Jose Rodriguez Destroys Key Evidence of CIA Torture Program, then Condemns Senate Report for being “Flawed,” Biased, and Incomplete
Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program, is arguing that it was both effective and authorized, and that the Senate Intelligence Committee report that is highly critical of the program is biased and incorrect. It is, of course, hard to believe Rodriguez’s assertions, much less reconstruct the exact nature of the CIA’s interrogation program, after Rodriguez himself ordered the destruction of key videos documenting it in 2005.
In a recent op-ed for the Washington Post, Rodriguez strongly condemned the Senate Intelligence Committee’s vote to declassify portions of a report critical of the CIA’s torture program, writing “[p]eople might think it is wrong for me to condemn a report I haven’t read. But since the report condemns a program I ran, I think I have justification.” Rodriguez is the same man who 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.” Unsurprisingly, Rodriquez doesn’t mention destroying key evidence of the torture program in his op-ed, but his history of doing so makes it hard to read his article as anything more than another attempt to whitewash evidence of the agency’s wrongdoing.In his op-ed, Rodriguez argues that the torture program was effective, saying, “I know what I saw in real time: a program that provided critical information about the operations and leadership of al-Qaeda.” This assertion is firmly rejected by the Senate report, which accuses the agency of “overstating the significance of plots and prisoners, and taking credit for critical pieces of intelligence that detainees had in fact surrendered before they were subjected to harsh techniques.”
Rodriguez also claims that the program was authorized and “approved at the highest levels of the government, judged legal by the Justice Department and regularly briefed to the leaders of our congressional oversight committees. There was never any effort to mislead the administration or Congress about the program.” The long-awaited Senate report, on the other hand, argues that the CIA concealed “details about the severity of its methods,” and the Washington Post reported that Rodriguez and a colleague “repeatedly sought permission to have the [Zubaydah] tapes destroyed but were denied,” though ultimately destroying them anyway. Rodriguez argues, however, that “[i]t is a travesty that [the CIA’s] efforts at transparency are now branded insufficient and misleading.”
Exactly how the declassification process will work for the portions of the Senate report approved for declassification is unclear, though the CIA, in what Senate Intelligence Committee chairwoman Dianne Feinstein calls a conflict of interest, “is expected to play a major role in approving material for release.” It’s worth mentioning that the Senate report does not recommend any new punishments or further criminal inquiries into the program, that Jose Rodriguez was never charged for his involvement or destruction of evidence, and that to date, John Kiriakou is the only government official who has faced jail time for his role in the torture program –for exposing it, that is.
Today, the National Security Archive had its first meeting with the Department of Justice’s Chief FOIA Officer and Associate Attorney General, Tony West. At the meeting, West said he looked forward to working with the Archive and other open government groups on the US Open Government Partnership’s National Action Plan.
The Archive also said it was looking forward to working with West and the rest of the DOJ Office of Information Policy, but warned of an extreme DOJ “FOIA credibility gap” and of a “poor FOIA track record” at the Department.
The Archive presented West with a memo describing four action items the Department of Justice could do to immediately establish its FOIA bona fides.
April 8, 2014
TO: Tony West, Chief FOIA Officer/Associate Attorney General, US Department of Justice
FR: Tom Blanton/Nate Jones, National Security Archive
Thank you for meeting with Freedom of Information advocates about the Department of Justice’s role in encouraging and overseeing agency implementation of the Freedom of Information Act. Unfortunately, five years after the Attorney General instructed agencies to instill a “presumption of openness” into their FOIA processes, DOJ’s track record leaves much to be desired. We strongly recommend that you implement the following action items:
- Conduct a full FOIA litigation review. The Department of Justice’s “defend everything” litigation stance undermines its commitment to the Freedom of Information Act. The 1993 FOIA litigation review “of the merits of all pending and prospective FOIA litigation cases in accordance with the Department’s new FOIA policy standards” conducted by Attorney General Janet Reno led to the “complete resolution” of more than a dozen FOIA lawsuits. To date, there has been no evidence that the Department of Justice has conducted a similar review since the beginning of the Obama administration. Additionally, despite a pledge from Director of Information Policy Melanie Pustay to provide a list of all FOIA cases that the DOJ has refused to defend to the Senate Judiciary Committee, no such list has been presented to the public.
- Embrace the best practice recommendations for FOIA regulations that have been developed by the Office of Government Information Service and the requester community. The National Action Plan for the Open Government Partnership commits the Obama administration to implement new government-wide FOIA regulations, and apparently DOJ has the lead role in coordinating that process. However, the Department has a serious credibility gap on this issue, since DOJ’s previous efforts at new FOIA regulations met across-the-board criticism and rejection from both Congress and civil society. A good first step would include publishing the draft Department FOIA regulations that apparently are waiting for approval at the Office of Management and Budget, so that we and others can review them. A good second step would be to include the OGIS and requester recommendations in a new draft.
- Support a legislative fix to the b(5) “deliberative process” FOIA exemption, the evocation of which is now at an all-time high, up 44 percent between FY 2011 and 2013 government wide. Agencies have flouted the Attorney General’s March 2009 call for b(5) restraint and discretionary release. Agencies need to know that, contrary to DOJ’s recent Congressional testimony, “attorney work product” and “attorney client information” are subject to discretionary release.
- Produce an updated report on the State Secrets reforms announced by Attorney General Holder in September 2009 but unreported upon since the DOJ’s April 2011 letter to Congress.
Implementing these action items will demonstrate that the Attorney General’s Sunshine Week 2009 pledges were not merely empty words, and that he, the Office of Information Policy, and the Department of Justice are indeed working toward President Obama’s Freedom of Information Act and transparency instructions.
Nelson Mandela was found guilty of sabotage and conspiracy to violently overthrow South Africa’s apartheid government on June 12, 1964, served 27 years in prison, and stayed on the US’ terror watch list until 2008 –including while he was president of South Africa. While the US joined the international community in condemning Mandela’s arrest in 1962, it has long been believed that American intelligence agencies played a key, behind-the-scenes role in the event, and a recent Democracy Now! exclusive with the FBI’s “most prolific” FOIA requester, Ryan Shapiro, adds more to this murky chapter in American history.
US involvement in Mandela’s arrest has been widely suspected after a 1990 Cox News Service report quoted a former U.S. official saying –hours after Mandela’s 1962 arrest– that senior CIA operative, Paul Eckel, told the official, “[w]e have turned Mandela over to the South African security branch. We gave them every detail, what he would be wearing, the time of day, just where he would be. They have picked him up. It is one of our greatest coups.” Despite the report, no US agency has officially admitted to any involvement.
In his interview with Democracy Now’s Amy Goodman, Shapiro discussed his FOIA lawsuit against the NSA, FBI and the Defense Intelligence Agency for their records on any participation in Mandela’s capture. Shapiro, who has a separate case against the CIA for records on Mandela’s arrest, said he filed FOIA requests with the NSA, FBI, and DIA to help determine why the US viewed Mandela as a threat to American security; what role the US intelligence community played in thwarting racial justice in South Africa; and the reasoning for keeping Mandela on the US terror watch list until 2008.
Mind-bogglingly, the NSA glomared (neither confirmed or denied the existence or non-existence of records) Shapiro’s request on the basis that performing a search would compromise both US national security and the Espionage Act of 1917. While discussing the FOIA suit, Shapiro graciously referred to the NSA as a “very difficult nut to crack as far as FOIA is concerned,” further noting that the only times the spy agency “complies with the Freedom of Information Act is when it wants to, which is when the release of records will make the NSA look good.” Which is also not often, it would seem.
In response to Goodman’s question why the Mandela records are so important to him, Shapiro eloquently says, “I want to know why. Nelson Mandela is now almost universally hailed as a tremendous freedom fighter, this heroic figure, and yet the United States actively suppressed his movement, was very likely involved in putting him in prison for decades, and supported both covertly and openly the apartheid state until near its end. Why? And the answer has to do with this blinkered understanding of national security; this myopic understanding that places crass military alliances and corporate profits over human rights and civil liberties. And I’m interested in—I’m interested in highlighting how we as a nation need to foster a broader understanding of national security. And I think by trying to get records on why Nelson Mandela was on the U.S. terror watch list until 2008 is a good opportunity to do that.”
While US involvement in Mandela’s arrest is currently unconfirmed, it is clear that at the time of his arrest U.S. policy towards South Africa was more concerned with preserving access to South Africa’s natural resources than directly confronting apartheid. The Archive will be watching Shapiro’s case very closely in the hopes that judicial review will successfully spur the release of seminal documents on Nelson Mandela’s legacy from these intransigent agencies, and encourage them to more fully uphold their FOIA responsibilities.
FRINFORMSUM 4/3/2014: Senate Intel Committee to Vote on Declassifying Small Portion of Torture Report, WH Considers Releasing Spy Jonathan Pollard, and Much More.
The Senate Intelligence Committee is expected to vote today to release the 400-page executive summary of its scathing 6,300-page report on the CIA’s defunct torture program. The long-awaited report shows the CIA misled the public and its congressional overseers for years regarding the nature of the program, “concealing details about the severity of its methods, overstating the significance of plots and prisoners, and taking credit for critical pieces of intelligence that detainees had in fact surrendered before they were subjected to harsh techniques.” Exactly how the declassification process will work for the executive summary is unclear, though the CIA, in what Steven Aftergood calls a conflict of interest, “is expected to play a major role in approving material for release.” The report does not recommend any new punishments or further criminal inquiries into the program.
The White House is considering releasing Jonathan Pollard, a former Navy intelligence analyst convicted of spying for Israel, to revive the floundering Middle East peace negotiations. Israel has petitioned successive presidents for Pollard’s release (Clinton only dropped the idea after CIA director George Tenet threatened to resign if he did), and the case now appears to be gaining momentum. The move is strongly opposed by the intelligence community, and Aaron David Miller, a vice president at the Woodrow Wilson International Center for Scholars, said, “[i]n an era of leaks and surveillance and Snowden, the idea that the administration is going to trade Jonathan Pollard makes absolutely no sense.” The National Security Archive recently published an Electronic Briefing Book (EBB) on the Pollard case, including a declassified 1987 CIA damage assessment that details the specifics subjects Pollard’s Israeli handlers requested he steal, including documents on Syrian drones and central communications, Egyptian missile programs, and Soviet air defenses.
House Intelligence Committee chairman Mike Rogers announced last week that he will not be seeking re-election. Defense News reports that even though Rep. Mac Thornberry of Texas is next in line for the chair, he will be pursuing the chairmanship of the House Arms Services Committee instead, making Rep. Jeff Miller Rogers’ most likely successor.
General Keith Alexander retired last week as head of the National Security Agency (NSA) and U.S. Cyber Command. He avoided direct mention of Edward Snowden in his retirement speech, even though the former NSA contractor’s leaks about the agency’s dragnet surveillance practices will dominate Alexander’s legacy, and thanked agency employees for “protecting our civil liberties and privacy.” In June 2013 Alexander defended the NSA’s bulk phone records collection program by saying that it had disrupted 54 terrorist activities. During an October 15, 2013, Senate Judiciary Committee hearing, however, Alexander admitted that claim was a lie. Senate Judiciary Chairman, Sen. Patrick Leahy, emphasized the lie, saying “only 13 of the 54 cases were connected to the United States…[and] only one or two suspected plots were identified as a result of bulk phone record collection.”
The NSA’s top civilian, John C. Inglis, who referred to the NSA’s bulk surveillance as an “insurance policy,” also stepped down last week. While discussing Alexander’s legacy, Inglis revealed that “[i]n Iraq, for example, the National Security Agency went from intercepting only about half of enemy signals and taking hours to process them to being able to collect, sort and make available every Iraqi email, text message and phone-location signal in real time.” This is a remarkable comment in part because it reveals that Iraq is the country where MYSTIC –a surveillance program so powerful that it can swallow a “nation’s telephone program whole” – is currently fully operational. It is perhaps even more remarkable, however, because only two weeks ago the NSA asked the Washington Post not to disclose any details of operation MYSTIC “that could be used to identify the country where the system is being employed or other countries where its use was envisioned,” ostensibly for national security reasons. Yet, when it comes time to aggrandize Alexander’s legacy, the disclosure is acceptable.
In declassification news, NARA deserves credit for taking another step forward in placing major State Department document databases and indexes on-line as they are declassified. NARA posted 300,000 State Department telegrams from 1977 — the first year of the Jimmy Carter administration — on its Access to Archival Databases system this week. As Archivist William Burr points out, however, “the collection of telegrams is only a segment of the State Department record for that year; still to be declassified and processed for 1977 is the index to the P-reels, the microfilmed record of the non-telegram paper documentation. Moreover, top secret telegrams are not yet available for any year since 1973 and collections of “Nodis” telegrams from the mid-1970s remain unavailable.” Burr says that NARA’s inadequate funding is an important cause of the delay, and its “austerity budget” is a serious problem. “In real terms (adjusted for inflation), the NARA budget has been declining since FY 2009, despite the agency’s ever-growing responsibility for billions of pages of paper and electronic records. Consistent with the policy of forced austerity, OMB has cut NARA’s budget for the next fiscal year by $10 million.”
Finally this week, to commemorate the 50th anniversary of the U.S.-supported overthrow of Brazilian President Joao Goulart, Peter Kornbluh –director of the Archive’s Brazil Documentation Project– calls for the US government to embrace “declassification diplomacy,” and declassify still-secret U.S. documents on the covert operations that contributed to that dramatic coup d’tat. The Archive also posted newly-released JFK tape transcripts on the plotting of the event to its website to mark the event. According to the transcripts, Robert Kennedy reported to his brother that Goulart struck him as a “wily politician who’s not the smartest man in the world … he figures that he’s got us by the—and that he can play it both ways.” Read all of the documents here.
On the 50th anniversary of the U.S.-supported overthrow of Joao Goulart in Brazil, his son, Joao Vicente, has petitioned the Brazilian Senate to officially request the declassification of still secret U.S. documents on the covert operations that contributed to that dramatic coup d’tat. Given the bilateral tensions in current Brazilian-U.S. relations—generated by a more modern form of US penetration in Brazil’s internal affairs—it seems unlikely that the Obama administration will release such documentation anytime soon.
Yet if there was ever an opportunity to use declassified U.S. historical records as a unique diplomatic tool that time is here, and now.
The U.S. government has, in fact, practiced the art of declassified diplomacy in a number of nations—reviewing and releasing thousands of records stored in the “secure compartmentalized information facilities” (SCIFS) of the CIA, the Defense and State Departments among other national security agencies—as diplomatic gestures, as well as to advance the pursuit of human rights, truth and justice. Like other foreign policy tools—economic aid, trade, and diplomatic support–these historical records can provide a potent contribution to advance U.S. interests in stability and a peaceful and more just global community.
In Ecuador, for example, despite tensions with the populist government of Rafael Correa, the administration of George W. Bush made an important gesture of a special declassification of State Department records to assist the Ecuadoran truth commission. In Chile, after the arrest of General Augusto Pinochet in London, the Clinton administration ordered the review and release of 23,000 secret documents. In a public ceremony at the Biblioteca Nacional in Santiago, the U.S. Ambassador, John O’Leary, turned over dozens of binders filled with declassified CIA, NSC, State and Defense Department records. In Guatemala in 2011, the U.S. Embassy and USAID donated an installation of hi-speed computer terminals in the reading room of the General Archive of Central America in Guatemala City and a special collection of declassified records. The gift, explained U.S. Ambassador Scott McFarland, was intended to provide victims’ families with access to the collection, “Death Squads, Guerrilla War, Covert Operations, and Genocide: Guatemala and the United States, 1954-1999”—compiled by National Security Archive senior analyst Kate Doyle—which contains over 2000 CIA, State and Defense Department documents.
To its credit, since the mid 1970s the U.S. government has been declassifying secret documents on its role in the Brazilian coup, through routine declassification procedures and the U.S. Freedom of Information Act. Even the White House tapes of Presidents Kennedy and Johnson discussing the intricacies of coup plotting, regime change, and military intervention in Brazil with their aides are now available for public scrutiny. From these records we know many of the secret details of “Operation Brother Sam”—the Pentagon’s plan to provide guns, gasoline, and even combat troops if needed, to secure the success of the military coup. “We wouldn’t want the Brazilian military to move until we have everything in place,” states one Top Secret White House memorandum dated March 30, 1964. Nevertheless, the covert actions of CIA agents in Brazil at that time remain deeply classified.
For a proud and independent nation such as Brazil, the imperial arrogance and audacity reflected in these records are offensive, to say the least. But if there is one positive outcome of the significant U.S. involvement in the coup and support for the military regimes that followed over the next twenty-one years it is the detailed historical record left behind. The secret archives of the U.S. government contain thousands of cables, reports, intelligence assessments and memorandums of conversations that can, and will, shed light on the era of repression in Brazil.
One declassified 1973 State Department cable that my office recently provided to the Brazilian National Truth Commission, for example, actually reveals the existence of a military intelligence center in the Sao Paolo district of Osasco where systematic and grotesque violations of human rights abuses took place. One of the torturers from that center bragged to U.S. officials about using the infamous parrot perch torture technique to break the will of prisoners. He also offered a “first hand account” of an execution technique he called “sewing the suspect up…shooting him from head to toes with automatic weapons.” It was “standard procedure,” the U.S. Embassy reported, to kill suspected “terrorists” in São Paolo.
The Brazilian military and intelligence services appear to have disappeared their own dark archives–just as they have disappeared their victims. For that reason, declassified U.S. documents will prove invaluable to the ongoing work of the truth commission in Brazil, as well as to citizens here and in the United States who have a right to know their history, as well as a right to justice. It is a right that remains fundamental to the democratic health of our societies.
Peter Kornbluh directs the Brazil Documentation Project at the National Security Archive, a public interest research center in Washington D.C. that specializes in declassified foreign policy records. This article first appeared in Portuguese in Folha de S.Paulo.
Information commissioners must determine whether migrant killings violated human rights
Judge says right to information is a “human right” that supersedes “disproportional” application of exemption pertaining to legal investigations
In a case that with important ramifications both for access to information and for human rights investigations in Mexico, a federal judge declared last week that the country’s information commissioners can and should determine whether an infamous 2010 massacre of 72 migrants in Tamaulipas state by alleged agents of the Zetas drug cartel might constitute a grave violation of human rights under established international legal norms. If so, plaintiffs argue, the Attorney General of Mexico (PGR) must release an unclassified version of its investigative file on the massacre in accordance with Mexico’s access law, which prohibits the withholding of records relating to grave violations of human rights or humanitarian law.
The commissioners from Mexico’s Federal Institute for Access to Information (IFAI) have until now resisted efforts by civil society groups, led by Article 19 in Mexico, to force the oversight body to make such a determination. In September 2013, IFAI ruled that it “did not have the faculty, capacity, expertise, knowledge, or the personnel to investigate and determine the existences of grave human rights violations or crimes against humanity” with respect to the San Fernando killings (see Article 19 press release). Absent an official determination that the massacre constituted a violation of human rights, IFAI claimed it could not invoke the clause in Article 14 of Mexico’s transparency law that mandates disclosure of otherwise protected documents when they relate to such violations. The commissioners thus rejected the appeal from Article 19, and refused to order PGR to release its investigative files on the San Fernando case (see previous posts on IFAI September 2013 ruling).
Article 19 appealed that decision, and the recent ruling found that IFAI is in fact capable of interpreting the law to determine if the massacre could constitute a grave violation of human rights based on the criteria set by Mexico’s Supreme Court and the Inter-American Human Rights Court (see Article 19 press release). The judge also found that IFAI’s September 2013 decision—that the human rights nature of the case must be determined by another authority before IFAI can rule on the opening of related documents–was itself a violation of citizens’ right to information.
In a remarkable passage from the court’s ruling, the judge found that the PGR’s decision to withhold information pertaining to its “preliminary investigation” of the massacre – a determination that was approved by IFAI – is “disproportional” and “violates the human right of access to information.”
The ruling orders IFAI to take another look at the San Fernando case, to determine if the killings might reasonably constitute grave human rights violations under guidelines clearly defined by the court, and if so, to order the Attorney General to release the public version of its investigative file.
A strategic right to truth campaign
If upheld, the court’s ruling would be an enormous victory for human rights defenders and transparency advocates in Mexico and could have a transformative impact on the efficacy of using the Mexican access law to investigate violations of international human rights norms.
Through Migration Declassified, the National Security Archive continues to support the campaign launched last year by Article 19 and the rest of our partner organizations to promote the right to the truth with respect to the San Fernando case. The case is part of a coordinated campaign, involving transparency activists and migrant rights defenders in the U.S. and Mexico, all working to push back the veil of secrecy surrounding violence against migrants.
Nearly four years later, the federal and state agencies responsible for investigating the case appear unwilling, or incapable, of fully investigating the massacre. Surviving family members of massacre victims were incensed when Mexico’s National Human Rights Commission (CNDH), in its formal report on the case, declined to say whether the acts constituted grave violations of human rights. Family members of the victims, along with the Fundación para la Justicia (FJEDD) have now taken legal action against the CNDH and are challenging the unassailability of the commission’s rulings (see previous post on legal challenge against CNDH). The complaint argues that CNDH, the agency charged with the protection and defense of human rights in Mexico, did not fully investigate the case, did not solicit the views of victims and family members or respect their right to justice, and ultimately failed to determine whether the state was involved in the killings either through omission or direct action.
In consultation with these organizations, Migration Declassified has been engaged in a strategic effort to gain access to official government files with important information on abuses against migrants, and information on the San Fernando massacre is central to this effort. Using access to information laws in both countries, the strategy seeks to push U.S. and Mexican government agencies to disclose classified information essential to the defense of migrant rights on both sides of the border. The scale and the circumstances surrounding the San Fernando massacre, which was followed, the next year, by the discovery of hundreds more bodies in mass graves, makes the case emblematic of the horrors and abuses faced by migrants traveling through Mexico.
The strategy has resulted in the declassification of U.S. diplomatic cables and intelligence reports in support of both of these legal challenges. First published in August 2013, these records reflect U.S. concern that, despite prior knowledge, Mexican authorities did little to prevent cartel-related violence against migrants and deliberately downplayed the state’s responsibility for the massacres in San Fernando (see previous post on U.S. files). One U.S. Embassy Mexico cable sent to Washington just a few months before the massacre observed a state of “near total impunity” for Mexican cartels in the face of compromised security forces. Four years later, a culture of impunity remains.
The declassified U.S. files also provide details on the arrest of San Fernando police officials and suspected Zeta members in the wake of the massacre, including U.S. Drug Enforcement Agency (DEA) files on the arrest of Zeta leaders in April 2011. The DEA documents indicate that U.S. agencies are willing to release information that could be considered sensitive to law enforcement and investigative proceedings, paving the way for Mexico’s Attorney General’s office to release its investigative files on the case.
On the Mexican side, the strategy has produced a set of internal records from Mexico’s National Migration Institute (INM) relating to migrant protection programs implemented in the wake of the San Fernando massacre, including the creation of Migrant Protection Groups in July 2011 for deployment to dangerous migration routes (see INM documents released in FOI case 0411100064213). In one of our more recent cases, IFAI ordered INM to locate records in response to our requests for documents relating to the May 2011 firing of INM officials under allegations of involvement in abuses against migrants (see IFAI Resolution 5361/13, request # 0411100075613).
IFAI now holds the key to unlocking the case files behind a criminal investigation that has failed to produce a single conviction for the most shocking mass murder that Mexico has seen in a generation. Soon after the April 2011 discovery of bodies of the victims in mass graves in San Fernando, the Inter-American Human Rights Commission (IACHR) urged the “State of Mexico to maximize its efforts to ensure that such crimes do not happen again, to determine the victims’ identities, and to investigate, prosecute, and punish the perpetrators and masterminds, whether this is a case involving organized crime or State agents in collusion with organized crime” (see IACHR press release, April 2011). After nearly four years Mexico has failed every one of these tests. It will now be up to IFAI to determine whether the families of the San Fernando victims have the right to know why.
Something troubling happened this Sunshine Week.
At the 16th Annual National Freedom of Information Day at the Newseum’s Knight Conference Center, former White House Office of Information and Regulatory Affairs Administrator Cass Sunstein accepted the prestigious James Madison Award on behalf of the five-member President’s Review Group on Intelligence and Communications Technologies which recommended the end of bulk telephone metadata collection.
Then, Sunstein used his acceptance speech for the James Madison Award –which recognized those who “championed, protected and promoted public access to government information and the public’s right to know”– to invoke the memories of Madison and Thomas Jefferson to argue to a roomful of openness activists that they should support continued government secrecy.
Citing the debate during closed sessions of the Constitutional Convention more than 225 years ago,1 Sunstein appealed for the continued need to protect the “deliberative process.” Government agencies are increasingly citing this same “deliberative process” to trigger a Freedom of Information Act exemption –b(5)– that allows them to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public. This incredibly large cutout is often called the “withhold it because you want to” exemption.
The use of this “withhold it because you want to” exemption has skyrocketed over the past two years of the Obama administration. As a result, transparency advocates, including the National Security Archive, as well as members of House and Senate committees responsible for FOIA have targeted b(5) reform as a vital inclusion to any FOIA bill that passes Congress.
But perhaps I am just getting wound up. Maybe Cass Sunstein was not using the one week that the US celebrates openness to channel a White House message that meaningful reform to the FOIA won’t happen on its watch. Maybe he was using Madison and Jefferson on his own volition to “nudge” us away from attempting pro-transparency reform.
At any rate, as soon as I heard Sunstein’s Madison Award acceptance speech calling for continued (actually, increasing) secrecy, I endeavored to try and make the case why b(5) reform will be the most important FOIA fight over the next few years.
During the Obama administration’s third Sunshine Week, his FOIA point man, Steve Crowley pointed to the falling use of the b(5) exemption as proof that the administration really was working to “figure out where we can disclose information” and cited the b(5) dip as a FOIA success stemming from President Obama’s and Attorney General Holder’s instructions for agencies to operate with ” a presumption in favor of disclosure” with respect to FOIA.
But the Obama administration is certainly not making that argument anymore. According to stats compiled by the Associated Press, b(5) use is at an all time high, used 81,752 times in 2013 (applied to 12 percent of all of 2013′s processed requests) to deny information. This skyrocketing use of exemption b(5) has proven that a legislative fix is needed; the White House has been unable to get agencies to comply with it’s clear instructions on FOIA.
A few glances at the types of information b(5) is used to hide also demonstrates why the exemption needs to be reined in. These head-shaking denials also suggest, sadly, that the United States may have earned its embarrassing ranking of 44th-worst in the Global Right to Information World Wide Index. (The US FOI law falls between the Tunisian and Nigerian FOI laws.) Egregious examples of b(5) withholding include:
- The Department of Justice’s use of b(5) to censor dozens of pages of a candid history of Nazi-hunting (and Nazi-protecting) by the U.S. government to such a self-defeating extent that former officials leaked the entire document to the New York Times, instead of fulfilling a Freedom of Information request. The National Security Archive submitted a FOIA request for the history of the Office of Special Investigations in November 2009, only to be denied by the Justice Department on grounds that the document –although completed in 2006 and never revised since then– was only a draft and was “predecisional” and therefore withholdable under the b(5) exemption to the FOIA. When our appeal met no positive response –despite President Obama’s and Attorney General Holder’s clear guidance on FOIA –the Archive filed suit. Only after the lawsuit was filed did the Justice Department begin to “process” the document for release –which meant the wholesale application of b(5) “white-out” to sections of the document – deleting even the “personal opinions” of Congresswoman Liz Holtzman as she had expressed them in public as well as to the author of the history. Fortunately, a Department of Justice employee leaked a copy of this history to the public. See here to judge for yourself if the sections the DOJ “withheld because it wanted to” were justified.
- The CIA, supported by the Department of Justice, is currently using the b(5) exemption to keep secret its history of the 1961 Bay of Pigs Invasion, arguing that it’s release “could confuse the public.” As Judge for the US Court of Appeals Judith Rogers explained to U.S. Attorney Mitchell P. Zeff, the CIA and DOJ are attempting to “seek ad infinitum protection of drafts” when the FOIA is actually a disclosure statute and exemptions must be narrowly drawn.
- Muckrock’s Shawn Muscrave has reported that The Federal Elections Commission attempted to argue that it’s own guidance on when to apply b(5) is itself exempt from release under b(5) –even though it had already been posted on the FEC’s website. Muckrock has also compiled an extremely useful list of agencies’ b(5) guides.
- A protracted and wholly unnecessary fight over b(5) delayed the release of historic Henry Kissinger notes of telephone conversations, “telcons,” for seven years. In 2007, in response to a FOIA request filed in 2001, the State Department denied over 800 historic telcons on FOIA (b) (5) pre-decisional grounds. Finally, in 2013 the Department of State released a portion of them, including Kissinger’s conversations with government and former officials during the Ford Administration. As interesting as the telcons are, they contain no information that ought to have been withheld. Unquestionably they include candid discussion of issues and personalities and inter-government decision-making generally, but that provides no excuse for agencies to apply the b(5) “pre-decisional” FOIA exemption to federal records produced decades ago.
- The Department of Justice continues to use b(5) to withhold Office of Legal Counsel Opinions –opinions which, essentially, form a body of law that binds all federal agencies– even though the Freedom of Information Act clearly states that “statements of policy and interpretation [an] agency has adopted” must be released. Despite the Obama administration’s proclamations about a presumption of disclosure, The Center for Responsibility and Ethics in Washington’s strong case is currently pending in the US District Court. Recognizing the untenability of its argument, the Obama administration has officially released some OLC memos (such as the Bush-era memo blessing the legality of torture in some instances) and leaked others (such as the memo it leaked to Charlie Savage of the New York Times blessing the assassination of US citizen Anwar Al-Awlaki. No Espionage Act investigation or prosecution, of course.)
- Last year, the Department of State, and the U.S. Agency for International Development argued, ironically, to a federal judge that a Presidential Policy Directive instituting increased aid transparency should be withheld from the public (even though the Administration had released a “fact sheet” largely disclosing what was in the PPD). The Center for Effective Government was forced to file a FOIA lawsuit, which it won.
- Most recently, CIA Director John Brennan’s wrote a document for Senator Dianne Feinstein laying out his reasons for why he believed the Senate Intelligence Committee’s 6,200 page report on the CIA’s torture program should remain classified. To ensure that his reasoning about why the CIA’s torture program should, itself, remain hidden from the public and FOIA, he was careful to make sure the first page had the marking: “Deliberative Process Privileged Document,” signalling to his FOIA shop he wanted it denied under the b(5) exemption.
These are just a few of the most egregious examples of the b(5) “withhold it because you want to” that I could recall. If you have another example, add it in the comments.
B(5) was initially conceived to prevent government employees from “working in a fish bowl,” to allow employees to give each other –and their supervisors– candid advice. These protections should and must remain. But, b(5) was cited 81,752 times last year, certainly not always to protect the flow of government employee ideas and positions. President Obama correctly stated that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors and failures, or because of speculative or abstract fears. But these are precisely the things the b(5) “withhold it because you want” exemption is being used to hide more and more. Agency restraint has not worked. Proclamations from the President and Attorney General have not worked. It is time for a Legislative correction to the Freedom of Information Act.
Openthegovernment.org’s Amy Bennett opened her Senate Judiciary Committee testimony this Sunshine Week by stating that the open government community strongly supports b(5) reform to the Freedom of Information Act. The two-part fix she proposed will preserve the ability for government employees to give candid advice, while preventing the use of b(5) to withhold information that the public should have access to.
“One, Exemption 5 needs a public interest balancing test. If the government were not convinced that the requested documents would advance the public interest, a requester would still have the opportunity to ask a Court to independently weigh the government needs in invoking the privilege against the needs of the requester. Two, there needs to be a time limit. Currently, a President’s records are only protected from release [under the 'P(5) deliberative process' exemption of the Presidential Records Act] for twelve years from the end of that presidency. Surely, we should not accord more secrecy to agency business than we accord the President of the United States.”
Perhaps the best news of this Sunshine Week was that the FOIA Lion of the Senate, Chairman of the Judiciary Committee Patrick Leahy, signaled that he would work to reform b(5). At the same hearing, he said:
“Another impediment to the FOIA process is the growing use of exemptions to withhold information from the public… Federal agencies used FOIA Exemption 5 to withhold information from the public more than 79,000 times in 2012 ─ a 41 percent increase from the previous year. I am concerned that the growing trend towards relying upon FOIA exemptions to withhold large swaths of government information is hindering the public’s right to know.”
Another FOIA champion, Ranking Member Chuck Grassley, also signaled his willingness to continue to cooperate to produce legislation which reforms FOIA. Work between Senate Judiciary Committee Staff and open government groups is underway.
The House has already unanimously passed a FOIA bill co-written by the Chairman of the House Oversight Committee Darrell Issa and Ranking Member Elijah Cummings, which takes a step to stem the overuse of exemption b(5). The House-passed bill codifies that an agencies may only withhold information if it “reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.” Unfortunately, I believe that since agencies are already ignoring the President and Attorney General’s instruction, they will likely also ignore this part of the statute. A b(5) time limit and remedy for judicial review, as Amy Bennett testified, is the best fix.
Miriam Nisbet, Director of the FOIA Ombuds Office, the Office of Government Information Services, also spoke in favor or increased disclosure of information which could technically be withheld under b(5). Speaking at the Collaboration on Government Secrecy’s Freedom of Information Day at American University Washington College of Law. She called b(5) her “favorite exemption” because her Ombuds Office is often successful in getting more information released that agencies initially withheld under b(5).
Meanwhile, the Director of the Office of Information Policy –the other government agency nominally in charge of enforcing FOIA policy– provided confusing and disheartening testimony on b(5) recently. When asked about the startling increase in the invocation of the b(5) exemption DOJ OIP Director Melanie Pustay testified that it was due to an increase in invoking b(5) for “attorney work product and attorney client information, which is not subject to discretionary release like deliberative process is.” (emphasis added.)
However, she is contradicted by her own agency’s guidance circulated after her own Attorney General called for more discretionary releases, which states that both “attorney work product” and “attorney client information” are subject to discretionary release. Likewise, the Department of Justice’s own FOIA guide states (pages 689-690): “The universal considerations to take into account in considering whether to make a discretionary release of information that otherwise could be withheld under the deliberative process privilege are the sensitivity of the record’s contents and the age of the document. Records protected by other Exemption 5 privileges [ed: including "attorney work product" an "attorney client" information] can be the subjects of discretionary release as well.” (Emphasis added.) Such confusion within the DOJ OIP about when the b(5) exemption should be used demonstrates, again, the need for a Legislative fix.I’d like to end Sunshine Week with a bit of good news. There is one other high-ranking backer of b(5) reform. That is Special Advisor to the President John Podesta, brought back into the White house last December. His FOIA bona fides are impressive.
In fact, the first time I ever heard the phrase “withhold it because you want to exemption” was when he coined it, during his Sunshine Week 2011 testimony before the Senate Judiciary Committee calling for reform to b(5) FOIA exemption.
Mr. Podesta, please pass this blog post along to Cass Sunstein, and explain to the White House why opposing b(5) reform is a bad idea.
1. Sunstein did not mention that Congress is not covered by the Freedom of Information Act, so its members can continue to engage in candid speech and debate without threat. He also did not mention that the records of the Constitution Convention were unsealed thirty years after the fact. Meanwhile, the Central Intelligence Agency and Department of Justice are currently arguing in the DC Court of Appeals that the b(5) “deliberative process” exemption should last in perpetuity because the document they are attempting to hide (a draft history of the bungled 1961 Bay of Pigs invasion) has the potential to “confuse the public.”↩