The Public Interest Declassification Board should Establish Credibility by Re-Reviewing the Kennedy Assassination Records, then Prioritize Declassification by “Following the Footnotes.”
The Public Interest Declassification Board (PIDB), an advisory committee established by Congress in 2000 “to promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities,” is asking the public for advice on what to declassify.
My advice to the Board is that its first step should be to establish its credibility and the credibility of the National Declassification Center (NDC) by reviewing the more than 1,171 distinct documents related to the John F. Kennedy assassination held by the National Archives whose release to the public was postponed until 2017 by the Assassination Records Review Board (ARRB), “unless certified as justifiably closed by the President of the United States.”
Recent blog posts by the PIDB asked for suggestions for which documents 25 years and younger and 25 years and older should be declassified. While these lists include such interesting and worthy topics as “the Cuban Missile Crisis,” ”Vietnam P.O.W. and M.I.A.s,” “9/11 and Terrorism,” “Iraq 2001-2004,” and “Guantanamo/Detainee Issues” (but not Archer 83 :/ !), they make no mention of the Kennedy assassination documents which remain unavailable to the public. This omission is bizarre, considering these Kennedy assassination documents are likely the most frequently and prominently requested classified documents in NARA’s possession. At each of the Public Interest Declassification Board meetings I have attended, there have been continued and prominent calls and suggestions from researchers that the PIDB and NDC review these records. This includes a meeting in 2010 when Assistant Archivist Michael Kurtz “misspoke” and stated the records would be reviewed by the National Declassification Center by 2013. The PIDB knew of the intense public interest in these assassination documents –as of today, twelve of the thirteen comments on the PIDB’s call for prioritization categories are for the Kennedy assassination docs– but, has of now, omitted them from their Prioritization List.
The National Archives and Records Administration (NARA) (which includes both the PIDB and NDC) has made some compelling arguments as to why it does not view a declassification review of these JFK assassination documents as a priority. On its website, NARA states that “it is a common misconception that the records relating to the assassination of President Kennedy are in some way sealed. In fact, the records are largely open and available to the research community here at the National Archives at College Park in the President John F. Kennedy Assassination Record Collection.” In a 2012 letter, NARA’s General Counsel explained that “less than one percent of the documents in the collection are ‘postponed in full’ until 2017 [he makes no mention of records 'postponed in part']” and that “because the postponed JFK assassination records have already been subject to a full and complete government-wide declassification review,” it would not be an efficient use of resources for the NDC to re-review them.
Second, and I think most importunately, successful review and release of these (mostly) CIA documents in NARA’s possession will establish that the US National Archives really is the people’s archive, rather than, in the words of one PIDB commenter, “The CIA Archives.” The reassurance is strongly needed upon the recent news that National Declassification Center is declassifying only 61 percent of the historic documents it reviews. (The NDC should be lauded for –contrary to earlier reports– coming close to meeting President Obama’s December 2009 instruction that it “permit public access to all declassified records from the [357 million page] backlog no later than December 31, 2013,” but this low release rate is extremely troubling. The National Security Archive expected a 90 percent release rate for these documents (some much) older than 25 years; indeed, Mandatory Declassification Review requests –including for current documents– are released in whole or in part 81.7 percent of the time!!)
Tangentially, while I was reviewing the Final Report of the Assassination Records Review Board as I was writing this article, I was struck by how accurate and well written its criticisms of the classification system were. Sadly the no action was taken to enact any of the recommendations, and system remains as broken as it was in 1998. I hope the same fate does not meet the Public Interest Declassification Boards’s recommendations. The National Declassification Center would be wise to follow the Assassination Records Review Board’s recommendation that “the cumbersome, time-consuming, and expensive problem of referrals for ‘third party equities’ (classified information of one agency appearing in a document of another) be streamlined by (A) requiring representatives of all agencies with interests in selected groups of records to meet for joint declassification sessions, or (B) devising uniform substitute language to deal with certain categories of recurring sensitive equities… [if an "agency did not process and return the [referred] record by a specified deadline, the Review Board would automatically vote to release the record.” The National Declassification Center had an opportunity to reform the flawed referral process; President Obama instructed the National Declassification Center that “further referrals of these records are not required except for those containing information that would clearly and demonstrably reveal [confidential human sources or key WMD design concepts];” but the NDC chose not to go this route and employed multiple equity review. The extremely high (39 percent) denial rate is the result of the NDC’s refusal to embrace this privilege.
Finally, and not trivially, a fresh review and release of these JFK assassination documents will bring the Public Interest Declassification Board much positive publicity and support. This momentum would ensure that the President’s Classification Reform Steering Committee does indeed have enough positive public support (including from the the JFK researchers, other historians, archivists, librarians, and –let’s not forget the Oliver Stone effect– media) to counter the anti-classification reform inertia of the federal government.
After the Board establishes its credibility as a declassifier of the public (not intelligence agency) interest –and allays the persistent and formidable calls for declassification review of the Kennedy assassination records– I suggest the PIDB and NDC take a “Follow the Footnotes” approach –rather than a topical approach– to prioritizing further declassification.
Before I give some examples of “Follow the Footnotes” declassification, I’d like to weigh in on the healthy and lively debate of the merits of prioritization verses non prioritization of documents by supporting prioritization. The very fact that these documents have made it to NARA, rather than the shredder, means that they already have been prioritized. It is estimated that less than one percent of all documents created by the federal government are identified as having “permanent value” and preserved. Eventually the hope is all classified documents identified by agencies as having permanent value will be declassified. But because the declassification process is such a slow, frustrating slog, it is much better to use resources to first declassify the documents that most researchers, historians, writers, and readers are interested in. Of course the other, non-prioritzed documents are subject to Freedom of Information Act and Mandatory Declassification Review requests, should a researcher wish to independently prioritize them. Archivists, I think, are loath to label certain documents as special. I’m a historian, so I’m not. Special documents, I believe, are the ones that are at the most enlightening, will be the most cited, and will impact the understanding of the most people.
I believe a “Follow the Footnotes” prioritization method may be the best way to get these “special documents declassified.” Really this method is quite simple: Prioritize declassifying, classified internal agency histories, reports, SF -135 record transfer forms, record retention schedules, and other documents –already created– that act, to an extent, as a map of the records they are created from.
This means that the PIDB and NDC should focus their priority on declassifying documents such as:
- Joint Chiefs of Staff Histories, Command Histories, Unit Histories, Wing Histories, Fleet Histories, etc. Most of these are produced annually (by fiscal year) and their quality does vary. Still the ones that I have seen offer comprehensive chronologies, that are often densely footnoted. Sometimes the documents they footnote are included as an appendix. As with all of the documents I am about to list, many of these (older than 25 years) histories have not been accessioned to the National Archives or Washington Records Center. If this is the case the PIDB should compel them to be transferred.
- Other documents from the Agency Historian Offices. I have heard murmurs that the Joint History Office, and the Historical Office of the Office of the Secretary of Defense are a mess, with histories unindexed and haphazardly stored on hard drives–perhaps so the public could not easily FOIA them. The Navy’s Inspector General determined portions of its history program were “at risk.” If this is the case, the PIDB and NARA should intervene, catalog the histories and declassify the ones 25 years or older. In addition to the documents listed above these offices contain histories such as POINTER papers which record and diagram tactical maneuvers. Their declassification would also serve as a road map for further research.
- Other classified internal histories including those in the Classified editions of the CIA’s Studies in Intelligence and Clandestine Service Histories Project.
- The National Archive should following the lead of the Department of Defense and post all created SF-135 forms online. These forms include titles and descriptions documents as they are transferred from agencies to NARA, and are an invaluable resource to researchers requesting declassification review. Currently researchers must travel to the Washington Records Center in Suitland, MD to view the majority of these forms.
- Other Records schedule and ascension documents which will help researchers target documents by title or description
- Inspectors General reports which are often thoroughly footnoted.
- Indexes of reports produced by agencies, such as the CIA’s Monthly Index of Photographic Exploitation Products.
- Hundred of of other types of documents which I am missing (list ‘em in the comments!) that can serve as “Poor Person’s Finding Aids” in this era of austerity.
- Beyond these “Footnoted dox” I generally recommend prioritization based upon the seniority of the documents’ creators and receivers. That is: all documents accessioned by secretaries and generals first, then documents accessioned by assistant secretary and colonels, and so on.
I suspect that the PIDB may have preferred that I submit the above list without mention of the delayed JFK Assassination documents. But the silence was deafening. If those are the most requested documents –which I believe they are– then resources should be used to review them; the benefits will be worth the endeavor. After establishing credibility, I recommend “Following the Footnotes” to multiply the impact of the PIDB’s and NDC’s declassifications.
 The National Archives otherwise stunning 2012 exhibit on the Cuban Missile Crisis failed to mention that the Soviet Union possessed armed Luna Tactical Nuclear weapons on the island that would have likely been launched at Guantanamo bay had the US invaded. Was this crucial historic omission because the existence of the Luna’s was not officially declassified?
 John R. Tunheim, who chaired the Assassination Records Review Board, disagrees that it would be inefficient for the NDC to review them. In November 2013, he told the Boston Globe that the CIA obfuscation about documents related to one of its officers, George Joannides, who monitored Oswald when he was living in New Orleans and was also tied to Cuban exile groups as well as groups sympathetic to Fidel Castro, “really was an example of treachery…If the CIA fooled us on that, they may have fooled us on other things.” He called on the CIA to release all material it has on Joannides.
Air Force officer Edward G. Lansdale was famous for his influential theories of counterinsurgent warfare, namely that Communist revolution was best confronted by democratic revolution. His theories proved successful in the Philippines after World War II, but were much less so later in South Vietnam. From 1957 through 1963 Lansdale worked for the Department of Defense in Washington, serving as Deputy Assistant Secretary for Special Operations, Staff Member of the President’s Committee on Military Assistance, and Assistant Secretary of Defense for Special Operations. During the early 1960s he was primarily involved in clandestine efforts to topple the Cuban government, mostly through Operation Mongoose, including concocting plans to assassinate Fidel Castro.
Nearly 25 years ago the Archive submitted FOIA requests for all material from Lansdale’s papers that were obtained in 1983 and 1984 from the Hoover Institution of War’s Archive. Today, thanks to a series of FOIA appeals, MDR requests, and the hard work of the declassifiers at the Department of Defense’s Washington Headquarters Service, the Archive is posting the Lansdale Releases, a great addition to the Archive’s on-site Lansdale Collection. Please check out the over 300 pages of newly declassified documents, which includes the Confidential February 24, 1960, memorandum by Col. Lansdale, “Subject: Presidential Candidates, Philippines,” on how the US could best wield influence through the 1961 elections (page 80), the Secret February 26, 1966, memorandum by Lansdale’s one-time subordinate Daniel Ellsberg, “Subject: Colonel Chau and CIA,” on the Vietnamese colonel’s concerns over rural construction programs (page 46), a Confidential October 29, 1956, memorandum for the Customs commissioner on the smuggling of pornographic films, referred to as “fighting Fish films,” into Saigon (page 115), and much, much more.
This posting is part of an ongoing crowdsourcing initiative where the Archive provides documents newly-released through the Freedom of Information Act to the public, and gives you the first crack at the documents so you can tell us what is significant about them. Please read these Lansdale documents, and find and flag those that are important or interesting and tag it #Lansdale2013!
FRINFORMSUM 12/5/2013: NSA’s Holiday Talking Points, it’s Best not to Legislate When Angry, and the National Archives asks for Declassification Recommendations
To help its employees handle discussions with friends and family about the agency’s activities over the holidays, the National Security Agency (NSA) distributed talking points to its staff in late November. Among the points in the two-page document, which the Archive has already submitted a FOIA request for, are reassurances that “[t]he NSA’s mission is of great value to the nation”; it performs its missions “exceptionally well”; and its employees are “loyal Americans with expert skills”.
With the Senate only scheduled for a few more days of work before the end of the year, and Senate Majority Leader Harry Reid (D – NV) promising to spend most of that time on Iran sanctions legislation, it’s likely that the debates over the NSA and domestic surveillance practices will lose momentum. Given the time constraints, the National Defense Authorization Act (NDAA) is the last chance lawmakers will have of making changes to domestic surveillance this year. However, with the NDAA’s over 500 amendments, key proposals about Senate confirmation of the NSA director and enhanced NSA transparency “are likely to fall by the wayside.” According to some, like former chief aide to the House Intelligence Committee Michael Allen, this is fine because “[i]t’s often not a good idea to legislate when you’re angry… [t]he [congressional] leadership may want this issue to cool down a bit.”
House Intelligence Committee Chair, Rep. Mike Rogers (R-MI), believes that the criticism the intelligence community is under is misplaced. Both Rogers and his Senate counterpart, Dianne Feinstein (D-CA), announced that the threat of terrorism against the United States is rising and that Americans are not as safe as they were two years ago. Neither Sen. Feinstein or Rep. Rogers provided specifics for these assertions, however Rogers did stress that “[w]e’re fighting amongst ourselves here in this country about the role of our intelligence community that it is having an impact on our ability to stop what is a growing number of threats. And so we’ve got to shake ourselves out of this pretty soon and understand that our intelligence services are not the bad guys.”
The latest Inspector General report released by the intelligence community doesn’t shed much light on how much praise or criticism the intelligence community deserves. According to Secrecy News’ Steven Aftergood, the highly redacted IG report reveals that “during the nine-month period from July 2012 to March 2013, the IC IG internal hotline received 70 contacts or complaints from intelligence agency personnel, as well as 77 contacts from the general public. Investigators conducted 75 investigations revealing some occasionally creative forms of misconduct.”
The European Human Rights Court held a rare public hearing Tuesday regarding Poland’s role in the CIA’s extraordinary rendition program, during which lawyers for two men held by the CIA in a secret “black” site operating in Poland argued that Poland should be held responsible for their torture. The Guardian reports that the “two-day hearing at Strasbourg was the first time a European country has been taken to court for allowing US agencies to carry out “enhanced” interrogation and “waterboarding” programmes. In a highly unusual legal move, the media and public were barred from the opening day’s session.”
In other legal news, lawyers for Stephen J. Kim, the former State Department employee accused of leaking sensitive defense secrets, are arguing for the Justice Department to drop its case against him. Kim’s lawyers claim that the case would never have been brought under the DOJ’s current guidelines on leak investigations, namely that the new leak policy “would have stopped investigators from obtaining some of the evidence they are now using to prosecute Kim.”
In declassification news, the CIA has declassified the September-December 1951 Director’s Logs for CIA director General Walter Bedell Smith, which “are replete with interesting goodies about the type of CIA clandestine intelligence gathering and covert action operations that the agency’s National Clandestine Service has traditionally refused to declassify,” including instances of secret sabotage operations with Chinese guerrillas, who, in the employ of the CIA, “blew up a oil refinery in the former Portuguese colony of Macau on December 1, 1951.” Also of interest, the Armed Forces Special Weapons Project has publicized a document that sheds light on 1951’s Operation Buster Jangle, in which scientists in DC listened for atomic explosions taking place in Nevada so that they could hone the skills to be able to tell when the Soviets detonated nuclear weapons thousands of miles away.
Finally this week, the Public Interest Declassification Board (PIDB) recently held its latest meting seeking advice from the requester community “about what the government should prioritize for declassification.” Over the next few weeks the PIDB will also be posting topics for its prioritization list on its blog, Transforming Classification, through mid-January 2014, and is asking the public to comment. The topics on the blogs fall into one of five categories: Topics 25 Years Old and Older, Topics 25 Years Old and Younger, Topics Related to Formerly Restricted Data (FRD) Information, General Topics of Interest, and Topics Specifically Gathered from Presidential Libraries. Please check out their blog and provide your feedback!
In December 2013 the National Security Archive, with the help of our partners at ProQuest, will publish our latest document collection, Mexico-United States Counternarcotics Policy, 1969-2013. The collection of 1,877 documents, which will be by far the most comprehensive collection of primary source material on the subject available, will let the public delve directly into critical events in the evolution of Mexico-U.S. drug policy, including policy reviews, internal assessments, intelligence and investigation reports, memoranda of conversation, and diplomatic cables, which provide an intimate view of the dynamics of the U.S.-Mexico relationship.
This collection focuses on one aspect of the complex and multifaceted US-Mexican relationship: counternarcotics policy. Using records of high-level bilateral meetings; reports of counternarcotics operations, ground-level arrests, and drug seizures; and day-to-day reporting on the rise of drug trafficking, violence, and official corruption, this set traces U.S.-Mexican drug-control cooperation from the Nixon administration through the first term of the Obama presidency. These documents follow the often-contentious relations between the hemisphere’s largest consumer of illegal drugs and the principal producer and transit point for those substances. It chronicles the impact of U.S. drug policy on Mexico-U.S. relations; the infusion of counternarcotics aid in the form of equipment, training, and joint eradication programs; and the transformation of drug control from a law enforcement to a national security issue.
Among the important topics covered are:
- Operation Intercept and subsequent U.S. and Mexican drug control campaigns;
- the controversial use of herbicides for opium and marijuana crop eradication;
- the rise of Mexican cartels, drug violence, and official corruption;
- the 1985 murder of Drug Enforcement Administration (DEA) special agent Enrique Camarena by Mexican drug traffickers;
- The abduction and transfer to the U.S. of Guadalajara physician Humberto Álvarez Machaín at the behest of the DEA;
- bilateral talks over conditions governing U.S. drug control aid;
- cooperative law enforcement efforts, including information sharing, joint operations, and extradition treaty negotiations
- Mexican concerns about U.S. deployment of Joint Task Force Six along the southwest border;
- U.S. efforts to tie foreign aid to drug control through the counternarcotics certification process;
- the effect of the North American Free Trade Agreement (NAFTA) on the drug trade; and
- development and implementation of the Mérida Initiative.
Mexico-U.S. Counternarcotics Policy, 1969-2013 presents a uniquely detailed compendium of declassified documents, with some publicly available records integrated for context, to help researchers gain an in-depth understanding of more than four decades in the history of one of the United States’ most important bilateral relationships. These documents are the result of a long-term, intensive effort by the National Security Archive’s Mexico Project, led by Senior Analyst Kate Doyle, to obtain the declassification and release of materials under the U.S. Freedom of Information Act (FOIA) and Mandatory Declassification Review (MDR) process. FOIA and MDR requests targeted the State Department (including the embassy in Mexico City and consulates in Mexico), Defense Department, Drug Enforcement Administration, Central Intelligence Agency, Federal Bureau of Investigation, the Nixon, Ford, Carter, Reagan and George H.W. Bush presidential libraries, and the National Archives and Records Administration (NARA).
With such a rich assortment of policy-level material, the collection can be used to glean invaluable insights into subjects of even broader reach and import – U.S. relations with Central America and Latin America, and the worldwide narco-crisis, for example. Moreover, researchers studying presidential decision-making, the interagency policy process, the intelligence community, federal-state cooperation, the nexus between policy-making and law enforcement – not to mention international relations, U.S. history and international law – will find much of interest to explore.
We are looking forward to sharing the results of the Archive’s FOIA and MDR efforts with the public, so please stay tuned for the Collection’s publication at the end of this year!
A Look Back at the Berlin Crisis and How Further Declassifications would Promote Transparency over Conspiracy in JFK Assassination
Today marks the 50th anniversary of JFK’s assassination in Dallas, and a recent Frontline special expressed what many open government advocates have long argued –that the CIA’s refusal to declassify records related to the event is the primary fuel for conspiracy theorists. To mark the anniversary, Unredacted is taking a look back at the one of the central events of JFK’s presidency, the Berlin Crisis, as well as at the new trove of documents recently declassified by the National Declassification Center (NDC) and the CIA on life in West Berlin, which includes documents on the construction of the Berlin Wall. The recent declassifications are a step in the right direction, and should pave the way for more significant declassifications on the assassination of JFK itself.
On June 26, 1963, President John F. Kennedy delivered his iconic ‘Ich bin ein Berliner’ speech to a crowd of well over 100,000 people in West Berlin, expressing his solidarity with its citizens. The speech was an important morale boost for the city’s occupants, who had been living behind the Berlin Wall for almost two years, and reinforced West Berlin’s importance for American policy makers, who viewed the city as a front line of American national defense.
Berlin, often a focal point of Cold War tensions, was perhaps no more significant than it was during the Berlin Crisis, and the Digital National Security Archive’s Berlin Crisis collection is the most comprehensive documentation of it available. The Archive’s Berlin Crisis, 1958-1962 provides a record of U.S. policy during the most prolonged U.S.-Soviet crisis of the Cold War era, beginning with the November 10, 1958, statement made by Soviet Premier Nikita Khrushchev to a Moscow audience, in which he said that the United States and its Allies had violated four-power agreements regarding control of Berlin and Germany, which the Grand Alliance had framed at the close of World War II. Violations such as the rearmament of West Germany, Khrushchev declared, made it necessary to end the postwar occupation of Berlin. His call for the West to withdraw its occupation garrisons from West Berlin and a subsequent Soviet note giving a six-month deadline for a Berlin settlement are commonly regarded as the events which touched off the Berlin crisis of 1958-1962, potentially one of the most dangerous disputes of the Cold War era. The crisis that U.S. policy makers feared, and prepared for, during 1958-1962 was not a “Wall” but the possibility that Khrushchev would turn control of Allied access to West Berlin over to the East Germans, forcing the Allies to deal with the GDR, a state that they had refused to recognize.
For four years, from late 1958 until late 1962, world leaders worried that the ongoing controversy over the political status of West Berlin would spark a military confrontation and general war. Analysts of the Berlin crisis have suggested various dates for the culmination of the Crisis: August/September 1961, with the construction of the “Wall;” late 1962, with the conclusion of the Cuban missile crisis and subsequent superpower aversion to confrontation; or late 1963, after the series of incidents at the autobahn checkpoints (the “Tailgate Crisis”). Developments from September 1961 until late 1962, such as the air corridor incidents in March 1962, the failure of the prolonged U.S.-Soviet discussions and the ongoing Allied efforts to formulate contingency plans, suggest that Berlin remained a source of serious concern and tension in U.S.-Soviet relations through the end of 1962 and late 1963.
Now, thanks to the NDC and CIA’s joint release of nearly 11,000 documents on life in Berlin between the JFK speech and the razing of the Wall, the public will have a better chance to contextualize and analyze the Berlin Crisis. A selection of the release, 2,464 pages, is available online, and the whole set is available for research at the National Archives at College Park, MD, located at 8601 Adelphi Road, College Park, MD.
Unlike the Berlin Crisis, the NDC has yet to review and declassify the final 50,000 pages of government documents regarding the JFK assassination that are still sealed from the public, likely because of the CIA’s intransigence, despite the Kennedy Assassination Records Collection Act of 1992 that mandated that all federal records pertaining to JFK’s assassination be transmitted to the National Archives (NARA). The Act required that each assassination record be publicly disclosed in full, and be available in the collection no later than the date that is 25 years after the date of enactment of the Act (October 26, 2017), unless the President certified that releasing the documents would cause “identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations” and if that harm outweighed the public interest in disclosure. Given the rapidly approaching 25-year deadline, the response the NDC received when it asked historians what documents should be a priority for declassification, and the enormous public interest in the documents, it would have been appropriate for the CIA disclose the last of its documents on the JFK assassination for the 50th anniversary and promote transparency in the place of conspiracy.
New documents pried loose from the National Security Agency (NSA) by a FOIA lawsuit reveal that the NSA ‘repeatedly violated its own privacy guidelines in a now-defunct program to collect “to and from” data in American email.’ The Foreign Intelligence Surveillance Court (FISA) judge’s opinion on the program said that there had been “systemic over collection” in the email program and that “those responsible for conducting oversight at the NSA had failed to do so effectively.” In U.S. District Judge Colleen Kollar-Kotelly’s legal opinion that authorized the email program in the first place, Kollar-Kotelly said, “Americans did not have a reasonable expectation of privacy for their email and telephone metadata — information that shows who they are in contact with but not the content of their communications. Intelligence officials have compared metadata to the address written on the outside of a mailed envelope.”
Meanwhile, in the wake of Edward Snowden’s leaks about the NSA’s surveillance practices, the Director of National Intelligence’s general counsel compared NSA surveillance to glitches in the new health care website, claiming, “[c]omplicated technology systems frequently don’t work as they expect them to…Using the word “abuse” in the context of the operation of the surveillance program is a little bit like saying the Department of Health and Human Services is abusing people because of the fact that the Obamacare websites don’t work properly. They are complicated.”
Complicated or not, the NSA’s FOIA office is swamped with requests from individuals who want to know if the agency spied on them. The agency’s FOIA office reported an 888% increase in requests for the latest fiscal year, and is responding to all of them with form letter saying the NSA can neither confirm nor deny that any information has been gathered. Archive FOIA Coordinator Nate Jones says this huge spike “confirms that in the case of the NSA, leaks work. They don’t release anything through normal means. The only way the public really learns about them is through leaks.”
The Supreme Court has ruled that the NSA may continue its surveillance of domestic telephone communication records, at least for the time being. The justices rejected the appeal, filed by the privacy rights group EPIC, without comment. The appeal was filed ‘directly with the high court, bypassing the usual step of going to the lower federal courts first. Such a move made it much harder for the justices to intervene at this stage, but EPIC officials argued “exceptional ramifications” demanded immediate final judicial review.’ On a related note, Attorney General Eric Holder has announced that the Department of Justice is reviewing all criminal cases that utilized evidence obtained by its “warrantless surveillance program and will be notifying defendants in some of those cases.”
Undeterred by the scrutiny the NSA is under, the CIA “is secretly collecting bulk records of international money transfers handled by companies like Western Union — including transactions into and out of the United States — under the same law that the National Security Agency uses for its huge database of Americans’ phone records.” The financial records program is overseen by the FISA court and authorized by the same provision in the Patriot Act as the NSA’s bulk surveillance programs, and is “evidence that the extent of government data collection programs is not fully known and that the national debate over privacy and security may be incomplete.”
In other federal law enforcement news, a recent Foreign Policy article by Matthew Aid reveals how the FBI has aided the NSA in intercepting “the communications of all diplomatic missions and international organizations located on American soil. In some important respects, the FBI’s cryptologic work is more secretive than that being performed by the NSA because of the immense diplomatic sensitivity of these operations if they were to ever be exposed publicly.” Also at the FBI, the former bureau agent responsible for leaking secret information to the Associated Press (AP) about US operations in Yemen in 2012 has been sentenced to three years in process. The leak spurred the Department of Justice to seize months of AP journalists’ phone records in search of the source. In related news, federal prosecutors have assured that WikiLeaks founder Julian Assange is not under a sealed indictment, demonstrating that prosecutors are, for now, “drawing a distinction between those who were government employees or contractors and were required by law to protect classified information and those who received and published the material.”
Finally this week, the Pentagon reported that Guantanamo Bay detainees’ Periodic Review Board will be closed to the public, despite Defense Department deputy director of detainee affairs saying earlier the Pentagon was committed to “beginning the PRB process as expeditiously and transparently as possible.”
U.S. District Judge Richard J. Leon yesterday rejected legal action by Chiquita Brands International to prevent the release under the Freedom of Information Act (FOIA) of records relating to the company’s illegal payments to a Colombian terrorist group.
Judge Leon upheld the decision by the U.S. Securities and Exchange Commission (SEC) to deny Chiquita’s request for confidential treatment of corporate records it had turned over during the course of SEC’s investigation of its operations in Colombia. ”[T]he Court concludes that the SEC’s denial of Chiquita’s request for confidential treatment was reasonable and did not violate the Administrative Procedures Act (“APA”),” the judge said in a ten-page “memorandum opinion” issued yesterday.
The ruling clears the way for the SEC to finish processing FOIA requests submitted five years ago by the National Security Archive relating to illegal payments to the United Self-Defense Forces of Colombia (AUC), a right-wing “paramilitary” organization responsible for the majority of murders, disappearances and forced displacements in Colombia’s internal conflict. The documents at issue are primarily legal and financial records pertaining to more than a decade of “sensitive payments” made by the company and its subsidiaries to the AUC and to leftist guerrilla groups like the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN).
“We are extremely pleased that Judge Leon has dismissed Chiquita’s effort to stop the release of records on its funding of Colombian terrorist organizations,” said Michael Evans, director of the Archive’s Colombia Documentation Project. “This could be the most important collection of documents ever assembled on corporate ties to terrorism,” Evans said. ”Finally, the public will be given the opportunity to see the records behind the only case in which a major U.S. corporation has been convicted of funding a foreign terrorist group.”
The illicit payments were first revealed in a 2007 sentencing memorandum issued by U.S. Attorney Jeffrey A. Taylor outlining the terms of Chiquita’s plea bargain in the case. Taylor found that, over an eight-year period, “[defendant] Chiquita made over 100 payments to the AUC totaling over $1.7 million.” The U.S. government designated the AUC as a “Foreign Terrorist Organization” (FTO) on September 10, 2001.
Chiquita has long maintained that the payments were the result of extortion, and the sentencing memo states that the company had never received “any actual security services or actual security equipment in exchange for the payments.” Nevertheless, Chiquita records produced by the U.S. Department of Justice in response to similar Archive FOIA requests reveal that the company did, in fact, receive some security services in return for its payments. “Money for info on guerrilla groups,” read one Chiquita memo, written in March 2000. “Can’t get the same level of support from the military.”
In a 1994 memo, the general manager of Chiquita operations in Turbó admitted that guerrillas were “used to supply security personnel at the various farms.” Company lawyers were understandably concerned. A handwritten annotation on a subsequent draft of the document asked, “Why is this relevant?” and, “Why is this being written?”
In arguing its case before the SEC and U.S. District Court, Chiquita maintained that release of the records would interfere with the fairness of lawsuits pending against the company in the U.S. on behalf of the victims of AUC violence. Judge Leon soundly rejected this argument, saying, “There can be no doubt that the SEC rationally determined from the record that disclosure of the Chiquita Payment Documents would not seriously interfere with the fairness of the Florida Litigation,” citing the company’s failure “to specifically articulate how disclosure of the Chiquita Payments Documents would confer an unfair advantage upon plaintiffs in the discovery process.”
Chiquita further argued that release of the records would unfairly impact a preliminary criminal investigation by Colombian judicial officials of the the company’s illegal activities. Nevertheless, Judge Leon held that, “The SEC properly rejected Chiquita’s argument that judicial officials in Colombia would be unable to exclude improper inferences in reaching a decision.” He noted that, “Judicial officials, unlike jurors, are trained and experienced in distinguishing between proper evidence and adverse publicity.”
Judge Leon also rejected Chiquita’s argument that the records be withheld to prevent the Archive from engaging in a “media campaign based on gross mischaracterizations of released documents.” The judge rightly found that the FOIA requires that plaintiffs show that the release of documents “would” deprive the party of a fair adjudication. “With respect to the Florida Litigation, there is no certainty about the degree of publicity that may result from disclosure,” said Leon in the Court’s decision. “Chiquita has failed to show why common judicial safeguards like voir dare would be insufficient to ensure fairness where there is a ‘large diverse pool of potential jurors.’”
The Court also dismissed Chiquita’s argument that the SEC be forced to “blindly apply the same exemptions and redactions” to overlapping records processed by the Department of Justice nearly three years ago when it produced nearly 5,500 pages of Chiquita records in response to similar FOIA requests. Leon said, “Chiquita cannot cite any legal authority for the proposition that the SEC must adhere to determinations previously made by DOJ regarding Overlapping Documents.”
As important a legal victory as this is for the Archive, an appeal by Chiquita seems likely and will further delay the disclosure of these important records.