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FRINFORMSUM: 5/24/2011

May 24, 2011
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On Sunday, the CBS news show 60 Minutes ran a story on accused National Security Agency whistleblower Tom Drake.  Mr. Drake worked as a senior executive at the NSA in the years following 9/11 after a long career in the intelligence community. At the NSA, Mr. Drake grew increasingly bewildered and frustrated by the waste in a NSA modernization program.  He first raised concerns to his superiors at the NSA, then intelligence committees in Congress, and a confidential complaint with the Department of Defense Inspector General. When the IG investigation was given a “classified” stamp, effectively blocking the modernization debacle from public view, Mr. Drake decided to begin anonymously leaking his story to the press.  He is being charged under the Espionage Act of 1917.

The plaintiffs, the Center for Constitutional Rights, the National Day Laborer Organizing Network, and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, in a Freedom of Information Act lawsuit against the Department of Homeland Security claim that the agency is withholding information regarding a controversial fingerprinting program.  DHS refuses to release emails and metadata dealing with a program called Secure Communities that checks the fingerprints of people brought in by law enforcement against databases of dangerous aliens.  The plaintiffs argue that the legality of forcing jurisdictions to transmit data to a federal agency is questionable. Furthermore, a U.S. District Judge has already ordered the government to include metadata in releases associated with this case. The linked article also notes that the FOIA resources at Immigration and Customs Enforcement are inadequate for dealing with the information requested in this case.

President Obama asked the Public Interest Declassification Board, a White House advisory group, to make recommendations for a “fundamental transformation” of the national security declassification system. The Board is holding a public meeting this week (May 26) at the National Archives to present and discuss their proposals.  A lack of defined direction, apathy in the national security leadership, and a lack of influence could limit what the Board can accomplish.  The National Security Archive has submitted a proposal for transforming the classification system.

Last week, attorneys at the Department of Justice requested a court dismiss a lawsuit brought against the Department of Defense and Central Intelligence Agency.  The lawsuit was brought by Anthony Shaffer, author of “Operation Dark Heart.” The book is a memoir of Mr. Shaffer’s military service in Afghanistan.  Shaffer’s book allegedly contains classified information, but censored and uncensored versions are already in circulation.  Declassification of different parts of the book is an ongoing process and Mr. Shaffer claims that his freedom to publish is being infringed upon. At the very least, this case provides an opportunity for a public assessment of classification practices – links to different versions of the memoir are available in the linked article.

Last Thursday, the Senate Judiciary Committee approved the “Sunshine in Litigation Act,” which would require judges to consider public health when deliberating protective orders and sealing court records/settlement agreements.  This bill is of particular importance to product-liability lawsuits against pharmaceutical firms. These firms regularly succeed in convincing judges to impose protective orders so that “trade secrets” remain sealed and plaintiffs typically go along so the case can be advanced.  The linked article details a number of cases when the failure to disclose this information has covered up fraud and scandal that ultimately could harm consumers.

Executive Order 13571 was signed on April 27 and requires agencies to develop plans to improve the efficiency and effectiveness of their customer service.  One requirement includes “improving the design and management of agency websites providing services and information to the public.”  Coming from personal experience in delving through agency FOIA websites, I can typically find what I am looking for on the websites, but my searches are focused and I know what I am looking for.  However, for a layman, not all agency FOIA websites are created equally.  For comparison’s sake, here is the FOIA website for the Department of State and the FOIA website for the National Mediation Board.  The Department of State undoubtedly gets more traffic, but the National Mediation Board’s website is a relic of an early age of the internet and nothing excuses such neglect.  Agencies must publish their plans within 180 days.

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