- S2520 nearly died in the Senate because intense lobbying by the Federal Trade Commission (whose “What’s New with FOIA?” page most recently cites a 2005 executive order signed by President George W. Bush!) and other independent agencies convinced Senator Jay Rockefeller (D-WV) to place an 11thhour hold. Rockefeller released his hold after intense pressure from the open government community and his 99 fellow senators.
- Moving a similar bill out of the Senate will be more difficult next year when Senator Leahy’s positioning to fight off holds such as Sen. Rockefellers’ is not as strong.
- If the House passes this bill, it will mean that this legislative session – which already saw the passage of the DATA Act and the Presidential and Federal Records Act Amendments of 2014 – will be one of the most pro-transparent in history.
Speaker Boehner can best be reached the following ways:
Phone: (202) 225-0600
And Majority Whip Kevin McCarthy can be contacted here:
Phone: (202) 225-2915