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Reagan-era EO 12333 Comes Under Scrutiny, Authors of 9/11 Commission Report Call for More IC Transparency, and Much More: FRINFORMSUM 7/24/2014

July 24, 2014
EO12333 flow chart provided to the Washington Post by Edward Snowden. (Source: Barton Gellman)

EO12333 flow chart provided to the Washington Post by Edward Snowden. (Source: Barton Gellman)

Under the Reagan-era Executive Order 12333, issued in 1981 to authorize foreign intelligence investigations, certain intelligence practices remain so secret “even from members of Congress, that there is no opportunity for our democracy to change” them. An op-ed in The Washington Post argued that while much of the debate on bulk surveillance practices has focused on Section 215 of the Patriot Act, which allows the government to compel private telecommunication companies to turn over customer data, more attention must be paid to EO 12333, whose “surveillance is conducted without court oversight and with comparatively little Congressional review.” Unlike Section 215, which authorizes the collection of metadata, EO 12333 authorizes collection of the content of communications in addition to metadata. If a US person’s communications are “incidentally” collected during an overseas intelligence investigation, EO 12333 “does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.” None of the surveillance reforms announced earlier this year would affect EO 12333 collection.

Screen Shot 2014-07-24 at 9.17.34 AMThe authors of the 9/11 Commission report have released a new report to mark the 10th anniversary of the initial publication, finding both that cyberattacks and “fragmented congressional oversight” threaten national security. The authors also noted “Platitudes will not persuade” a skeptical public to support Congressional legislation to let private companies work with the government to counter threats in the face of privacy concerns. “Ten years after the Commission closed its doors, scholars and the general public should be given broad access to these documents, absent a compelling national security justification for withholding a given record.”

Politico’s Josh Gerstein posited that, given bipartisan frustration with, among other things, the ongoing revelations about the National Security Agency’s (NSA) surveillance practices and the White House’s failure to notify Congress about the Bowe Bergdahl prisoner exchange, now might be an ideal time for bipartisan support for transparency measures. These measures include the FOIA Improvement Act of 2014, which would close the b(5) “deliberative process” exemption loophole, and a “shield law that would protect journalists from having to testify about their sources in federal court.”

The New York Times reported that the Clinton Library released roughly 1,000 pages of newly released documents, with 13,000 additional documents expected to be released in the coming weeks. Among the newly released pages are draft signing statements prepared by White House lawyers for President Clinton to sign regarding a 2000 anti-leak bill “that would have made any leak of classified information a felony.” Clinton ended up vetoing the bill instead, noting, somewhat unexpectedly, “Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy.”

The House of Representatives approved an amendment to the 2015 Financial Services and General Government Appropriations Act last week that would cut the National Security Council (NSC) budget by a third, or nearly $4.2 million. The sharp cuts are in response to allegations from House Appropriations Committee members that “Over the last few months, we have had several instances in which the National Security staff has mandated that the Department of Defense and other agencies selectively withhold information from congressional oversight committees.”

Last week the Senate Appropriations Committee voted to withhold $175 million from the Defense Appropriations Bill until the Israeli government guarantees US firms a larger share of Iron Dome –Israel’s missile defense system– contracts. The defense system was funded primarily by Department of Defense funds, but the majority of contracts have been awarded to Israeli contracting firms, with US contractors receiving as low “as low as 3 percent” of the funds.

The Senate Appropriations Committee also examined the cost of maintaining the Guantanamo Bay detention facility. The Committee found that the average annual cost to house a detainee at Guantanamo is $2.8 million, compared to the cost of housing a maximum-security inmate with Federal Bureau of Prisons, which is roughly $78,000 a year. The Committee also found that the cost of modifying the prison’s clinic to adequately care for the aging detainees would be around $11 million, and housing for the needed support staff would cost over $100 million.

A coalition of 250 organizations, including government watchdogs and whistleblower lawyers, is urging the Securities and Exchange Commission (SEC) to restrict the use of commercial nondisclosure agreements “that discourage employees from coming forward with allegations of fraud and abuse.” Citing a recent rise in the use of such agreements, the coalition is petitioning the SEC “to amend a key rule to make the use of such agreements a violation of securities law.”

Earth rising behind the moon. (Photo courtesy of NASA, Lewis Research Center)

Earth rising behind the moon. (Photo courtesy of NASA, Lewis Research Center)

To mark the 45th anniversary of Neil Armsrtong’s “one small step” for mankind, becoming the first person to set foot on the moon, the Archive published previously classified government documents on lunar operations. These operations included researching the possibility of conducting nuclear tests in space, using the moon to reflect signals for military or intelligence purposes, and U.S. intelligence analyses of Soviet missions and their intentions to land a man on the moon.

The Archive also published declassified summaries of reports by the once Top Secret Net Evaluation Subcommittee (NESC) -a small and highly secret organization that prepared annual reports analyzing the “net” impact of a U.S.-Soviet nuclear exchange- that revealed the terrible costs of nuclear war this week. One NESC report allegedly prompted JFK to remark, “And we call ourselves the human race.” None of these 50-year old reports have been declassified in their entirety.

This week’s #tbt document pick comes from FOIA Coordinator Nate Jones’ January posting on newly available Stasi notes of meetings between Soviet and East German security heads between 1981 and 1984, which “provide unprecedented details of Operation RYaN, the Soviet intelligence effort to detect and preempt a Western ‘surprise nuclear missile attack,’ that contributed to the risk of nuclear war through miscalculation during the 1983 Able Archer nuclear war scare.” One document in particular stands out given the recent tragedy of the downing of Malaysian Airlines Flight 17: a meeting note that discussed evidence showing the Soviets believed KAL flight 007 –which was shot down by a Soviet jet over the Sea of Japan on September 1, 1983, killing all 269 passengers aboard– was a military, rather than civilian aircraft.  Deputy Chairman of the KGB Vladimir Kryuchkov explained “we were convinced that it was a military aircraft.”

Navy Taking Steps, Including Acknowledging Heavy-Handed and “Too-Comprehensive Application” of Kyl-Lott Review, to Resolve Naval Archive Crisis.

July 18, 2014
The Naval History and Heritage Command in Washington DC.  We would have used a picture of the NHHC logo, but its use is, fittingly, restricted. http://www.navy.mil/submit/display.asp?story_id=81117

The Naval History and Heritage Command in Washington DC. We would have used a picture of the NHHC logo, but its use is, fittingly, restricted. http://www.navy.mil/submit/display.asp?story_id=81117

In April 2012, Unredacted published a blog item about an ongoing crisis at the U.S. Navy’s Naval Heritage and History Command.  The problems were so troubling that the U.S. Navy’s Inspector General produced a highly critical report asserting that the Navy’s history program was “at risk” largely because of serious management problems, inadequate funding and staffing, and environmental threats to unique historical records.   While the problems are far from solved, the Navy leadership took the problems seriously and recently announced that it has made progress in remedying them. Nevertheless, the Navy archives remain closed to public access. Until that problem is solved, the Navy will not have an effective, functional history program.

According to the IG report, released through a FOIA request by the National Security Archive, the Navy’s historical records and artifacts were housed in a precarious environment, and invaluable archival material, including unique microfilm collections, was in danger. The IG also found that the History and Heritage Command’s leadership had not been using due diligence to ensure that naval commands and fleets were creating historical records of their ongoing activities. Moreover, the Navy’s professional historians, archivists, curators, and librarians who work for the history command felt “disenfranchised” because of “their marginalization in decision processes and lack of advancement opportunity.”

A basic part of the problem was that the Navy’s Operational Archives are stored in a 19th century brick structures (buildings 44, 57, and 108) in the middle of the Washington Navy Yard.  Mold threatened some 70 percent of records, not only paper files but also unique microfilms of Navy message traffic.  As part of the program to eliminate environmental threats, the Navy took a draconian step in fall of 2012.  It closed off the archives, along with photo, aviation, and ships histories collections, to all public access while contractors worked on upgrading the buildings and the Navy developed improved and expanded archival storage space nearby.

The Navy also tackled the huge collection of microfilms by purchasing special refrigerators and starting to transfer their content to more stable microfilm format.  Moreover, a major digitization project is under way to catalog the archives down to the file level to create comprehensive finding aids.  All of this required increased funding and staffing levels which the Navy has made available, to its credit.

This researcher and others were startled by the closing but, given the scope of the festering problem, it appears to have been unavoidable.  Preservation was only part of the problem, however.   As the IG report had noted, the archives had a massive backlog of unprocessed collections, not only the microfilm dating back to the 1940s and 50s.  Moreover, the Navy conducted its Kyl-Lott review for records containing Restricted and Formerly Restricted Data in a heavy handed manner, with collections unlikely to have any nuclear secrets closed off for indefinite periods of time, much to the angst of researchers. So that problem needed special scrutiny.

On 21 May 2014, the Navy reported on its remediation progress, the steps it has taken, and the progress it expects to make.  News that the photo, ships, and aviation history units have reopened for two days a week is a positive sign. The digitization work continues as do other preservation efforts.   Moreover, the Navy tacitly acknowledged that it had gone overboard in its implementation of Kyl-Lott: “the Histories and Archives Division … is correcting the too-comprehensive application of the Kyl-Lot standard to all historical records held at NHHC, which dramatically restricts access.” A Navy working group is “developing … review procedures that will identify collections that will not need Kyl-Lott reviews and how to focus on those collections that do.”  Time will tell whether new procedures will make World War II records, Cold War, and post-Cold War records more accessible to researchers.  Still, the Navy should be lauded by its realization that its application of the Kyl-Lott was “too comprehensive;” hopefully it will serve as an example for other agencies.

The staffing and leadership problems cited in the IG report were not directly mentioned but the Navy’s investment in resources and staffing may help with morale.  Reportedly the Navy will put the NHHC under the direction of a high-grade civil servant.  If the Navy selects an individual with a serious commitment to history and deep experience in historical research and writing in and outside of government, that will be a good sign of progress.

At present, the Navy archives, the heart of its historical program, remain closed.  According to the Command’s report, they may reopen this fall, depending on “the pace of the overall building and mold remediation efforts.” Let us hope that the Command can solve this problem expeditiously. Without access to formerly open files, and the declassification of other closed collections, independent historical research on the modern U.S. Navy will continue to be “at risk.”

CIA Station Chief Ordered out of Berlin, DOJ Declining to Investigate CIA Complaints that Senate Staff Hacked into Agency Computers while Completing Contentious Torture Report, and More: FRINFORMSUM 7/17/2014

July 17, 2014
Germany's Chancellor Angela Merkel and President Barack Obama (Reuters / Kevin Lamarque)

Germany’s Chancellor Angela Merkel and President Barack Obama (Reuters / Kevin Lamarque)

Berlin has ordered the CIA chief of station to leave Germany by the end of the week amid a growing espionage scandal, according to German newspapers. The German Foreign Office did not verify a timeline for departure, but did reiterate the German government’s expectation that the intelligence representative leave “promptly.” Chancellor Angela Merkel demanded the station chief’s departure last week after a year-long spying dispute, triggered by revelations that the National Security Agency (NSA) monitored Merkel’s cell phone, culminated with reports that a German intelligence official was spying for the CIA.

Maj. James Weirick, the Marine Corps whistleblower who accused a senior general and his staff of wrongdoing during the trial of Marines implicated in a video depicting US personnel urinating on dead Afghani insurgents, has been transferred. Weirick, who previously served as a staff judge advocate at Quantico with Marine Corps Combat Development Command, filed an inspector general complaint in March of last year accusing Marine Commandant Gen. James F. Amos and some of his senior staff of exerting undue influence and seeking “to manipulate the military justice system to ensure tough punishments against the snipers shown in the video,” namely by removing the three-star general assigned to oversee the cases after learning that the general intended to impose administrative nonjudicial punishment rather than a more serious court-martial.

The Department of Justice declined to investigate the CIA’s allegations that Senate Intelligence Committee staff somehow hacked the agency’s computers while working on a report highly critical of the agency’s detention and interrogation program. The DOJ’s refusal to investigate the CIA allegations seems to affirm Senate Majority Leader Harry Reid’s (D-NV) earlier comments that accusations “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.”

 U.S. President Barack Obama and Uruguay President Jose Mujica Cordano speak to the press before a meeting in the Oval Office of the White House May 12, 2014 in Washington. Brendan Smialowski/AFP/Getty Images

U.S. President Barack Obama and Uruguay President Jose Mujica Cordano speak to the press before a meeting in the Oval Office of the White House May 12, 2014 in Washington. Brendan Smialowski/AFP/Getty Images

A Navy nurse at Guantanamo is refusing to continue force-feeding inmates on hunger strikes and has been reassigned to “alternative duties.” The Department of Defense recently admitted it has video recordings of force-feeding detainees at the same time detainees are accusing the US of manipulating data on inmates’ hunger strikes to keep strike numbers artificially low. A lawyer for one of the striking detainees, Abi Wa’el Dhiab, submitted court filings to preserve the force-feeding tapes. Dhiab is also one of the six-low level detainees being transferred to Uruguay, and the transfer would likely render his lawsuit moot.

House Democrats are asking 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.” Motorola’s public safety division, Motorola Solutions, has controlled an estimated 80 per cent or more of the market for emergency communications equipment for years, and its radios contain proprietary software that prevents Motorola equipment from interacting with other systems.

Russian radar station in Lourdes (File photo)

Russian radar station in Lourdes (File photo)

Russia will regain control of Lourdes Intelligence Center outside of Havana after giving it up in 2001 to satisfy a request from the US. Russia began negotiating with Cuba to regain control of the facility, which was the USSR’s largest electronic intelligence facility and controlled radio and telephone connections over a large territory of the “potential enemy,” several years ago. Russian President Vladimir Putin also signed a law writing off 90 per cent of Cuba’s $32 billion Soviet-era debt to Russia during his visit to Havana last week.

Photo of Lourdes Facility from www.fas.org

Photo of Lourdes Facility from http://www.fas.org

Newly declassified documents obtained by Ryan Shapiro show the FBI monitored Nelson Mandela during the 1990s over a perceived communist threat. The documents show the bureau monitored Mandela’s communications with the African National Congress “and kept a close eye on the anti-apartheid activities of the Communist Party USA.” Mandela remained on the US’ terror watch list, and the ANC remained designated as a US’ terrorist organization, until 2008. Shapiro has FOIA lawsuits against the NSA, FBI and the Defense Intelligence Agency for their records on any participation in Mandela’s 1962 capture, and a separate case against the CIA for records on Mandela’s arrest.

FOIA work from the folks at MuckRock revealed some interesting cafeteria complaints at the CIA, including suspicion that the Pepsi dispenser was in fact dispensing Diet Pepsi, anger with Russian-themed menu items (“Beef stroganoff is more American than Russian”), and frustration with the grumpy demeanor of fast food workers who have “attitude every day.” In other culinary news, the international food service company Sodexo is seeking a master chef for a secure US government facility in Northern Virginia who holds or can obtain a Top Secret security clearance. As Steve Aftergood points out, this is a prime example of the bloated security clearance system, which the Office of Management and Budget reported earlier this year as being too large and needing to be reduced. As Aftergood notes, “Eliminating the TS/SCI clearance requirement for access to the kitchens and dining rooms of government facilities might be a sensible place to start.”

The KGB Archives of Soviet defector Vasiliy Mitrokhin’s are in the process of opening to the public for the first time. While not available online yet, the FBI called these documents, which Mitrokhin initially smuggled out of KGB facilities daily on small scraps of paper hidden in his shoes, “the most complete and extensive intelligence ever received from any source,” and are bound to be a boon to researchers when they become available.

Finally, this week’s #tbt document pick is a great reminder on the need for reform to the b(5) “deliberative process” exemption. The document is a May 18, 1994, State Department memo expressing doubts about the size of the Rwandan death toll and was cited in Samantha Power’s 2003 groundbreaking history A Problem from Hell, based largely on FOIA requests she and other Archive staff filed while at the National Security Archive. Apparently, the Department of State failed to realize in 2007 that the memo had been released years earlier in its entirety and cited in Power’s book, and chose to use the b(5) exemption to withhold the information in the memo from the public, citing the specious claim of the deliberative process. It’s worth noting that Power’s book also cites the intransigence of US agencies at the time, noting the need for “congressional inquiries with the power to subpoena documents and to summon US officials of all ranks in the executive and legislative branches,” as it was nearly impossible to obtain “meaningful disclosure” about the Rwandan genocide through the FOIA process.

Happy FOIA-ing!

 

 

National Security Agency Refuses to Release Documents on Mysterious Death of UN Secretary-General Over 50 Years Ago

July 16, 2014
The NSAs response to our FOIA appeal.

The NSA’s response to our FOIA appeal.

The National Security Agency continues to withhold all portions of two documents about the 1961 death of Secretary-General of the United Nations Dag Hammarskjold in Ndola, Northern Rhodesia – now Zambia.  The Agency continues to withhold this historically significant material despite a FOIA appeal from the National Security Archive that provides specific examples of previously released SIGINT (Signals Intelligence) documents from the 1950s and 1960s and explains why the Agency should not treat fifty-year-old documents as though they were created today. The Agency’s response to the Archive’s appeal merely reiterated the same exemptions and statutes listed in its original August 2013 denial letter.  Its response makes no reference to the evidence provided to the Agency.  The Agency also refused to consider the wide public interest in the United States, the international community, and the United Nations for information about Secretary-General Dag Hammarskjold’s mysterious and tragic death while flying to Ndola to resolve a conflict in the Congo. The Agency has refused to help clarify the historical record.

Top: Gulf of Tonkin Signals Intercepts; Below: Photograph taken from USS Maddox (DD-731) during her engagement with three North Vietnamese motor torpedo boats in the Gulf of Tonkin, 2 August 1964.

Top: Gulf of Tonkin Signals Intercepts; Below: Photograph taken from USS Maddox (DD-731) during her engagement with three North Vietnamese motor torpedo boats in the Gulf of Tonkin, 2 August 1964.

The NSAs response to our FOIA appeal ignored the previous declassification of once tightly-held Vietnam-era SIGINT documents.

The NSAs response to our FOIA appeal ignored the previous declassification of once tightly-held Vietnam-era SIGINT documents.

Previously the Agency has declassified such once-tightly held SIGINT documents as “Vietnam War Cryptologic Activities 1961 – 1975” now on display at the Agency’s National Museum of Cryptology; the Agency’s website, www.nsa.gov contains the 1964 “Gulf of Tonkin Signals Intelligence (SIGINT) Reports and Related Command and Technical Messages”; other documents include a January 1961 intercept Spanish-Speaking Pilot Noted in Czechoslovak Air Activity at Trencin; the U.S. Army Security Agency Annual Historical Summary Fiscal Year 1962 (pp. 50-51 for listening post and CRITICOM system in use at Ashara, Ethiopia); also A History of U.S. Communications Security (The David G. Boak lectures), National Security Agency that includes detailed descriptions of 1940s to 1960s systems. In addition to denying the Archive’s appeal without explanation, the Agency’s FOIA office either came to its conclusion before judging its merits, or unnecessarily delayed its response.  Four weeks before the Agency’s Appeal Authority issued its official denial letter, which was postmarked June 16th, the Agency’s Press Office wrote to a Wall Street Journal reporter stating that all requests for the two documents had been denied and the cases were closed.  Baffled, the National Security Archive can only wonder why we would be the last to learn that our appeal was denied.

As we described in our appeal letter to the Agency, the technology used in 1961 has long since been replaced. The declassifiers at the Agency’s FOIA shop have the discretion to release this information.  Section 3.1 (d) of Executive order 13526 states, “In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified.  When such questions arise, they shall be referred to the agency head or the senior agency official.  That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.” During Sunshine Week 2014, the Director of National Intelligence General Counsel Bob Litt, stated that he has instructed declassifiers to declassify more information using this provision.  He stated that classifiers and declassifiers must now ask: “Not can we classify –but should we?”  The Agency’s FOIA shop and appeals division clearly have not received this message.

Decades-Old Rwandan Genocide Documents Withheld under B(5) FOIA Exemption, Researchers Forced to look Abroad for Transparency

July 10, 2014
Rwandan Patriotic Front (RPF) soldiers in Rwanda, circa September 1994. Photo from personal collection of Prudence Bushnell.

Rwandan Patriotic Front (RPF) soldiers in Rwanda, circa September 1994. Photo from personal collection of Prudence Bushnell.

With contributions by Kristin Scalzo

Twenty years ago at least half a million members of Rwanda’s Tutsi minority, along with tens of thousands of “moderate” Hutus, were slaughtered in the Rwandan genocide, and the world is finally –with the help of newly declassified records– beginning to piece together a fuller account of the role the international community played during the atrocities.

Unfortunately, too little of this decades-old information on the Rwandan genocide is coming from the US government, whose responses to Freedom of Information Act (FOIA) requests for documents on the genocide have been marred by the misapplication and overuse of the b(5) “deliberative process” exemption.

In one instance, pursuant to the b(5) exemption, State Department reviewers redacted sections of a seminal May 18, 1994, State Department memo expressing doubts about the size of the Rwandan death toll . Apparently, the Department of State failed to realize that the memo, in which State Department Intelligence unit head Toby Gati addressed whether or not the US government should use the “G-word” to describe events in Rwanda, had been released years earlier in its entirety.  Instead, the reviewer chose to use the b(5) exemption to withhold the information from the public, citing the specious claim of the deliberative process.

"We believe 500,000 is an exaggerated estimate, but no data is available, if systematic killings began within hours of Habrayimanas death."

“We believe 500,000 is an exaggerated estimate, but no data is available, if systematic killings began within hours of Habyarimana’s death.”

Tutsi Massacre Victims And Refugees

Tutsi Massacre Victims And Refugees

This “G-word” memo was initially recounted in Samantha Power’s 2003 groundbreaking history A Problem from Hell, based largely on FOIA requests she and other Archive staff filed while at the National Security Archive. Power’s book also cites the intransigence of US agencies at the time, noting the need for “congressional inquiries with the power to subpoena documents and to summon US officials of all ranks in the executive and legislative branches,” as it was nearly impossible to obtain “meaningful disclosure” about the Rwandan genocide through the FOIA process.  Power is now the US Ambassador to the United Nations.

In April 2014 the State Department also refused to release portions of a May 14, 1994, document that contained draft Security Council Resolution 918, which was released to the public in 2002. The draft Security Council Resolution increased the number of peacekeepers in Rwanda, was distributed throughout the UN, and was later released in full. But again, the State Department claimed the b(5) exemption, forcing researchers at the National Security Archive and the Center for the Prevention of Genocide of the United States Holocaust Memorial Museum to rely on UN documents, as well as documents from the government of New Zealand, to obtain this 20-year old document with obvious historical importance.

The full 2002 release at right, and the heavily redacted 2014 release on the left.

The full 2002 release at left, and the heavily redacted 2014 release on the right.

Unfortunately, these are far from isolated incidents. The heavy-handed application of the b(5) exemption, which potentially covers all “inter-agency or intra-agency memorandums or letters,” has been used to cover up documents on the US role in the Rwandan genocide (some readily available elsewhere), an embarrassing Department of Justice diversity study, a history of the Bay of Pigs invasion, and deaths due to delays at Veterans Affairs Administration hospitals.

This has led to nicknaming b(5) the “withhold it because you want to” exemption. And agencies’ use of it is skyrocketing. According to statistics compiled by the Associated Press, b(5) use is at an all-time high –used 81,752 times in 2013–, and was applied to 12 percent of all 2013′s processed requests to deny information.

The b(5) exemption has the highest possibility for discretionary release, and, 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 it a lot less – not more.  Sadly, it is clear that agency restraint and even proclamations from the President and Attorney General have not worked.

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 exemption recently culminated in the Senate when Senators Leahy (D-Vt) and Cornyn (R-Tx), two long-time FOIA champions, introduced legislation to fix the b(5) loophole: the FOIA Improvement Act of 2014 would stipulate, among other things, 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” exemption is being increasingly used to hide, as evidenced so plainly in the exemptions used to censor these Rwandan genocide documents. Americans need to know how their government acted during key moments of history, such as Rwanda’s descent into genocide.  Currently the b(5) exemption is frequently used improperly to hide this information.  The FOIA Improvement Act of 2014 is the best solution.

NSA Retaining “Useless” and Highly Personal Information of Ordinary Internet Users, Spying on Prominent American Muslims, CBP’s Internal Affairs Division Under Investigation Yet Again, and Much More: FRINFORMSUM 7/10/2014

July 10, 2014
Snowden did get the FISA data, contrary to Keith Alexander's insistence to the contrary. Photo: EPA

Snowden did get the FISA data, contrary to Keith Alexander’s insistence to the contrary. Photo: EPA

Ordinary internet activity accounts for the overwhelming majority of communications collected and maintained by the National Security Agency (NSA). A recent report by The Washington Post, based on communications leaked by former contractor Edward Snowden, revealed that nine out of 10 communications collected belonged to average American and non-American internet users who were not the targets of investigations. Much of the highly personal communications –including baby pictures and revealing webcam photos– provide little intelligence value and are described as useless, yet are retained under Section 702 of the FISA Amendments. The Post’s findings clearly contradict former NSA head Keith Alexander’s assertions that there was no way Snowden could “touch the FISA data,” and give credence to the argument that “the NSA has been proven incapable of safeguarding” the intelligence it collects, irrespective of its value.

In one 2005 document, intelligence community personnel are instructed how to properly format internal memos to justify FISA surveillance. In the place where the target’s real name would go, the memo offers a fake name as a placeholder: “Mohammed Raghead.”

A July 5, 2005, document instructs intelligence community personnel how to properly format internal memos to justify FISA surveillance. In the place where the target’s real name would go, the memo offers a fake name as a placeholder: “Mohammed Raghead.”

Glenn Greenwald and Murtaza Hussain’s latest Intercept expose reveals that the NSA, along with the FBI, covertly monitors the communications of prominent, upstanding Muslim-Americans under provisions of the FISA intended to target terrorists and foreign spies, ostensibly solely because of their religion. The FISA provision that seemingly codifies the surveillance requires that “the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also ‘are or may be’ engaged in or abetting espionage, sabotage, or terrorism.” In practice, however, the agencies monitored the emails of Nihad Awad, the executive director of the Council on American-Islamic Relations (CAIR), the largest Muslim civil rights organization in the country, Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases, and other civically inclined American Muslims.

Why did the CIA take a chance on a BND employee naive enough to volunteer to spy for Russia via email?

Why did the CIA take a chance on a BND employee naive enough to volunteer to spy for Russia via email?

White House officials are questioning why President Obama was left in the dark about the CIA’s German intelligence informant and his recent arrest, a somewhat baffling omission in the wake of revelations the NSA monitored the private communications of Chancellor Merkel and the resulting state of US-German relations. “A central question, one American official said, is how high the information about the agent went in the C.I.A.’s command — whether it was bottled up at the level of the station chief in Berlin or transmitted to senior officials, including the director, John O. Brennan, who is responsible for briefing the White House.” Of further interest is why the CIA made use of the German intelligence official in the first place, who not only walked into the agency’s Berlin office in 2012 and offered to spy, but also volunteered his spying services to Russia via email.

The internal affairs division of Customs and Border Patrol (CBP) is being investigated again, this time for mishandling the personal information of the agency’s 60,000 employees. Under investigation are defunct CBP programs that shared employees’ Social Security numbers with the FBI and that “automatically scanned the Social Security numbers of all the agency’s employees in a Treasury Department financial records database.” Both programs were part of the agency’s response to the Obama administration’s Insider Threat initiative.

Cause of Action’s latest “FOIA Follies” provides some insight on what qualifies for a (b)(5) “withhold because you want to” FOIA exemption at the IRS, and reinforces Archive FOIA Coordinator Nate Jones’ arguments of how the FOIA Improvement Act of 2014 would address this overused exemption and help ordinary requesters. Cause of Action submitted a FOIA request to the IRS seeking records related to any requests from the President for individual or business tax returns in 2012, after which the IRS released 790 heavily redacted pages. Cause of Action filed suit in 2013 challenging the IRS’ use of exemption (b)(5) to withhold large portions of the records, prompting the IRS to “reconsider” some of its withholdings. The newly-released portions of documents reveal the agency was using the (b)(5) exemption to withhold mundane information contrary to Attorney General Holder’s 2009 guidance that “an agency should not withhold information simply because it may do so legally.”

"Allegations of Torture in Brazil."

“Allegations of Torture in Brazil.”

The Brazilian military regime employed a “sophisticated and elaborate psychophysical duress system” to “intimidate and terrify” suspected leftist militants in the early 1970s, according to a State Department report dated in April 1973 and made public last week. Peter Kornbluh, who directs the National Security Archive’s Brazil Documentation Project, called the document “one of the most detailed reports on torture techniques ever declassified by the U.S. government.” This document, and 42 others, were given to Brazilian President Dilma Rousseff by Vice President Joe Biden and were made available for use by the Brazilian Truth Commission, which is in the final phase of a two-year investigation of human rights atrocities during the military dictatorship which lasted from 1964 to 1985.

The Pentagon and the Justice Department are going after the money made by former Navy Seal Matt Bissonnette from his book on the raid to capture Osama bin Laden, No Easy Day, for failing to submit the book for pre-publication review to avoid disclosing any top secret information about the raid. It’s worth noting that while the government goes after Bissonnette for releasing his book without pre-publication review, both the CIA and DOD provided unprecedented access to Hollywood filmmakers Kathryn Bigelow and Mark Boal for their bin Laden raid blockbuster, Zero Dark Thirty, while simultaneously refusing to release the same information to FOIA requesters

A partially redacted 29-page report recently found low morale at the US government’s Office of Cuba Broadcasting, which is responsible for Radio and TV Marti. “Some of the reasons cited for low morale included the lack of transparency in decision-making, the inability to offer suggestions, and the lack of effective communication. Others were concerned about raising any issues to the inspection team because of fear of retaliation by management.”

Inside the biological weapons factory at Stepnogorsk, Kazakhstan, where the Soviet Union was prepared to make tons of anthrax if the orders came from Moscow [Photo courtesy Andy Weber]

Inside the biological weapons factory at Stepnogorsk, Kazakhstan, where the Soviet Union was prepared to make tons of anthrax if the orders came from Moscow [Photo courtesy Andy Weber]

Finally this week, our #tbt document picks concern Eduard Shevardnadze, the ex-Georgian president and Soviet foreign minster who recently died at the age of 86. The documents themselves comes from a 2010 Archive posting on high-level Soviet officials debates during the final years of the Cold War about covering-up the illicit Soviet biological weapons program in the face of protests from the United States and Great Britain. The documents show that Eduard Shevardnadze, along with defense minister Dmitri Yazov, and the Politburo member overseeing the military-industrial complex, Lev Zaikov, were aware of the concealment and were actively involved in discussing it in the years when Soviet leader Mikhail Gorbachev was advancing his glasnost reforms and attempting to slow the nuclear arms race. Check out the documents here.

Happy FOIA-ing!

Making Maliki and Karzai: How Washington Produced Unhelpful Allies in the Middle East

July 8, 2014
Barack Obama and Nouri al-Maliki (Source: Wikimedia Commons)

Barack Obama and Nouri al-Maliki (Source: Wikimedia Commons)

This post was initially published in the Georgetown Journal of International Affairs

There is an emerging theme in foreign policy circles that America’s allies in the governments of Iraq and Afghanistan are to blame for recent U.S. counterinsurgency failures. If only Washington had better local strategic partners, the argument goes, Afghanistan would not be in perpetual crisis and Sunni militants crusading for the militant group Islamic State in Iraq and Syria (ISIS) would not have been able to overrun shockingly large areas of Iraq. In a superficial sense this is true, but it is not helpful. These accounts miss the fundamental point that figures like Iraqi Prime Minister Nouri al-Maliki and Afghan President Hamid Karzai behave as they have partly in response to incentives created by American military intervention and, as always, their local political realities. Arguing that bumbling allies caused America’s current predicaments in Iraq and Afghanistan does not absolve Washington of blame. Instead, any discussion of either country’s ongoing plight must acknowledge that the United States itself played a role in making these allies such unfortunate strategic partners in the first place.

In part, the current situation is the result of significant incentives the United States has unintentionally created through its lengthy military interventions in the Middle East. All allies have important overlapping interests (otherwise they wouldn’t be allies) as well as important divergent interests (after all, this is international politics). The particular problem with asymmetric alliances, where one partner controls an overwhelming majority of resources, is that the smaller ally—like Maliki’s Iraq and Karzai’s Afghanistan—does not fear for its immediate survival because a much larger power, such as the United States, is committed to its success. With their survival principally guaranteed (an overlapping interest), small allies can then focus on areas of interest that diverge from those of their large allies. Maliki can propagate sectarian policies, and Karzai can extend patronage networks. The United States, meanwhile, continues to focus on thwarting insurgents and terrorists—much to the benefit of Karzai and Maliki, but not requiring much sacrifice on their part.

Interventions are difficult policy problems. While allies naturally have some divergent and some convergent interests, it is quite problematic if their primary security objectives differ. Pakistan made this lesson painful clear to the United States in the process of working “together” in Afghanistan. Mismatched objectives between allies create inefficiencies at best, and stalemate or quagmire at worst. In asymmetric alliances with foreign military interventions, this effect is exacerbated because small allies feel empowered to pursue divergent interests by the security provided by the intervening ally. With their security guaranteed for the moment by a foreign power, actors like Maliki or Karzai instead focus on issues the United States will not take care of on their behalf, such as sectarian interests. Foreign interventions by powerful states provide incentives for local allies to freeload for their own security, and to focus on positions not shared with their allies. Over time, this behavior becomes routine and the sectarian divisions or patronage networks that brought these actors to prominence become institutionalized in government.

As famed political scientist Charles Tilly once observed, “War made the state, and the state made war.” External threats solidify states by creating the opportunity for a central authority to raise both bureaucracies and armies united under a single, national flag. An internal “us” is constructed to oppose an external “them.” But foreign military intervention corrupts this state-making process. Because local groups operate under the assumption that external threats will be largely dealt with by foreign allies, leaders such as Maliki can focus on internal threats. Under this model, war made the state and the state made civil war.

Furthermore, it is important to recall that, from the outset, Maliki and Karzai were attractive to American policymakers because of their ties to critical local groups and elites in their respective countries. Yet, once in office, most American policymakers expected that they would set aside these affiliations in the spirit of inclusiveness or adherence to the rule of law and work to undermine the very groups that brought them to prominence. This, however, does not seem like a reasonable expectation. It rests on the faulty assumption that an individual could rise to political power through one set of rules and networks but subsequently rule through other, non-existent systems that weaken the sources of influence that brought that individual to power. Actors that are good at a particular game will not willingly switch to an unfamiliar one they are likely to lose.

The expectations that Karzai or Maliki would come to power under specific political circumstances and then create a more moderate system according to models proposed by the United States also presupposes that these individuals could effect such a degree of reform. They are figures embedded in large organizations operating inside a society in which competing interests and groups vie for better political positioning. The focus of much of the analysis on Maliki and the current crisis in Iraq laments his lack of willingness to include Sunnis in the political process. This is a fair criticism, but there are undoubtedly capacity issues within the structure of domestic Iraqi politics that limited the feasibility of comprehensive Sunni inclusiveness.

Therefore, American backing indirectly provided Maliki with incentives to act against American interests. This is a structural consequence of U.S. military intervention in the Middle East, and it speaks to the political complexity of military intervention as a diplomatic tool. Maliki and Karzai certainly deserve a good deal of blame for the current instability in both Iraq and Afghanistan, but policymakers and commentators alike cannot ignore the fact that many of the incentives for their bad behavior were created by American foreign policy. Washington itself has produced its most unhelpful allies. In the immediate sense Iraq’s current disaster may be Maliki’s fault, but it is our strategic failure.

 

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