On the 50th anniversary of the U.S.-supported overthrow of Joao Goulart in Brazil, his son, Joao Vicente, has petitioned the Brazilian Senate to officially request the declassification of still secret U.S. documents on the covert operations that contributed to that dramatic coup d’tat. Given the bilateral tensions in current Brazilian-U.S. relations—generated by a more modern form of US penetration in Brazil’s internal affairs—it seems unlikely that the Obama administration will release such documentation anytime soon.
Yet if there was ever an opportunity to use declassified U.S. historical records as a unique diplomatic tool that time is here, and now.
The U.S. government has, in fact, practiced the art of declassified diplomacy in a number of nations—reviewing and releasing thousands of records stored in the “secure compartmentalized information facilities” (SCIFS) of the CIA, the Defense and State Departments among other national security agencies—as diplomatic gestures, as well as to advance the pursuit of human rights, truth and justice. Like other foreign policy tools—economic aid, trade, and diplomatic support–these historical records can provide a potent contribution to advance U.S. interests in stability and a peaceful and more just global community.
In Ecuador, for example, despite tensions with the populist government of Rafael Correa, the administration of George W. Bush made an important gesture of a special declassification of State Department records to assist the Ecuadoran truth commission. In Chile, after the arrest of General Augusto Pinochet in London, the Clinton administration ordered the review and release of 23,000 secret documents. In a public ceremony at the Biblioteca Nacional in Santiago, the U.S. Ambassador, John O’Leary, turned over dozens of binders filled with declassified CIA, NSC, State and Defense Department records. In Guatemala in 2011, the U.S. Embassy and USAID donated an installation of hi-speed computer terminals in the reading room of the General Archive of Central America in Guatemala City and a special collection of declassified records. The gift, explained U.S. Ambassador Scott McFarland, was intended to provide victims’ families with access to the collection, “Death Squads, Guerrilla War, Covert Operations, and Genocide: Guatemala and the United States, 1954-1999”—compiled by National Security Archive senior analyst Kate Doyle—which contains over 2000 CIA, State and Defense Department documents.
To its credit, since the mid 1970s the U.S. government has been declassifying secret documents on its role in the Brazilian coup, through routine declassification procedures and the U.S. Freedom of Information Act. Even the White House tapes of Presidents Kennedy and Johnson discussing the intricacies of coup plotting, regime change, and military intervention in Brazil with their aides are now available for public scrutiny. From these records we know many of the secret details of “Operation Brother Sam”—the Pentagon’s plan to provide guns, gasoline, and even combat troops if needed, to secure the success of the military coup. “We wouldn’t want the Brazilian military to move until we have everything in place,” states one Top Secret White House memorandum dated March 30, 1964. Nevertheless, the covert actions of CIA agents in Brazil at that time remain deeply classified.
For a proud and independent nation such as Brazil, the imperial arrogance and audacity reflected in these records are offensive, to say the least. But if there is one positive outcome of the significant U.S. involvement in the coup and support for the military regimes that followed over the next twenty-one years it is the detailed historical record left behind. The secret archives of the U.S. government contain thousands of cables, reports, intelligence assessments and memorandums of conversations that can, and will, shed light on the era of repression in Brazil.
One declassified 1973 State Department cable that my office recently provided to the Brazilian National Truth Commission, for example, actually reveals the existence of a military intelligence center in the Sao Paolo district of Osasco where systematic and grotesque violations of human rights abuses took place. One of the torturers from that center bragged to U.S. officials about using the infamous parrot perch torture technique to break the will of prisoners. He also offered a “first hand account” of an execution technique he called “sewing the suspect up…shooting him from head to toes with automatic weapons.” It was “standard procedure,” the U.S. Embassy reported, to kill suspected “terrorists” in São Paolo.
The Brazilian military and intelligence services appear to have disappeared their own dark archives–just as they have disappeared their victims. For that reason, declassified U.S. documents will prove invaluable to the ongoing work of the truth commission in Brazil, as well as to citizens here and in the United States who have a right to know their history, as well as a right to justice. It is a right that remains fundamental to the democratic health of our societies.
Peter Kornbluh directs the Brazil Documentation Project at the National Security Archive, a public interest research center in Washington D.C. that specializes in declassified foreign policy records. This article first appeared in Portuguese in Folha de S.Paulo.
Information commissioners must determine whether migrant killings violated human rights
Judge says right to information is a “human right” that supersedes “disproportional” application of exemption pertaining to legal investigations
In a case that with important ramifications both for access to information and for human rights investigations in Mexico, a federal judge declared last week that the country’s information commissioners can and should determine whether an infamous 2010 massacre of 72 migrants in Tamaulipas state by alleged agents of the Zetas drug cartel might constitute a grave violation of human rights under established international legal norms. If so, plaintiffs argue, the Attorney General of Mexico (PGR) must release an unclassified version of its investigative file on the massacre in accordance with Mexico’s access law, which prohibits the withholding of records relating to grave violations of human rights or humanitarian law.
The commissioners from Mexico’s Federal Institute for Access to Information (IFAI) have until now resisted efforts by civil society groups, led by Article 19 in Mexico, to force the oversight body to make such a determination. In September 2013, IFAI ruled that it “did not have the faculty, capacity, expertise, knowledge, or the personnel to investigate and determine the existences of grave human rights violations or crimes against humanity” with respect to the San Fernando killings (see Article 19 press release). Absent an official determination that the massacre constituted a violation of human rights, IFAI claimed it could not invoke the clause in Article 14 of Mexico’s transparency law that mandates disclosure of otherwise protected documents when they relate to such violations. The commissioners thus rejected the appeal from Article 19, and refused to order PGR to release its investigative files on the San Fernando case (see previous posts on IFAI September 2013 ruling).
Article 19 appealed that decision, and the recent ruling found that IFAI is in fact capable of interpreting the law to determine if the massacre could constitute a grave violation of human rights based on the criteria set by Mexico’s Supreme Court and the Inter-American Human Rights Court (see Article 19 press release). The judge also found that IFAI’s September 2013 decision—that the human rights nature of the case must be determined by another authority before IFAI can rule on the opening of related documents–was itself a violation of citizens’ right to information.
In a remarkable passage from the court’s ruling, the judge found that the PGR’s decision to withhold information pertaining to its “preliminary investigation” of the massacre – a determination that was approved by IFAI – is “disproportional” and “violates the human right of access to information.”
The ruling orders IFAI to take another look at the San Fernando case, to determine if the killings might reasonably constitute grave human rights violations under guidelines clearly defined by the court, and if so, to order the Attorney General to release the public version of its investigative file.
A strategic right to truth campaign
If upheld, the court’s ruling would be an enormous victory for human rights defenders and transparency advocates in Mexico and could have a transformative impact on the efficacy of using the Mexican access law to investigate violations of international human rights norms.
Through Migration Declassified, the National Security Archive continues to support the campaign launched last year by Article 19 and the rest of our partner organizations to promote the right to the truth with respect to the San Fernando case. The case is part of a coordinated campaign, involving transparency activists and migrant rights defenders in the U.S. and Mexico, all working to push back the veil of secrecy surrounding violence against migrants.
Nearly four years later, the federal and state agencies responsible for investigating the case appear unwilling, or incapable, of fully investigating the massacre. Surviving family members of massacre victims were incensed when Mexico’s National Human Rights Commission (CNDH), in its formal report on the case, declined to say whether the acts constituted grave violations of human rights. Family members of the victims, along with the Fundación para la Justicia (FJEDD) have now taken legal action against the CNDH and are challenging the unassailability of the commission’s rulings (see previous post on legal challenge against CNDH). The complaint argues that CNDH, the agency charged with the protection and defense of human rights in Mexico, did not fully investigate the case, did not solicit the views of victims and family members or respect their right to justice, and ultimately failed to determine whether the state was involved in the killings either through omission or direct action.
In consultation with these organizations, Migration Declassified has been engaged in a strategic effort to gain access to official government files with important information on abuses against migrants, and information on the San Fernando massacre is central to this effort. Using access to information laws in both countries, the strategy seeks to push U.S. and Mexican government agencies to disclose classified information essential to the defense of migrant rights on both sides of the border. The scale and the circumstances surrounding the San Fernando massacre, which was followed, the next year, by the discovery of hundreds more bodies in mass graves, makes the case emblematic of the horrors and abuses faced by migrants traveling through Mexico.
The strategy has resulted in the declassification of U.S. diplomatic cables and intelligence reports in support of both of these legal challenges. First published in August 2013, these records reflect U.S. concern that, despite prior knowledge, Mexican authorities did little to prevent cartel-related violence against migrants and deliberately downplayed the state’s responsibility for the massacres in San Fernando (see previous post on U.S. files). One U.S. Embassy Mexico cable sent to Washington just a few months before the massacre observed a state of “near total impunity” for Mexican cartels in the face of compromised security forces. Four years later, a culture of impunity remains.
The declassified U.S. files also provide details on the arrest of San Fernando police officials and suspected Zeta members in the wake of the massacre, including U.S. Drug Enforcement Agency (DEA) files on the arrest of Zeta leaders in April 2011. The DEA documents indicate that U.S. agencies are willing to release information that could be considered sensitive to law enforcement and investigative proceedings, paving the way for Mexico’s Attorney General’s office to release its investigative files on the case.
On the Mexican side, the strategy has produced a set of internal records from Mexico’s National Migration Institute (INM) relating to migrant protection programs implemented in the wake of the San Fernando massacre, including the creation of Migrant Protection Groups in July 2011 for deployment to dangerous migration routes (see INM documents released in FOI case 0411100064213). In one of our more recent cases, IFAI ordered INM to locate records in response to our requests for documents relating to the May 2011 firing of INM officials under allegations of involvement in abuses against migrants (see IFAI Resolution 5361/13, request # 0411100075613).
IFAI now holds the key to unlocking the case files behind a criminal investigation that has failed to produce a single conviction for the most shocking mass murder that Mexico has seen in a generation. Soon after the April 2011 discovery of bodies of the victims in mass graves in San Fernando, the Inter-American Human Rights Commission (IACHR) urged the “State of Mexico to maximize its efforts to ensure that such crimes do not happen again, to determine the victims’ identities, and to investigate, prosecute, and punish the perpetrators and masterminds, whether this is a case involving organized crime or State agents in collusion with organized crime” (see IACHR press release, April 2011). After nearly four years Mexico has failed every one of these tests. It will now be up to IFAI to determine whether the families of the San Fernando victims have the right to know why.
Something troubling happened this Sunshine Week.
At the 16th Annual National Freedom of Information Day at the Newseum’s Knight Conference Center, former White House Office of Information and Regulatory Affairs Administrator Cass Sunstein accepted the prestigious James Madison Award on behalf of the five-member President’s Review Group on Intelligence and Communications Technologies which recommended the end of bulk telephone metadata collection.
Then, Sunstein used his acceptance speech for the James Madison Award –which recognized those who “championed, protected and promoted public access to government information and the public’s right to know”– to invoke the memories of Madison and Thomas Jefferson to argue to a roomful of openness activists that they should support continued government secrecy.
Citing the debate during closed sessions of the Constitutional Convention more than 225 years ago,1 Sunstein appealed for the continued need to protect the “deliberative process.” Government agencies are increasingly citing this same “deliberative process” to trigger a Freedom of Information Act exemption –b(5)– that allows them to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public. This incredibly large cutout is often called the “withhold it because you want to” exemption.
The use of this “withhold it because you want to” exemption has skyrocketed over the past two years of the Obama administration. As a result, transparency advocates, including the National Security Archive, as well as members of House and Senate committees responsible for FOIA have targeted b(5) reform as a vital inclusion to any FOIA bill that passes Congress.
But perhaps I am just getting wound up. Maybe Cass Sunstein was not using the one week that the US celebrates openness to channel a White House message that meaningful reform to the FOIA won’t happen on its watch. Maybe he was using Madison and Jefferson on his own volition to “nudge” us away from attempting pro-transparency reform.
At any rate, as soon as I heard Sunstein’s Madison Award acceptance speech calling for continued (actually, increasing) secrecy, I endeavored to try and make the case why b(5) reform will be the most important FOIA fight over the next few years.
During the Obama administration’s third Sunshine Week, his FOIA point man, Steve Crowley pointed to the falling use of the b(5) exemption as proof that the administration really was working to “figure out where we can disclose information” and cited the b(5) dip as a FOIA success stemming from President Obama’s and Attorney General Holder’s instructions for agencies to operate with ” a presumption in favor of disclosure” with respect to FOIA.
But the Obama administration is certainly not making that argument anymore. According to stats compiled by the Associated Press, b(5) use is at an all time high, used 81,752 times in 2013 (applied to 12 percent of all of 2013′s processed requests) to deny information. This skyrocketing use of exemption b(5) has proven that a legislative fix is needed; the White House has been unable to get agencies to comply with it’s clear instructions on FOIA.
A few glances at the types of information b(5) is used to hide also demonstrates why the exemption needs to be reined in. These head-shaking denials also suggest, sadly, that the United States may have earned its embarrassing ranking of 44th-worst in the Global Right to Information World Wide Index. (The US FOI law falls between the Tunisian and Nigerian FOI laws.) Egregious examples of b(5) withholding include:
- The Department of Justice’s use of b(5) to censor dozens of pages of a candid history of Nazi-hunting (and Nazi-protecting) by the U.S. government to such a self-defeating extent that former officials leaked the entire document to the New York Times, instead of fulfilling a Freedom of Information request. The National Security Archive submitted a FOIA request for the history of the Office of Special Investigations in November 2009, only to be denied by the Justice Department on grounds that the document –although completed in 2006 and never revised since then– was only a draft and was “predecisional” and therefore withholdable under the b(5) exemption to the FOIA. When our appeal met no positive response –despite President Obama’s and Attorney General Holder’s clear guidance on FOIA –the Archive filed suit. Only after the lawsuit was filed did the Justice Department begin to “process” the document for release –which meant the wholesale application of b(5) “white-out” to sections of the document – deleting even the “personal opinions” of Congresswoman Liz Holtzman as she had expressed them in public as well as to the author of the history. Fortunately, a Department of Justice employee leaked a copy of this history to the public. See here to judge for yourself if the sections the DOJ “withheld because it wanted to” were justified.
- The CIA, supported by the Department of Justice, is currently using the b(5) exemption to keep secret its history of the 1961 Bay of Pigs Invasion, arguing that it’s release “could confuse the public.” As Judge for the US Court of Appeals Judith Rogers explained to U.S. Attorney Mitchell P. Zeff, the CIA and DOJ are attempting to “seek ad infinitum protection of drafts” when the FOIA is actually a disclosure statute and exemptions must be narrowly drawn.
- Muckrock’s Shawn Muscrave has reported that The Federal Elections Commission attempted to argue that it’s own guidance on when to apply b(5) is itself exempt from release under b(5) –even though it had already been posted on the FEC’s website. Muckrock has also compiled an extremely useful list of agencies’ b(5) guides.
- A protracted and wholly unnecessary fight over b(5) delayed the release of historic Henry Kissinger notes of telephone conversations, “telcons,” for seven years. In 2007, in response to a FOIA request filed in 2001, the State Department denied over 800 historic telcons on FOIA (b) (5) pre-decisional grounds. Finally, in 2013 the Department of State released a portion of them, including Kissinger’s conversations with government and former officials during the Ford Administration. As interesting as the telcons are, they contain no information that ought to have been withheld. Unquestionably they include candid discussion of issues and personalities and inter-government decision-making generally, but that provides no excuse for agencies to apply the b(5) “pre-decisional” FOIA exemption to federal records produced decades ago.
- The Department of Justice continues to use b(5) to withhold Office of Legal Counsel Opinions –opinions which, essentially, form a body of law that binds all federal agencies– even though the Freedom of Information Act clearly states that “statements of policy and interpretation [an] agency has adopted” must be released. Despite the Obama administration’s proclamations about a presumption of disclosure, The Center for Responsibility and Ethics in Washington’s strong case is currently pending in the US District Court. Recognizing the untenability of its argument, the Obama administration has officially released some OLC memos (such as the Bush-era memo blessing the legality of torture in some instances) and leaked others (such as the memo it leaked to Charlie Savage of the New York Times blessing the assassination of US citizen Anwar Al-Awlaki. No Espionage Act investigation or prosecution, of course.)
- Last year, the Department of State, and the U.S. Agency for International Development argued, ironically, to a federal judge that a Presidential Policy Directive instituting increased aid transparency should be withheld from the public (even though the Administration had released a “fact sheet” largely disclosing what was in the PPD). The Center for Effective Government was forced to file a FOIA lawsuit, which it won.
- Most recently, CIA Director John Brennan’s wrote a document for Senator Dianne Feinstein laying out his reasons for why he believed the Senate Intelligence Committee’s 6,200 page report on the CIA’s torture program should remain classified. To ensure that his reasoning about why the CIA’s torture program should, itself, remain hidden from the public and FOIA, he was careful to make sure the first page had the marking: “Deliberative Process Privileged Document,” signalling to his FOIA shop he wanted it denied under the b(5) exemption.
These are just a few of the most egregious examples of the b(5) “withhold it because you want to” that I could recall. If you have another example, add it in the comments.
B(5) was initially conceived to prevent government employees from “working in a fish bowl,” to allow employees to give each other –and their supervisors– candid advice. These protections should and must remain. But, b(5) was cited 81,752 times last year, certainly not always to protect the flow of government employee ideas and positions. President Obama correctly stated that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors and failures, or because of speculative or abstract fears. But these are precisely the things the b(5) “withhold it because you want” exemption is being used to hide more and more. Agency restraint has not worked. Proclamations from the President and Attorney General have not worked. It is time for a Legislative correction to the Freedom of Information Act.
Openthegovernment.org’s Amy Bennett opened her Senate Judiciary Committee testimony this Sunshine Week by stating that the open government community strongly supports b(5) reform to the Freedom of Information Act. The two-part fix she proposed will preserve the ability for government employees to give candid advice, while preventing the use of b(5) to withhold information that the public should have access to.
“One, Exemption 5 needs a public interest balancing test. If the government were not convinced that the requested documents would advance the public interest, a requester would still have the opportunity to ask a Court to independently weigh the government needs in invoking the privilege against the needs of the requester. Two, there needs to be a time limit. Currently, a President’s records are only protected from release [under the 'P(5) deliberative process' exemption of the Presidential Records Act] for twelve years from the end of that presidency. Surely, we should not accord more secrecy to agency business than we accord the President of the United States.”
Perhaps the best news of this Sunshine Week was that the FOIA Lion of the Senate, Chairman of the Judiciary Committee Patrick Leahy, signaled that he would work to reform b(5). At the same hearing, he said:
“Another impediment to the FOIA process is the growing use of exemptions to withhold information from the public… Federal agencies used FOIA Exemption 5 to withhold information from the public more than 79,000 times in 2012 ─ a 41 percent increase from the previous year. I am concerned that the growing trend towards relying upon FOIA exemptions to withhold large swaths of government information is hindering the public’s right to know.”
Another FOIA champion, Ranking Member Chuck Grassley, also signaled his willingness to continue to cooperate to produce legislation which reforms FOIA. Work between Senate Judiciary Committee Staff and open government groups is underway.
The House has already unanimously passed a FOIA bill co-written by the Chairman of the House Oversight Committee Darrell Issa and Ranking Member Elijah Cummings, which takes a step to stem the overuse of exemption b(5). The House-passed bill codifies that an agencies may only withhold information if it “reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.” Unfortunately, I believe that since agencies are already ignoring the President and Attorney General’s instruction, they will likely also ignore this part of the statute. A b(5) time limit and remedy for judicial review, as Amy Bennett testified, is the best fix.
Miriam Nisbet, Director of the FOIA Ombuds Office, the Office of Government Information Services, also spoke in favor or increased disclosure of information which could technically be withheld under b(5). Speaking at the Collaboration on Government Secrecy’s Freedom of Information Day at American University Washington College of Law. She called b(5) her “favorite exemption” because her Ombuds Office is often successful in getting more information released that agencies initially withheld under b(5).
Meanwhile, the Director of the Office of Information Policy –the other government agency nominally in charge of enforcing FOIA policy– provided confusing and disheartening testimony on b(5) recently. When asked about the startling increase in the invocation of the b(5) exemption DOJ OIP Director Melanie Pustay testified that it was due to an increase in invoking b(5) for “attorney work product and attorney client information, which is not subject to discretionary release like deliberative process is.” (emphasis added.)
However, she is contradicted by her own agency’s guidance circulated after her own Attorney General called for more discretionary releases, which states that both “attorney work product” and “attorney client information” are subject to discretionary release. Likewise, the Department of Justice’s own FOIA guide states (pages 689-690): “The universal considerations to take into account in considering whether to make a discretionary release of information that otherwise could be withheld under the deliberative process privilege are the sensitivity of the record’s contents and the age of the document. Records protected by other Exemption 5 privileges [ed: including "attorney work product" an "attorney client" information] can be the subjects of discretionary release as well.” (Emphasis added.) Such confusion within the DOJ OIP about when the b(5) exemption should be used demonstrates, again, the need for a Legislative fix.I’d like to end Sunshine Week with a bit of good news. There is one other high-ranking backer of b(5) reform. That is Special Advisor to the President John Podesta, brought back into the White house last December. His FOIA bona fides are impressive.
In fact, the first time I ever heard the phrase “withhold it because you want to exemption” was when he coined it, during his Sunshine Week 2011 testimony before the Senate Judiciary Committee calling for reform to b(5) FOIA exemption.
Mr. Podesta, please pass this blog post along to Cass Sunstein, and explain to the White House why opposing b(5) reform is a bad idea.
1. Sunstein did not mention that Congress is not covered by the Freedom of Information Act, so its members can continue to engage in candid speech and debate without threat. He also did not mention that the records of the Constitution Convention were unsealed thirty years after the fact. Meanwhile, the Central Intelligence Agency and Department of Justice are currently arguing in the DC Court of Appeals that the b(5) “deliberative process” exemption should last in perpetuity because the document they are attempting to hide (a draft history of the bungled 1961 Bay of Pigs invasion) has the potential to “confuse the public.”↩
Vladimir Channels the Gipper: Putin’s rationale for invading Crimea sounds a lot like Reagan’s for invading Grenada.
This article was originally published on ForeignPolicy.com.
Some of the most interesting analyses of the situation in Crimea have been written on the blog of the former American ambassador to the Soviet Union, Jack Matlock. Matlock, who served Presidents Ronald Reagan and George H.W. Bush, reminds Americans to empathize with Moscow about why Russian leaders might feel justified in violating Ukrainian sovereignty. “Russia would point out,” he writes, that the United States violated Panamanian sovereignty to arrest Manuel Noriega, invaded Iraq on “spurious grounds,” and has targeted individuals in at least six sovereign countries for assassination using drones. And don’t forget, Matlock urges us, that in 1983 the United States “invaded Grenada to prevent American citizens from being taken hostage (even though they had not been taken hostage).”
Imagine the chuckle I had, then, a day later when the Reagan Presidential Library finally mailed me its response to a Freedom of Information Act request I had filed three years earlier for National Security Decision Directives 105 and 110A.
On October 23, 1983, Reagan ordered that “The Secretary of Defense and the Chairman of the Joint Chiefs of Staff, in coordination with the Secretary of State and the Director of Central Intelligence [will] take control of Grenada, no later than dawn Tuesday, October 25, 1983.” This military invasion was justified, according to NSDD 110A, because “recent violence and instability have created a situation which could seriously jeopardize the lives and safety of American citizens.”
NSDD 105 spelled out other justifications for installing a Grenadian government that would be friendly to the United States: “A significant portion of our imported oil and U.S. commercial shipping transits through the sea lanes of the Eastern Caribbean. U.S. military logistic support and reinforcements essential for use in a Persian Gulf contingency must also pass through the region.” Another Caribbean island under Soviet influence could, therefore, pose a “significant threat to our economic and security interests.”
Reagan buttressed the military action with “a coordinated legislative and public affairs strategy” that would emphasize “the multi-lateral character of our actions”; “the human rights, abuses, and oppression of the current regime and the recent violence which potentially endangers U.S. lives”; and — with no apparent irony — “the democratic nature of the new government being installed.”
In many ways, Russian President Putin seems to be reading from Reagan’s 1983 script. His professed impetus for Crimea’s annexation was the “anti-constitutional takeover, an armed seizure of power” in Kiev. At a March 4 press conference he “retained the right to use all available means to protect” the Russian-speaking population in the eastern and southern regions of Ukraine. He has justified the annexation by stating: “We have already heard declarations from Kiev about Ukraine soon joining NATO. What would this have meant for Crimea and Sevastopol in the future? It would have meant that NATO’s navy would be right there in this city of Russia’s military glory [Sevastopol], and this would create not an illusory but a perfectly real threat to the whole of southern Russia.”
Similarly, Reagan’s authorization of “appropriate covert and deception measures … to mislead the present Grenadian regime and the Cubans concerning our true intentions” mirrors Putin’s use of subterfuge in Crimea — namely the flagless, balaclava-clad, unidentified commandos who quickly and surreptitiously claimed key Crimean airports, bases, and other strategic points.
The U.S. invasion of Grenada does differ from today’s Crimea situation in several ways. For one, the Organization of the Eastern Caribbean States did formally request U.S. help in removing “the outlaw regime on Grenada.” (Britain, Canada, and the U.N. General Assembly criticized the invasion.) Additionally, a coalition of allied Caribbean military forces did participate in the attack. Russia has acted unilaterally, failing to secure political support from even Belarus. Russia has threatened to cut energy exports, whereas the United States feared a potential blockade in 1983. And, of course, the United States did not annex Grenada after successfully installing a pro-American government.
Obviously, the revelations included in Reagan’s order to invade Grenada in no way constitute legal, political, or moral justification for the Russian annexation of Crimea. These declassified documents do, however, provide historical context for Amb. Matlock’s observations on the fickleness of great-power calls for respecting the sovereignty of other nations. After all, it was then-Soviet Minister of Foreign Affairs Andrei Gromyko who called the American violation of Grenadian sovereignty a “piratical act of terrorism and a challenge to the entire world.“
However altruistically motivated the United States claims its foreign interventions to be, even short-term military actions set decades-long precedents that our adversaries use to claim that they, too, must invade sovereign nations to protect their interests.
FRINFORMSUM 3/27/2014: Competing Plans to Overhaul the NSA, Senate to Vote Soon on Declassifying Parts of Contentious Torture Report, and Much More.
President Obama revealed he has endorsed a new plan to overhaul the National Security Agency’s (NSA) domestic metadata collection program this week. The White House has yet to release the plan itself, but has announced that it would, among other things, end the bulk collection of domestic phone records. The NSA currently holds on to domestic phone records for five years (even though most experts agree the records’ utility decreases significantly after two), “[b]ut the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require.” According to the New York Times, the plan “would also include a provision clarifying whether Section 215 of the Patriot Act, due to expire next year unless Congress reauthorizes it, may in the future be legitimately interpreted as allowing bulk data collection of telephone data.” The White House proposal –which has yet to be approved by Congress– would not, however, effect other forms of bulk records collection, like the CIA’s collection of records about international money transfers.
The House of Representatives also revealed a new bipartisan bill that attempts to revamp the contentious NSA program this week. The main difference between the House bill, co-sponsored by House Intelligence Committee chairman, Representative Mike Rogers (R-MI), and ranking member C. A. Dutch Ruppersberger (D-MD), and Obama’s plan, is the question of judicial review. Under the Obama plan, a judge’s order would be required before the NSA could obtain call records linked to a suspect, and the judicial order would require phone companies to provide the ‘data in a standard technological format and allow the government to obtain the phone records of people up to two calling links, or “hops,” from a suspect, even if they had different providers.’ Under the House bill, on the other hand, FISA “would review the requests afterward, expunging data if it did not meet the standard.”
A classified 2011 NSA report recently revealed by the Associated Press shows the Senate Intelligence Committee considered options to alter the NSA’s bulk collection efforts —in ways that were nearly identical to Obama’s current plan— in closed meetings nearly three years ago. The Committee “considered —but ultimately rejected— alternate ways for the National Security Agency to collect and store massive amounts of Americans’ phone records.”
The Senate Intelligence Committee is expected to vote next week on whether or not to declassify parts of its scathing 6,200-page report on the CIA’s defunct torture program. Sen. Feinstein lambasted the CIA on the Senate floor two weeks ago, accusing the CIA of concealing and deleting documents her committee was reviewing for the report. This accusation prompted the CIA to accuse the Senate committee itself of hacking into the agency’s secure network to view documents it was not allowed access to, even going so far as to file two criminal charge against the committee with the Department of Justice. Senate Majority Leader Harry Reid (D-NV) strongly backed the Senate Intelligence Committee in the dispute, ordering an investigation into the incident, and calling the CIA’s allegations “that Senate committee staff who have no technical training somehow hacked into the CIA’s highly secure classified networks…appears on its face to be patently absurd.”
A recent report by the Project on Government Oversight reveals that a DOD Inspector General employee, Dan Meyer, has been rebuked for making an “unauthorized disclosure” to congressional oversight committees regarding the filming of Zero Dark Thirty, which documented the mission to kill Osama bin Laden. POGO reports that Meyer is being punished specifically for providing congressional oversight committees a DOD IG document critical of CIA director Leon Panetta exposing “highly classified information related to the raid that killed Bin Laden to a producer of the movie Zero Dark Thirty at a June 2011 CIA event.” The move to chastise Meyer is especially hypocritical after the Archive reported the US government’s official refusal to release any documents directly to the public about the raid while simultaneously granting the film’s producers exclusive and unprecedented access to classified CIA and DOD information about the operation.
In other news this week, the number of Americans deemed eligible for security clearances in 2013 exceeded 5.1 million. This is the fourth year in a row the number of Americans deemed eligible for security clearance has increased.
The National Security Archive awarded director of national intelligence, James Clapper, the Rosemary Award for worst open government performance in 2013 this week. Clapper beat out some stiff competition for this year’s award (named after President Nixon’s secretary, Rose Mary Woods, who testified she had erased 18-and-a-half minutes of a crucial Watergate tape) for his “No, sir” lie to Senator Ron Wyden’s question: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper later explained his rationale for lying as it being the “least untruthful” answer possible.
Finally this week, Gavin Baker of the Center for Effective Government alerted the Archive to a proposed rule change that would, in part, clarify procedures regarding former Cabinet level officials and former Presidential appointees’ access to records and information in the custody of the Secretary of Defense and the OSD components. The rules that are currently on the books allowed Secretary of Defense Donald Rumsfeld to use a provision of the President’s Executive Order on Classification to cut in line before FOIA requesters, including the National Security Archive, for access to DOD records created during his tenure. One of the documents Rumsfeld obtained through the provision even directed him to the National Security Archive’s website for one particular document he was seeking.
FRINFORMSUM 3/20/2014: the NSA’s MYSTIC Program Powerful Enough to Swallow a “nation’s telephone program whole,” Judge Calls a DOJ Search Practice “repugnant to the Fourth Amendment,” and Much More.
The National Security Agency (NSA) has built a surveillance program so powerful that it can swallow a “nation’s telephone program whole.” According to documents obtained by former NSA contractor Edward Snowden and reported on by the Washington Post, this program –codenamed MYSTIC– is capable of capturing “100%” of a foreign country’s voice calls. MYSTIC’s retrieval tool, RETRO, also enables “the agency to rewind and review conversations [for] as long as a month after they take place.” The program began in 2009, reached full capacity in 2011, and last year’s secret intelligence budget (also leaked by Snowden) mentioned an effort to add “an additional target” to the MYSTIC program, though it remains unclear if any country has yet to have their data collected in its entirety.
The Inspector General for Intelligence and Special Program Assessments is the Department of Defense component that has oversight responsibilities for the NSA, and it recently reported that it has no plans to investigate the spy agency. Despite ongoing fallout from Snowden’s revelations about the NSA’s surveillance practices, Anthony C Thomas, the deputy IG, said Tuesday that not only were there no plans for an investigation, but that he was “not aware” of the NSA’s bulk phone collection practices until they were disclosed by The Guardian, and that he couldn’t quantify how much oversight his office currently performs on the NSA.
Oversight issues continue to plague the CIA’s relationship with one of its congressional watchdogs, the Senate Intelligence Committee. Committee Chairwoman, Sen. Dianne Feinstein (D-CA), launched a blistering attack against the agency on the Senate floor last week, accusing the CIA of concealing and deleting documents that her committee was reviewing for its still-secret 6,000 page report on the agency’s defunct torture program. After her speech, the CIA filed two criminal referrals with the Department of Justice, alleging it was Senate staff that acted inappropriately by accessing CIA records they were not cleared to view. It’s worth noting that the CIA general counsel who filed the criminal claims on behalf of the agency, Robert Eatinger, is mentioned 1,600 times in the Senate report for, among other things, providing the Department of Justice misleading information about the torture program. The FBI is reported to be investigating both of the CIA’s criminal claims to see if full-scale investigations are required, though DOJ officials have indicated the agency is reluctant to get involved in the increasingly politicized melee.
A federal judge decided last week that the CIA’s common practice of refusing to release soft copies (electronic versions) of its records –ostensibly for security reasons– might be illegal. IT expert Jeffrey Scudder is suing the agency for refusing to release 419 Studies in Intelligence articles in electronic format in response to his FOIA request. Scudder contends that the CIA is frustrating his efforts to obtain the documents –and charging him double for doing so– by claiming the documents may only be released in paper form, even though the documents are already in electronic format. District Court judge Beryl Howell agreed with Scudder, writing that “[w]here, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.” Secrecy News’ Steven Aftergood notes that ‘[i]n view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.’
Elsewhere in the courts, a federal judge called the DOJ’s request for warrants for its overly-broad email searches “repugnant to the Fourth Amendment.” Magistrate Judge John M. Facciola’s comments were delivered in a case about a defense contractor that highlighted the broad authority the agency believes it “has in searching email accounts.” Facciola wrote that “[t]he government continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy email account holders have in their communications,” and irrespective to their relevance to a particular investigation.
The Director of National Intelligence’s general counsel, Robert S. Litt, told the Privacy and Civil Liberties Oversight Board on Wednesday that requiring the NSA to seek court approval for its queries of Americans’ e-mails and phone calls would create an “operational burden” so heavy that it would make the Foreign Intelligence Surveillance Court “extremely unhappy.” Board member Patricia Wald replied, “I suppose the ultimate question for us is whether or not the inconvenience to the agencies or even the unhappiness of the [surveillance] court would be the ultimate criteria.”
FAO Schwarz Jr., the former chief counsel for the Church Committee, which led to the creation of the Senate and House intelligence oversight committees, is now leading calls for a new investigative panel into the CIA and NSA’s surveillance practices. In an open letter addressed to congress and the president, Schwarz wrote that “[m]isleading statements by agency officials to Congress, the courts and the public have undermined public trust in the intelligence community and in the capacity for the branches of government to provide meaningful oversight.”
As this week’s freedom of information news summary and a host of great Sunshine Week reports go to show, the fight to improve open government still has a ways to go. Keep filing those well-constructed FOIA requests, and happy FOIA-ing!
This article was originally posted on the official Sunshine Week website, sponsored by the John S. and James L. Knight Foundation, Bloomberg, The Gridiron Club and Foundation
American Society of News Editors, and Reporters Committee for Freedom of the Press.
Last month, Director of US National Intelligence James Clapper got a lot of people’s attention when he conceded the American people should have been told that the National Security Agency was tracking their calls. “Had we been transparent about this from the outset…we wouldn’t have had the problem we had.” This striking remark exposes another dirty little secret: there are trillions of other improperly classified records that could harmlessly be revealed.
In fact, it’s so easy to classify new secrets that government classifiers joke that they can find the authority to classify a ham sandwich. These secrets tend to be permanent. Just last month, the Department of Defense blacked out a fact students learn in US History 101 – that the Cuban Missile Crisis ended with a swap of Soviet nukes in Cuba for the US nukes in Turkey. There are so many new secrets created, and so few old secrets released, that the runaway US classification regime has become a menace to American democracy.
The most recent available data shows that in 2012 alone, there were more than 95 million decisions to classify US documents. The cost of storing these secrets for just one year well exceeds ten billion dollars. We can’t be certain of the exact figure, however, because the cost that intelligence agencies, including the CIA and NSA, pay to house their secrets is – surprise, surprise – classified.
While the number of government secrets is increasing, the amount of money the government contributes to declassification is shrinking; it’s less than one half of one percent of the total spent on classification. To his credit, President Obama recognized this problem and attempted to fix it. In his Executive Order governing the classification system, the president established a National Declassification Center and ordered it to review and declassify 400 million pages of historic classified documents before the close of 2013. Disappointingly, only 22 percent of these documents have been declassified and made available to the public. The remarkable takeaway is that agencies are able to ignore a presidential order to declassify their documents.
The problem of overclassification is not a cottage complaint from historians deciphering Cold War mysteries. Of all the Edward Snowden revelations, perhaps the most important is that classification is the tool that the executive branch uses to enact policies without public discussion, or consent. According to Representative Jim Sensenbrenner, one of the authors of the Patriot Act, the NSA “ignored restrictions painstakingly crafted by lawmakers and assumed plenary authority never imagined by Congress” by cloaking its actions behind the “thick cloud of secrecy” of the classification system. DNI Clapper, apparently, now agrees.
The NSA’s self-conferred authority to warentlessly collect Americans’ telephone metadata is not a legitimate secret. Though, certainly, there are some. These include: war plans before they are conducted; nuclear design information, and some intelligence sources and methods. The protection of legitimate secrets is undermined when they are contaminated with the misclassification of dubious secrets. We should strive for a small graveyard of legitimate secrets protected by a high, impenetrable fence; not a vast prairie of dubious secrets protected only by pickets.
To begin fixing the classification system and make good on its promise that “no information may remain classified indefinitely,” the Obama administration must double down on the National Declassification Center. With increased authority and efficiency measures, the National Declassification Center has the potential to become the permanent declassification pipeline of former secrets, now expired.
The task of monitoring the classification of current information falls largely to the federal courts and Congress. US courts have recently overturned government secrecy claims about the NSA’s dragnet phone metadata collection program, the government’s refusal to “confirm or deny” its use of drone warfare, and its administration of foreign aid. Continued and expanded judicial review of the government’s secrecy claims will prevent the most egregious secrecy abuses.
Congress must also re-embrace its duty to check executive branch claims of secrecy. To start, intelligence oversight committees must ensure that they are receiving the unvarnished truth during their briefings and testimony, and report much more than they do to the public. Congress’s mandate to oversee the classification system is broader than that, though. It was Senator Mike Gravel, after all, who in 1971 entered the secret Pentagon Papers history of the Vietnam War into the Congressional Record for all to read.
Reacting to leaks, DNI Clapper has recently declassified more than two thousands pages about the NSA’s telephone metadata collection program. He explained, “the harm to national security in these circumstances is outweighed by the public interest.” This was certainly a positive step. There are trillions more to take.