DOJ Defends Spurious Redactions, Questions Remain about Stellarwind, and Much More: FRINFORMSUM 9/11/2014
A FOIA lawsuit over a decades-old FBI memo reveals not only the DOJ’s misuse of court resources and insistence on defending spurious FOIA redactions despite their merit, but also LBJ’s use of the FBI to vet a potential son-in-law, none other than actor George Hamilton. Villanova Law School professor Tuan Samahon filed a FOIA request in 2010 with the FBI seeking a memo Samahon wanted for a book he was writing on Supreme Court Justice Abe Fortas. He initially requested a two-page report by Cartha DeLoach, deputy director of the FBI, that Samahon hoped would reveal what, if any, “role the FBI may have played in the 1969 resignation of Fortas from the highest court after only four years.” The FBI released the 1966 memo with redactions, arguing that full disclosure would reveal embarrassing information about a private citizen. Samahon sued in 2012, arguing that there was no legal reason to withhold the document, with US District Judge Eduardo Robreno agreeing and subsequently ordering the release of the document. While the document did not contain the information Samahon initially sought, it did reveal that both Fortas and the FBI helped LBJ, in what Robreno called a “potentially illegal use of executive power,” dig up dirt on a young George Hamilton, who was dating LBJ’s daughter, Lynda Bird, and who LBJ was paranoid might be gay. “The court battle could have been avoided, [Samahon] said, had the FBI just released the documents and distanced itself from the previous administration.” It would also have been avoided, of course, if the DOJ refused to defend the agency’s dubious redactions in the first place.
Representatives Walter Jones (R-NC) and Stephen Lynch (D-MA), with the support of the Saudi government, are leading a bipartisan effort to declassify 28 pages that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. The Bush administration excised the pages, which detail Saudi involvement in the 9/11 attacks, on the grounds that their disclosure would harm national security. Rep. Jones contends, however, that the pages were withheld not to protect national security, but to hide aspects of the Bush administration’s relationship with the Saudis. According to Thomas Kean, chairman of the 9/11 Commission, the intense focus on the contents of the 28 pages overshadows the more important fact that “a ton of stuff” used for the Commission report, including interviews with Presidents Bill Clinton and George W. Bush, and Vice President Dick Cheney, remains classified. Kean said in an interview with the New Yorker’s Lawrence Wright, “I don’t know of a single thing in our report that should not be public after ten years.”
Matthew Aid recently posted a Government Accountability Office (GAO) report, “Personnel Security Clearances: Additional Guidance and Oversight Needed at DHS and DOD to Ensure Consistent Application of Revocation Process,” to his website. The GAO report found that both DHS and DOD’s implementation of the executive orders regulating security clearance procedures “have resulted in some employees experiencing different protections and processes than other employees,” and that the DOD is unaware how many of its employees currently have security clearances. “As a result, the total number of government employees eligible to access classified information that ODNI reports to Congress likely overstates the number of eligible DOD employees.”
A more fully declassified version of the 2004 Department of Justice Office of Legal Counsel (OLC) memo approving the National Security Agency’s (NSA) Stellarwind surveillance program, “a set of warrantless surveillance and data collection activities that President George W. Bush secretly authorized after the terrorist attacks of Sept. 11, 2001,” has been released. The newer version of the memo (initially disclosed during a FOIA lawsuit) was voluntarily declassified by the Obama administration “in light of the fact that it had declassified the existence of the bulk phone and email data programs last year after leaks” by NSA contractor Edward Snowden. The recently released version of the memo, however, still redacts why the Justice Department determined in 2004 that one aspect of Stellarwind, concerning the bulk collection of American’s emails, was illegal, while the continued collection of bulk phone records was not.
An unclassified five-page September 2, 2014, FBI report, “Cuba Intelligence Targeting of Academia,” asserts, “Cuba’s communist-led intelligence services are aggressively recruiting leftist American academics and university professors as spies and influence agents.” The report emphasizes that Cuba spends significant time “targeting and exploiting” liberal US academia, including “exploiting personal weaknesses and sexual entrapment.” The Washington Free Beacon reports that according to “CI Centre, a think tank, there have been 25 Cuban spies uncovered in the United States since the 1960s, including former CIA officer Philip Agee who defected and worked closely with both Cuban intelligence and the Soviet KGB starting in 1973.” One of the most notorious of the 25 Cuban spies is undoubtedly former DIA analyst Ana Montes, who is currently serving a 25-year prison sentence for spying. Archivist Jeff Richelson recently helped shed new light on the Montes case, successfully seeking the declassification of a 180-page 2005 DOD Inspector General study on her deception.
The DOD recently published its updated proposed FOIA rules in the Federal Register. To the DOD’s credit, the rules codify responding to FOIA requests with a “presumption in favor of disclosure,” and that FOIA responses should be timely. The rules, however, do not mandate that DOD components incorporate Executive Order 13526 section 3.1 (d), requiring agencies disclose “properly classified information” if the public interest outweighs the potential harm to national security (an idea supported by Director of National Intelligence General Counsel Robert Litt), into their declassification decisions. The rules also seem to include an extremely broad interpretation of the b(5) FOIA exemption –including a litany of headshaking examples when the exemption could be used. B(5) withholdings have skyrocketed in recent years to hide everything from a 30 year old history of the Bay of Pigs invasion, to information surrounding deaths due to delays at Veterans Affairs Administration hospitals. The new DOD FOIA rules continue this trend, listing instances when “drafts of final records” may be exempt, “expert advice from external entities” may qualify as “agency” communications and be withheld, and ways “factual” material (which usually cannot be withheld from a FOIA requester) can be denied — including staff papers, after-action reports, and inspection reports — pursuant to the b(5) exemption by DOD employees. The public can comment on these new rules by contacting the DOD’s FOIA Liaison, James Hogan, until November 3, 2014.
David Murphy, who served as the CIA’s Berlin Operations Base chief from 1959 to 1961 and later as the agency’s Soviet Operations chief, recently died at the age of 93. Murphy presided over CIA operations in Berlin in the tense lead-up to the construction of the Berlin Wall, and later co-wrote a book with KGB officer Sergei A. Kondrashev – who handled British double-agent George Blake – and journalist George Bailey on Blake’s revelation to the KGB that British and Americans planned to build a tunnel into the Russian sector that would allow them to tap Soviet communications. According to the book, the KGB’s desire to protect Blake’s cover meant, “the Soviets could do virtually nothing to shield their communications.”
This week’s #tbt document pick concerns another part of Murphy’s career: CIA chief of counter-intelligence’s, James J. Angleton, “molehunt” for Soviet agents within the CIA. Angleton, along with KGB defector Anatoliy Golitsyn, promulgated the concern of a Soviet “Monster Plot” at the CIA, asserting that the Soviets had conducted a “decades-long, massive and successful deception operations against the West, including the use of false defectors and volunteers,” with David Murphy falling under the wide-ranging suspicion. While Murphy was later exonerated and CIA director William Colby forced Angleton out of the agency in 1974, today’s #tbt document pick is the Secret December 2011 Studies in Intelligence article on the effects the “molehunt” had on internal CIA operations and personnel, including David Murphy (page 14).
This article originally appeared in The Brechner Report.
The Tampa Tribune reporter Howard Altman submitted a Freedom of Information Act request to the Department of Veterans Affairs earlier this year to learn the names of hospitals where 19 veterans died due to medical screening delays.
Despite nationwide reports citing the deaths and the high public interest in information on the circumstances surrounding them, the VA denied Altman’s request, citing the b(5) “deliberative process” exemption. The VA argued that the documents Altman was seeking were “preliminary,” and that because “of potential variances in the preliminary data, premature release of this information would inaccurately inform the public concerning this matter.”
The b(5) exemption cited by the VA potentially covers any “inter-agency or intra-agency memorandums or letters” and Congress intended its application to be narrow in scope. Agencies, however, are increasingly citing the b(5) exemption to hide any “draft” or “predecisional” document from the public, leading to the nickname the “withhold it because you want to” exemption.
In addition to hiding potentially embarrassing or illegal activities at the VA, the b(5) exemption has also been used to withhold historically significant documents on the 20-year-old Rwandan genocide; shield a 30-year-old history of the 53-year-old Bay of Pigs invasion from public scrutiny on the spurious grounds that its release could “confuse the public;” hide a report critical of the Department of Justice’s workplace diversity initiatives; and deny access to the DOJ’s Office of Legal Counsel opinions, which form a body of law that binds all federal agencies concerning highly controversial programs, including enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance.
According to statistics compiled by The Associated Press earlier this year, the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government. These numbers confirm that the b(5) exemption is proving to be an increasingly attractive tool for agencies to deny information, despite the fact that this exemption has the highest possibility for discretionary release.
If agencies followed President Obama’s 2009 FOIA memo instructing all agencies “to adopt a presumption in the favor of disclosure,” and Attorney General Holder’s guidance that documents should not be withheld “merely because [an agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” we should be seeing the application of the b(5) exemption a lot less – not more. Sadly, it is clear that the President and Attorney General’s mandates have not motivated intransigent agencies to embrace discretionary releases.
Agencies’ continued misapplication and overuse of the b(5) exemption, despite President Obama’s and Attorney General Holder’s clear directives to the contrary, has prompted a longstanding push by the open government community for a legislative fix to end agencies’ practices of withholding too much information.
These efforts to rein in the b(5) exemption recently culminated in the Senate when Sens. Leahy (D-VT) and Cornyn (R-TX) introduced legislation to fix the b(5) loophole: the FOIA Improvement Act of 2014, which would stipulate, among other improvements, that historical documents (documents created over 25 years ago) cannot be withheld under b(5), and would require agencies to balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents.
The b(5) pre-decisional exemption was initially conceived to prevent government employees from “working in a fish bowl,” and to allow employees to give each other –and their supervisors– candid advice. These protections should and will remain.
President Obama has correctly stated, however, that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors or failures, or because of speculative or abstract fears. Unfortunately, these are precisely the things the b(5) “withhold it because you want to” exemption is being increasingly used to hide, as evidenced so plainly by the obfuscation of strictly factual information surrounding the deaths of 19 veterans waiting for medical treatment.
As Sens. Leahy and Cornyn have realized, the Freedom of Information Act’s b(5) loophole must be legislatively closed to prevent agencies from abusing this exemption to “hide errors or failures,” and to ensure that the principles of open government are fulfilled.
Lauren Harper is a Research Assistant at the National Security Archive focusing on FOIA advocacy and open government, as well as on U.S.-Iraq relations.
Alaskans Trained as “Stay-Behind” Agents in Case of Invasion, DOJ Considers Invoking State Secrets Privilege in Private Defamation Lawsuit, and Much More: FRINFORMSUM 9/5/2014
Government Attic recently posted hundreds of pages of newly-declassified documents on a highly classified project, code-named “Washtub,” detailing US efforts in the 1950s to recruit and train “fishermen, bush pilots, trappers and other private citizens across Alaska for a covert network to feed wartime intelligence to the military.” The documents, released thanks to a FOIA request, reveal the “secret plan was to have citizen-agents in key locations in Alaska ready to hide from the [Soviet] invaders of what was then only a U.S. territory. The citizen-agents would find their way to survival caches of food, cold-weather gear, message-coding material and radios. In hiding they would transmit word of enemy movements.” While the feared invasion never took place, the Air Force Office of Special Investigations trained 89 “stay-behind agents,” all of whom received extensive training in coding and decoding techniques, though it was noted that it was impossible training for the “backwoodsmen to master in 15 hours.” The documents also note that “Eskimo, Indian and Aleut groups in the Territory should be avoided in view of their propensities to drink to excess and their fundamental indifference to constituted governments and political philosophies. It is pointed out that their prime concern is with survival and their allegiance would easily shift to any power in control.”
The Department of Justice (DOJ) is mulling whether or not to invoke the state secrets privilege in a private defamation lawsuit against United Against Nuclear Iran, a group that consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” The group is currently being sued by Greek shipping mogul Victor Restis after the group accused him of violating sanctions by exporting oil from Iran. The DOJ has already fought to shield the group’s files, including its donor list, during the proceedings, and argued earlier this year that “the material in question could be protected under a privilege designed to prevent the public release of law enforcement techniques, confidential sources, undercover operatives and active investigations.” The government has until September 12 to decide if it will invoke the state secrets privilege.
The 2nd US Circuit Court of Appeals heard arguments earlier this week on the constitutionality of the government’s bulk phone records collection program. The case, brought by the American Civil Liberties Union (ACLU), brings the issue of bulk records collection before a federal appeals court for the first time, and concerns whether aspects of the government’s post-9/11 counterterrorism program – specifically the National Security Agency’s (NSA) daily vacuuming up of millions of phone records – violates the Fourth Amendment and Section 215 of the Patriot Act. The government has justified the bulk records collection by citing Section 215, which “requires that records sought be ‘relevant’ to an authorized investigation,” though lawyers for the ACLU have expressed doubt that all of a phone company’s customer call records could possibly be “relevant” to an investigation, arguing instead they are a convenience. The three judge panel also expressed concerns that the same arguments used to justify the collection of bulk phone records could also be applied to credit card and bank records.
The 2nd US Circuit Court of Appeals also ruled this week that photos of Mohammed al-Qahtani, a Saudi national currently being held at Guantanamo who US officials said “intended” to be the 20th 9/11 hijacker, may remain classified. Al-Qahtani was “subject to interrogation techniques that a government official likened to torture,” and the court ruled that the disclosure “of photographs, videos and other audiovisual evidence of his confinement conditions” in response to a FOIA request from the Center for Constitutional Rights “could logically and plausibly harm national security because these images are uniquely susceptible to use by anti-American extremists as propaganda to incite violence against United States interests domestically and abroad.”
President Obama recently appointed the former head of the Federal Communications Commission, Julius Genachowski, to head the president’s intelligence advisory board. “UPS Chairman Scott Davis, former Nuclear Regulatory Commission Chairwoman Shirley Ann Jackson and Neal Wolin, the former No. 2 at the Treasury Department,” were also among the seven new members appointed to the committee, tasked with improving “the way intelligence agencies function, including their organizational structure and compliance with the law.”
Retired Navy Warrant Officer John A. Walker Jr., convicted of leading his family in a Soviet spy ring during the Cold War, died last week at the age of 77. Walker, a cryptologist who “used his high-level security clearance to provide Navy codes, ship locations, and other sensitive data in exchange for cash,” was sentenced to life in prison in 1985. At the time of his conviction, Walker’s leaks were considered “among the largest and most devastating leaks of military secrets in the nation’s history.”
The Office of Government Information Services (OGIS), the federal FOIA ombuds office, has begun posting the comments received by the FOIA Advisory Committee. The Committee, comprised of 10 government officials and 10 non-governmental FOIA experts – including Archive FOIA Coordinator Nate Jones –, is tasked with finding ways to improve the government’s processing of FOIA requests, and solicited comments from the public in order to do so. Two of the posted letters were submitted by Michael Ravnitzky and brought attention to the issues of wage garnishment in FOIA cases with unpaid fees, and outdated information on the FOIA.gov site. A separate letter from the National Security Counselor’s Kel McClanahan concerns the Department of Justice’s “Opportunistic Argument Effect,” in which it takes a position in litigation “not because it has a good faith belief that the position is correct, but because taking the position in that particular case will improve its chances of winning, and perhaps get a piece of favorable case law out of it.” McClanahan’s letter cited Nate Jones’ recent posting on the CIA’s misapplication and retraction of FOIA exemptions once it became apparent the agency “could obtain no further litigation advantage from the argument,” with McClanahan further noting that there are no disincentives for DOJ civil litigators to argue “for any position he pleases, and until there is, we simply cannot trust that DOJ is only making the arguments that the law calls for.”
This week’s #tbt document pick, inspired by McClanahan’s comments to the FOIA Advisory Committee, is the Department of Justice’s March 19, 2009, new FOIA guidelines. The 5-year-old guidance iterates that, among other things, “the Department of Justice will only defend withholdings in court when there is a reasonably foreseeable risk of harm to an interest protected by one of the FOIA exemptions or the law requires the information to be withheld. It states that this policy will be applied to pending litigation ‘if practicable’ and ‘where there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.’” As Kel McChanahan has pointed out, this guidance has yet to be fully embraced.
Costa Rica Investigating US Anti-Cuban Activism, CIA Torture Report, New Iran-Contra Book, and Much More: FRINFORMSUM 8/28/2014
Costa Rica’s director of intelligence, Mariano Figueres, announced that his government will investigate secret US programs that employed Costa Rican citizens in efforts to destabilize the Cuban government. Figueres announced the investigation in response to an August 4, 2014, Associated Press story alleging that USAID employed Costa Rican, Peruvian, and Venezuelan youths to participate in Cuban HIV prevention programs as a cover for US-sponsored anti-Cuban activism. According to interviews, the HIV-prevention ruse was called the “perfect excuse” to recruit political activists.
A recent article in the Washington Times laid out the CIA’s first counter-punch to deflect criticism before the release of Senate Intelligence Committee’s scathing report on the agency’s torture program. In the article, “one of the CIA’s most respected retired officers,” Jose Rodriguez, railed against the Committee for not interviewing agency senior staff involved in the program because “they had their foregone conclusions with what they wanted to say in this report, and they did not want the facts to get in the way.” The irony of Rodriguez accusing the Committee of not looking hard enough for “the truth,” of course, is that Rodriguez authorized the destruction of 92 video recordings of Abu Zubaydah being waterboarded 83 times in one month in a black prison site back in 2005. Rodriguez justified the destruction by writing that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.”
The involvement of Director of National Intelligence General Counsel, Robert S. Litt, in the declassification of the Senate report is adding another layer of controversy to the already contentious declassification process. Before his current position, Litt was a private defense lawyer “who represented several CIA officials in matters relating to the agency’s detention and interrogation program.” While Senate Intelligence Committee chair Senator Dianne Feinstein (D-CA) said she had no concerns about a potential conflict of interest, Senator Mark Udall (D-CO) said he remains “concerned about who continues to lead and drive the [declassification] process.” For our part, the National Security Archive hopes that Litt’s involvement in the declassification process will embody his recent announcement urging classifiers and declassifiers to ask, “not can we classify –but should we?”
An August 25 Intercept article, using documents leaked by former National Security Agency (NSA) contractor Edward Snowden, provided a glimpse of ICREACH, the NSA’s “‘Google-like’ search engine built to share more than 850 billion records about phone calls, emails, cellphone locations, and internet chats.” Planning documents for the search engine list the FBI and Drug Enforcement Agency as “key participants,” and “has been accessible to more than 1,000 analysts at 23 U.S. government agencies that perform intelligence work.” Former NSA chief Gen. Keith Alexander developed the original framework for ICREACH in 2006 (though its roots trace back to the early 1990’s DEA-CIA project CRISSCROSS), and shares data swept up under Regan-era Executive Order 12333. As those who have followed closely know, the USA Freedom Act of 2014 introduced by Senator Leahy (D-VT) would focus on telephone record collection under Section 215 and FISA Court reform, not information vacuumed up by EO 12333.
The Department of Veterans Affairs’ inspector general office released a report confirming that hospital delays and “poor care” led to deaths of numerous veterans in a Phoenix hospital. Earlier this year a Tampa Tribune reporter submitted a FOIA request for the names of other VA hospitals were patients died due to delays, but was denied. VA officials refused to disclose any documents responsive to his request by citing the b(5) “predecisional” FOIA exemption, and stating that the documents were “preliminary” communications and could therefore be withheld. Voicing support – by calling your Senator or writing an op-ed for your local paper, for example – for the FOIA Improvement Act of 2014 would help end the increasing misapplication of the b(5) “withhold it because you want to” exemption, recently used not only to hide wrongdoing at the VA, but also to conceal unflattering Department of Justice diversity studies and histories of the Bay of Pigs invasion, and would go a long way to force agencies to finally adopt President Obama’s mandate to act with a “presumption in favor of disclosure.”
The FBI cancelled plans to award a $500 million sole-source contract to Motorola Solutions in the wake of protests by other contractors. One of Motorola’s competitors, Harris Corporation, filed an official complaint to the Government Accountability Office regarding the no-bid award to Motorola Solutions, specifically complaining that the FBI’s claim that Motorola’s software was proprietary and prevented it from interacting with other systems was untrue. A McClatchy News investigation earlier this year further detailed “how Motorola has dominated the industry for decades, building deep loyalty among law enforcement and firefighting agencies and benefiting from biased contract specifications and other forms of favoritism from contracting officials,” prompting House Democrats to send a letter to the Department of Homeland Security’s inspector general requesting an inquiry into the government’s alleged favoritism towards Motorola; the DHS IG has yet to announce whether an audit or an investigation will be conducted.
World War II’s Manhattan Project to develop the world’s first atomic bomb generated more than 1,500 leak investigations, roughly 200 sabotage cases, and about 100 espionage cases. This information is now available thanks to the Department of Energy’s posting of the most recent declassified volume of the official Manhattan District History; all 36 volumes of the history are now declassified and available online.
The Wilson Center’s Cold War International History Project has posted a fascinating dossier of Stasi documents detailing East German aid to the North Vietnamese security apparatus from 1965 until the end of the Cold War. The 13 documents for this “generally unknown” aspect of Soviet bloc aid to Hanoi are all available here.
The Archive’s deputy director and Iran expert, Malcolm Byrne, is the author of a new book on the Iran-Contra scandal, Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power. Byrne’s latest book “provides fascinating details about US ignorance about Iran, which contributed to the largely botched effort to free US hostages in Lebanon and hindered a possible breakthrough in US-Iran ties 30 years ago.” Byrne utilizes both declassified documents and the private papers of key members of the Reagan administration to paint a picture of an administration knowingly “Trying to dress up executive branch overreach in attractive strategic clothing.”
To celebrate the release of Malcolm Byrne’s latest book, this week’s #tbt document pick is a throwback to a 2011 Archive posting highlighting the ‘top 5’ Iran-Contra historical documents, specifically the Top Secret/Sensitive April 4, 1986, Oliver North Memorandum, “Release of American Hostages in Beirut,” which is the main piece of evidence to survive North’s infamous document “shredding party,” and spells out the plan to use “residuals” from the Iran arms deals to fund the anti-Sandinistas.
The CIA Misapplies FOIA Exemptions to Continue its Covert Attack on Mandatory Declassification Review. And Why it Matters.
On Friday September 23, 2011, the Central Intelligence Agency snuck two pages into the Federal Register –without a notice for public comment. These two pages allowed the CIA –overnight, without informing anyone– to decree that declassification reviews would now cost requesters up to $72 per hour, even if no information is found or released. To even submit a request –again, even if no documents are released– the public would have to agree to pay a minimum of $15.
The Agency made this change to price the public out of submitting Mandatory Declassification Review requests because it wanted to avoid the independent accountability and oversight that the Mandatory Declassification Review process provides. Unlike the Freedom of Information Act, adverse MDR responses are subject to review by the Interagency Security Classification Appeals Panel (ISCAP), which regularly overturns CIA denials. According to the US Information Security Oversight Office, ISCAP officials have overruled agency classification decisions more than 70 percent of the time since 1996. Because the CIA, by all appearances, resents that the public can turn to an independent panel to question and overturn its dubious classification decisions, the Agency is attempting to charge outrageous fees to deter citizens from requesting information. The previous Agency regulations said MDR review fees must mirror FOIA fees, a much fairer and cheaper fee structure.
Fortunately, after thirty-six groups signed on to fight to force the CIA to repeal its regulations (and after Kel McClanahan of National Security Counselors filed a still-ongoing lawsuit showing this secret regulations change was illegal), the CIA “as a courtesy to requesters…has decided not to charge fees under the new [Mandatory Declassification Review] regulation while judicial review of the regulation is pending.”
But the Agency is still abusing Freedom of Information Act to hide its justifications and reasoning for why it chose to change its regulations to attempt to price out requesters and directly contradict the “New Era of Open Government.”
After the National Security Archive learned about the CIA’s unannounced effort to price out citizens from submitting MDR requests, we filed a Freedom of Information Act request for the “emails, memos, position papers, power point presentations, and reports” about the agency’s decision to radically change its MDR fee structure. We filed a FOIA, rather than an MDR, because the documents we requested were not classified, as they did not relate to US National Security. (–Wait for it…)
The Agency responded that an unspecified amount of “material” was located and withheld under an (illegally) unspecified b(3) statute and under the b(5) “withhold it because you want to” predecisional exemption.
ED NOTE: (READ UP ABOUT THE “WITHHOLD IT BECAUSE YOU WANT TO” EXEMPTION RIGHT AWAY AND URGE YOUR SENATOR TO PASS THE FOIA IMPROVEMENT ACT WHICH FIXES IT. THE ACT HAS BIPARTISAN SUPPORT, HAS ALREADY PASSED THE HOUSE, AND HAS A VERY GOOD SHOT AT BECOMING LAW.)
Of course, we appealed. Then, this week we got another bizarre response from the Agency. The Agency stated that litigation about the documents by another party had concluded. Strangely, the Agency also changed the justification it used to withhold the documents from b(3) and b(5) (predecisional) to b(3) and b(1) (National Security)!
The list of titles of the “material” withheld shows none of the documents are classified, and that none could conceivably “cause harm” to US National Security.
The CIA’s pernicious behavior was even more evident when the National Security Archive found the “other party” that was litigating these documents’ release. It was the above-mentioned Kel McClanahan. He passed along the Vaughn Index1 created in response to his litigation.
According to the Vaughn index in McClanahan’s court case, the documents in question were withheld under b(5) and b(3) exemptions. McClanahan told me that the Agency argued vociferously in court that the release of documents on why the Agency changed its MDR fee structure would have a “chilling effect” on Agency morale, and thus must be withheld under “predecisional” exemption 5. An argument that the Agency bizarrely dropped in my case.
McClanahan’s Vaughn index shows that when dealing with him, the agency did not evoke the b(1) National Security exemption. And according to the Vaughn index, only CIA employee names, office locations, and phone numbers needed to be redacted.
In short, the Agency either sloppily applied its exemptions to hide why it changed its MDR fees; arbitrarily applied its exemptions to hide why it changed its MDR fees; or both.
The result is that a policy change that should have been explained and debated in public in the first place was not. And after the public used to last resort of the Freedom of Information Act to attempt to discover what happened, the Agency abused that law to hide its policy change as well.
The Agency’s Information and Privacy Coordinator Michelle Meeks signed the denial letter. She was chosen to sit on the US government’s FOIA Advisory Committee, a committee established to “to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” I planned to ask her about here agency’s new, retrograde declassification fees at the Advisory Committee’s first meeting, but she did not attend.
Likewise, the National Security Archive brought our concerns to the White House, to the Information Security Oversight Office responsible for “the oversight of the Government-wide security classification,” and to the Public Interest Declassification Board established “to promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.” All demurred, unwilling or unable to curtail the CIA’s anti-transparency pivot.
In the end, the lack of oversight that allowed the CIA’s covert attack on Mandatory Declassification Review is endemic of the lack of oversight of the Agency overall. When an agency is allowed to secretly change its processes to price out members of the public who request that previously secret information be declassified, it is no surprise that it is also allowed to ignore requirements to publish budget information, to install email requesting runarounds that would make Joseph Heller sigh, to extrajudicially assassinate Americans oversees (including an innocent sixteen-year-old), to establish black torture sites, to spy of the Senate staffers writing a report on CIA torture, and to then decide, itself, which portions of the Senate report on the CIA’s torture the public should be allowed to see.
If the government officials charged with overseeing the Central Intelligence Agency are unable or unwilling to force easy policy corrections, such as not secretly attempting to price out Declassification Reviews, there is no reason to hope that Agency overseers are capable or willing to prevent the CIA from committing its much more horrendous activities.
1. A Vaughn Index is a list and brief description of withheld documents that a requester can obtain only if he sues in court. An agency is required only to give a document count to requeters who don’t sue (and in this case, the CIA broke the law and did not even provide the National Secruity Archive that).↩
CIA Not Disclosing Unclassified Info to Fed Transparency Site, Snowden Left the NSA “Bread Crumbs” to Help Determine Which Documents He Copied, and More: FRINFORMSUM 8/14/2014
A recent Government Accountability Office (GAO) data transparency report revealed that the CIA is one of four agencies that does not disclose contracting data on its unclassified programs to the federal transparency site, USAspending.gov, although there is no guidance that clearly exempts the agencies from doing so. The CIA in particular refuses to disclose the information on the grounds that its unclassified programs support its classified ones, and that “reporting on the former inexorably leads to insights about the latter.” This reasoning is commonly known as the “mosaic effect,” and is regularly used to deny FOIA requests. The GAO report cautions, “Without clear OMB guidance to define the type of appropriated funds exempt from reporting or how to report information on unclassified awards that raise concerns related to intelligence operations, it is unclear whether justifications from each of the four agencies for not reporting its contracts are appropriate.”
One of 38 documents declassified thanks to an Electronic Privacy Information Center (EPIC) FOIA request reveals a former surveillance court judge’s criticism of a now defunct National Security Agency (NSA) surveillance program. The Wall Street Journal reported that former Foreign Intelligence Surveillance Court (FISC) judge John Bates, who now sits on the United States District Court for the District of Columbia, rebuked “the NSA’s ability to manage its own top-secret electronic surveillance of Internet metadata—a program the NSA scrapped after a 2011 review found it wasn’t fulfilling its mission.” Bates criticized the program, which had trouble collecting the “to” and “from” information from emails, for repeated “long-standing and pervasive violations of the prior [court] orders in this matter,” and chided NSA staff for its “widespread ignorance of the rules.” Bates, however, ultimately reauthorized the program.
A federal judge in California recently ruled that the government does not need to disclose FISC orders on which phone companies the government requests customer records from. The ruling came in response to an Electronic Frontier Foundation (EFF) lawsuit, which argued both that “the government had already declassified hundreds of pages of other documents discussing data collection under the U.S. Patriot Act,” and “statements by people affiliated with the government, including a former member of a technology review panel who said ‘telephone companies like Sprint, Verizon, and AT&T’ were required to turn over records to the NSA, justified the disclosures.” Judge Yvonne Gonzalez Rogers, however, ruled that releasing such information could “provide a roadmap” for those eager to evade surveillance, and that “Official confirmation of the existence of or general information about an intelligence program does not eliminate the dangers to national security of compelling disclosure of the program’s details.”
In a recent Wired interview, former NSA contractor Edward Snowden revealed to the original NSA chronicler James Bamford that he left the NSA “bread crumbs” that could have helped the agency determine which files he copied, and which he merely “touched.” Snowden claims to have done this to show the agency he was acting alone and to help it “minimize the national security risks created by the documents’ public release.” Snowden and his lawyer believe the government’s continued insistence that he copied as many as 1.7 million documents “is a sign that the agency has either purposely inflated the size of his leak or lacks the forensic skills to see the clues he left for its auditors.”
The Washington Post obtained copies of reports indicating both systemic abuse of the US Patent and Trademark Office’s award-winning telework program, and that the Patent Office’s attempt to conceal the damning findings from the Commerce Department Inspector General (IG). The Patent Office employs roughly 8,3000 patent examiners, about half of whom work from home, and began an internal investigation after receiving a whistleblower complaint that many examiners were lying about their hours and receiving bonuses for work they never completed (as experts in their field, patent examiner salaries are near the top of the federal payscale). The Patent Office’s internal investigation determined that oversight for the program was “completely ineffective” and raises “‘fundamental issues’ with the business model of the patent office.” The version of the report provided to the Commerce Department IG, however, was “far less conclusive, saying that managers who were interviewed held ‘inconsistent’ views on whether examiners were gaming the system.”
Harris Corporation has filed an official complaint with the GAO to protest the FBI’s $500 million no-bid award to Motorola Solutions, which controls an estimated 80 per cent of the emergency communications equipment market, to upgrade the bureau’s aging radio network. Harris Corp. specifically complained that the FBI’s claim that Motorola’s software was proprietary and prevented it from interacting with other systems was untrue. Last month House Democrats asked the Department of Homeland Security’s Inspector General to investigate McClatchy’s allegations that “Motorola’s contracting tactics have led state and local governments to squander millions of dollars on the company’s pricey two-way emergency radio systems.”
The Wall Street Journal reported last week that the Defense Intelligence Agency (DIA) is increasingly relying on “open source” information on social media for intelligence gathering. Despite risks of violating Americans’ privacy rights, “For the past 18 months, the U.S. has invested heavily in ways to collect and examine social-media postings on Facebook, Twitter and overseas regional networks as a source of overseas intelligence,” with outgoing DIA chief Lt. Gen. Michael Flynn calling social media a new form of signals intelligence.
Texas Tribune reporter Morgan Smith recently posted a picture on Twitter of a response she received to a FOIA request submitted to the Department of Education. The FOIA request was denied, and re-routed to the Department of Justice’s Office of Information Policy, by the Department’s Dallas Civil Rights Field Office’s “FOIA Denial Officer,” Taylor D. August.
To celebrate his 90th birthday, the National Security Archive and the Memorial Society in Moscow recently posted online an extensive collection of formerly secret Soviet and US documents on human rights legend and distinguished physicist, Yuri Orlov. The newly posted documents include the first English-language translation of his historic 1956 speech at his physics institute in Moscow, his 1976 founding of the Moscow Helsinki Group, and detailed KGB, Communist Party Central Committee, and Politburo documents. Read the entire Yuri Orlov File here.
In honor of Mr. Orlov’s achievements, this week’s #tbt document pick is an English translation of a Top Secret January 5, 1977, memo from then KGB chief (and later General Secretary of the Party) Yuri Andropov to CC CPSU, “On Measures for Stopping Hostile Activities of the So-called Group for Assistance of Implementation of the Helsinki Agreements in the USSR.” Visit the Archive to read more files on the Helsinki Group.
Finally this week, time is short to express your support for the FOIA Improvement Act. Check out our helpful posting on background information on the bill, and the ways you can help.
Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), responding to both federal agencies refusal to embrace President Obama’s mandate to adopt a “presumption in favor of disclosure” and their continued misapplication of the b(5) FOIA exemption, have introduced the FOIA Improvement Act of 2014. The Act will make it easier for everyday Americans to use the FOIA to request and receive documents by fixing the b(5) “withhold it because you want to” FOIA exemption, cementing fairness into the fee system, and strengthening the FOIA ombuds office, the Office of Government Information Services (OGIS). Thanks to the much-needed fixes it introduces, the bill is supported by a broad coalition of open government advocates, including the National Security Archive.
But, for these important reforms to be felt, the FOIA Improvement Act needs the public’s vocal support! Even though the House has already passed a similar bill, it must pass several more hurdles before it can be written into law.
Check out the links below for further information on the bill, and then contact your Senators to encourage them to support it (you can even ask for a meeting during their August recess), write editorials and Letters to the Editor for your local paper, and help ensure the bill’s success.
- Section-by-section analysis of The FOIA Improvement Act, S. 2520
- Redline of FOIA as Amended by S. 2520
- Letter of Support for S. 2520 Signed by More Than 50 Groups
- Recent Abuses of the Predecisional Exemption
- Explanation of S.2520’s Exemption 5 Amendment
- Op-eds in Support of S. 2520
- Jones: Stop the FOIA runaround, Detroit News, Houston Chronicle, Philadelphia Enquirer, Burlington [VT] Times News, Battle Creek [MI] Enquirer, Petersburg [VA] Progress-Index, Corpus Christi Caller Times, Bryan County [GA] News, Jacksonville [IL] Journal-Courier, Nacogdoches [TX] Daily Sentinel, Montgomery [AL] Advertiser, Bradford [VT] Journal Opinion, Deming [NM] Headlight, Price [UT] Sun Advocate, Casper [WY] Star-Tribune, York [PA] Dispatch, Orangeburg [SC] Times and Democrat, Phoenixville News
- Bennett: President Obama Can (and Should) Embrace the FOIA Improvements ActThe Hill
- Our View: Freedom of Information Act needs to be fixed.Glenn Falls [NY] Post-Star