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FRINFORMSUM 1/16/2014: DOJ Moves to Finalize FOIA Reg Changes, Obama’s Surveillance Options, Drones, and Much More.

January 16, 2014
Melanie Pustay, director of the DOJ's Office of Information Policy, and her office are attempting to sneak through FOIA regs that would allow agencies to willfully mislead requesters. Pustay is seen here testifying before the Senate Judiciary Committee in March 2013.

Melanie Pustay, director of the DOJ’s Office of Information Policy, and her office are attempting to sneak through FOIA regs that would allow agencies to willfully mislead requesters. Pustay is seen here testifying before the Senate Judiciary Committee in March 2012.

The Department of Justice is moving to finalize changes to its FOIA regulations, but there’s no way of knowing what’s in them until they are published in the Federal Register. Gavin Baker of the Center for Effective Government tipped us off to this development, and it’s cause for concern given the DOJ’s Office of Information Policy (OIP) record with proposed FOIA regulation changes. Back in 2011 the DOJ proposed changing their regulations to allow some federal agencies to falsely state that no records exist when the requested documents fit within certain guidelines, thereby authorizing agencies to willfully deceive FOIA requesters on a case-by-case basis. The proposed changes spurred serious concerns from the open government community about the necessity and, more importantly, the legality of such a rule change. OIP Director Melanie Pustay responded to the criticisms during a March 2012 Senate Judiciary Committee hearing by saying,  “some people misinterpreted what we were trying to do, misconstrued some of the provisions, and didn’t necessarily understand some of the fee guidelines.” Pustay’s misrepresentation of the proposed changes led Archive Director Tom Blanton to warn during his own Senate testimony that these were “vampire” regulations that weren’t gone for good, and we would be sure to see again. Despite the previous controversy, and without giving the public a chance to review and comment on these latest regulations, on January 9 the DOJ submitted their final rule changes to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for final approval. If OIRA approves the regulations, they could be published in the Federal Register and go into effect.

Current and former Foreign Intelligence Surveillance Court (FISC) judges recently penned a letter opposing the surveillance recommendations from President Obama’s surveillance review group. The letter, which was written by the court’s former chief judge, John D. Bates, and released on Tuesday, argues implementing the review group’s recommendations would increase the court’s workload and decrease its effectiveness. Specifically, “[t]he judges’ principal objections focused on recommendations to appoint an independent privacy advocate to represent the public’s interests before the court and on a proposal that administrative subpoenas, known as national security letters, be approved by the court before being issued.” Read here for more on the hyper-powerful National Security Letters.

The judges’ letter was released the same day as Obama’s surveillance review group testified before the Senate Judiciary Committee. During the review group’s testimony, former CIA Deputy Director Mike Morrell said that the National Security Agency’s (NSA) claim that only impersonal metadata is being collected in its bulk phone record collection program is misleading, as “[t]here is quite a bit of content in metadata…There’s not a sharp distinction between metadata and content. It’s more of a continuum.”

Morrell also reiterated that the NSA’s domestic phone data collection “has not played a significant role in preventing any terrorist attacks to this point.” His testimony was buoyed by the release of a New America Foundation study that found out of the 225 terrorism cases carried out in the U.S. since 9/11, the program “has had no discernible impact on preventing acts of terrorism,” and that in the “majority of cases, traditional law enforcement and investigative methods provided the tip or evidence to initiate the case.” In related news, Lawyers for an Oregon man, 22-year old Mohamed Osman Mohamud, are arguing he was entrapped prior to his conviction for attempted terrorism last year, paving the way for the first “constitutional challenge by a criminal defendant” to the NSA’s warrantless surveillance program.

President Obama will announce changes to domestic surveillance practices on Friday, January 17. The President is expected to “increase limits on access to bulk telephone data,” but most key decisions will belong to Congress. Insiders say the President is “unlikely to seize the opportunity to rein in the agency’s vast surveillance programs. Instead, he will punt. Of the 43 recommendations from a panel that reviewed the agency’s programs, Obama is expected to embrace very few… leaving the harder task of long-term surveillance reform to Congress and the courts.”

DNI director Clapper explained his reason for responding "untruthfully" to questions about the NSA by saying it was like being asked “when he was going to stop beating his wife.”

DNI director Clapper explained his reason for responding “untruthfully” to questions about the NSA by saying it was like being asked “when he was going to stop beating his wife.”

It’s been widely reported that the Director of National Intelligence, James Clapper, lied to the Senate Intelligence Committee last March while discussing the NSA’s domestic data collection programs. Secrecy News’ Steve Aftergood has an excellent piece on the other side of the story, analyzing why the Committee allowed Clapper’s lie to go uncorrected. Aftergood argues that Clapper’s “response challenged the Committee to make its own choice either to disclose classified information about the NSA program — in order to rebut and correct the DNI’s answer — or else to acquiesce in the dissemination of false information to the public… As it turned out, the Senate Intelligence Committee made exactly the same choice that DNI Clapper is accused of making. The Committee evidently decided that national security classification trumped any obligation it had to produce an honest and accurate public record. As a result, the Committee itself became complicit in an act of public deception.”

Documents recently released in response to an Electronic Frontier Foundation FOIA lawsuit reveal that Custom and Border Patrol (CBP) drones are being “borrowed” more than previously thought. The documents show that CBP ran more than 700 flights between 2010 and 2012 for other local and federal agencies for domestic surveillance operations. Privacy advocates argue drones could lead to visual surveillance of Americans on private property, while the government argues there is no meaningful legal distinction between the use of unmanned and piloted aircraft for surveillance.

Finally this week, Congress has blocked President Obama’s attempt to shift control of the foreign U.S. drone campaign from the CIA to the Pentagon. Lawmakers inserted a secret provision restricting “the use of any funding to transfer unmanned aircraft or the authority to carry out drone strikes from the CIA to the Pentagon” in the $1.1 trillion federal budget plan currently awaiting Senate approval. This Congressional action “represents an unusually direct intervention by lawmakers into the way covert operations are run, impeding an administration plan aimed at returning the CIA’s focus to traditional intelligence gathering and possibly bringing more transparency to drone strikes. The move also reflects some lawmakers’ lingering doubts about the U.S. military’s ability to conduct strikes against al-Qaeda and its regional affiliates without hitting the wrong targets and killing civilians.”

As always, happy FOIA-ing!

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