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Presidential Records Act Gets New Teeth

December 9, 2014
Illustrated map of the 13 Presidential Library administered by the National Archives and Records Administration. Photo: George W. Bush Presidential Library and Museum.

Map of the 13 Presidential Library administered by NARA. Photo: George W. Bush Presidential Library and Museum.

The Presidential Records Act has come a long way since George W. Bush’s attempt to eviscerate it in 2001. The Act recently gained teeth that will, among other improvements: establish a process for the publication of presidential records after the president leaves office, making it harder for former executives to block publication of their records by citing executive privilege; forbid executive branch officials from conducting government business over personal email, thereby evading the FOIA; and modernize records management by expanding and clarifying the definition of electronic records.

You want these records? Photo:ThinkProgress

You want these records? Photo:ThinkProgress

On November 1, 2001, President Bush signed Executive Order 13233, giving former presidents, vice presidents, and their heirs the indefinite authority to block the release of White House records. The White House’s intrusion was confounding, considering the infrequency former executives and their designated representatives cite executive privilege to block the release of records. President Clinton has not asserted executive privilege over any of his Presidential records, and neither has George W. Bush. The last time a president did cite executive privilege in an attempt to withhold documents from the public was Ronald Reagan, who cited the privilege to withhold 74 pages that were set to become public in 2001. This singular incident is what prompted President Bush to sign the sweeping EO 13233, allowing his White House Counsel – not the National Archives – to review 68,000 pages of Reagan’s records and decide if the public had the right to read them. The National Security Archive and others filed suit to revoke the order, which was partially won, but the ruling failed to clarify whether former presidents, former vice presidents, and their heirs could indefinitely stop the disclosure of presidential records.

President Obama fully revoked EO 13233 on his first full day in office, permitting only the incumbent president to assert constitutional privileges to withhold information and stating he would hold himself and his own records “to a new standard of openness.”

Ambiguities remained, however, and there was still no system in place for the release of the most historically significant documents, with documents remaining “closed” until a member of the public submitted a FOIA request for them (and even then many hoops remained for requesters to jump through if those documents contained even a modicum of classified material). More importantly, without reform legislation the possibility continued to exist of a future executive reinstating unreasonable barriers to White House records.

The most recent update to the Presidential Records Act, “The Presidential and Federal Records Act Amendments of 2014,” (HR1233) codifies Obama’s improvements, makes it much more difficult for former presidents to block access to their records, and establishes that once the Archivist issues a notification to make presidential records public, both the sitting president and affected former president have just 60 days to review the records, with only one option to extend that period another 30 days.

House passed Rep. Elijah Cummings, pictured above, bill to strengthen access to presidential records this January.

The House passed Rep. Elijah Cummings’, pictured above, bill to strengthen access to presidential records this January.

Introduced in the House on March 18, 2013, by Rep. Elijah Cummings (D-MD) and ultimately signed into law by President Obama on November 26, 2014, HR 1233 improves public access to records by establishing “the procedures the Archivist of the United States will use to make records public.” The procedures include notifying the public, the sitting president, and the president during whose term the records were created that records should be released within 60 days of the Archivist’s notification. HR 1233 imposes a time limit wherein a president may object to the disclosure, and outlines procedures for the Archivist to take if the “President claims a constitutionally-based privilege [“executive privilege”] against disclosure of the record.”

This important change will go a long way to improve the declassification process at presidential libraries, which currently moves at a glacial pace — including a seven year wait for the presidential sign off for the release of 1970s telephone conversations between Secretary of State Henry Kissinger and President Gerald Ford and an ongoing delay in the presidential sign off allowing the declassification of historically significant documents on the 20-year-old Rwandan genocide from the Clinton Library.

Also of importance, HR 1233 “forbids officers and employees of the executive branch from using personal email accounts for government business, unless the employee copies all emails to either the originating officer or employee’s official government email, or to an official government record system to be recorded and archived.”

The Act also:

  • Allows the Archivist to direct and effect the transfer of permanent records of a Federal agency “as soon as practicable and at a time mutually agreed upon by the Archivist and a Federal agency not later than 30 years after the creation or receipt of such records by that agency.” The Archivist could have seized this extraordinary opportunity, for example, to order the transfer of the Panetta Review, the torture tapes ultimately destroyed by the former CIA official in charge of the agency’s defunct torture program, Jose Rodriguez, and the Torture Report itself, to NARA’s custody.
  • Strengthens the Federal Records Act by expanding the definition of Federal records to clearly include electronic records.
  • Confirms that Federal electronic records will be transferred to the National Archives in electronic form.
  • Grants the Archivist of the United States final determination as to what constitutes a federal record.
  • Authorizes the early transfer of permanent electronic federal and Presidential records to the National Archives (legal custody remains with the agency or the President).
  • Empowers the National Archives to safeguard original and classified records from unauthorized removal.

The National Security Archive applauds this amendments’ improvements to public access of White House records, which will help prevent future executives from hiding their records from the public. Rep. Cummings deserves special thanks for this bill’s passage. It’s worth noting that with the passage of these amendments to the Presidential Records Act, the passage of the DATA Act earlier this year, and the ongoing efforts to pass the FOIA Improvement Act of 2014, this congressional session could pass some of the most pro-transparency legislation in history.

To help ensure the success of the FOIA Improvement Act, set to be taken up in the House which already passed complimentary legislation earlier this year thanks to the ongoing, bipartisan efforts of Reps. Elijah Cummings and Darryl Issa, contact House Whip Rep. Kevin McCarthy (R-CA) and Speaker John Boehner (R-OH) to make sure the bill makes it on the House calendar for a vote before the end of session this week.

Senate Passes FOIA Reform. On to House.

December 8, 2014
"Without objection?"

“Without objection?”

Shortly after 5:10 PM today, the Patrick Leahy (D-VT) – John Cornyn (R-TX) FOIA Improvement Act –Senate Bill S 2520– passed through the Senate via unanimous consent (video here at the 5:12 ET) .  It now travels to the House which has already unanimously passed its own Darryl Issa (R-CA) – Elija Cummings (D-MD) companion FOIA.  The two houses have been in communication, and reconciliation of the bills before the Congressional session ends is likely.

The Senate bill was unanimously reported out of the Judiciary Committee with a Manager’s Amendment which removed an Exemption Five balancing test, but kept the remainder of the bill intact. (See here for why the NS Archive still strongly supports the bill and is confident it will now be harder to withhold historic and contemporary documents under Exemption Five.)

Senators Leahy and Cornyn were able to work with their colleagues to overcome several holds and pass the bill through unanimous consent.  No easy feat.  Hats off to these two lions of FOIA.

S. 2520

S. 2520

The final Senate FOIA bill includes:

*A new statutory provision stating that agencies cannot use some exemptions (including Exemption Five) to “withhold information… merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption” or “merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.”

*another provision which precludes agencies from using Exemption Five to withhold documents over 25 years old. This means, for example, that the CIA couldn’t misapply Exemption Five and use it continue to hide a 30-year-old volume of the agency’s draft “official history” of the Bay of Pigs debacle.

*Requires that no later than 180 days after the bill becomes law agencies must update their Freedom of Information Act regulations to reflect the law, including the requirement that requesters are alerted of the FOIA Ombuds Office, the Office of Government Information Services.  Earlier this year a National Security Archive audit found that almost half of all federal agencies had regulations that were out of date.

*Fixes a fee fix from 2007 that some agencies had established a loophole to avoid.  Now, if an agency goes over its deadline for processing requests it can not charge search fees, unless the request is larger than 50,000 pages.  Requesters can now receive documents in electronic format, when requested.

*The Office of Government Information Services gained further independence.  The bill now states OGIS “shall not be required to obtain the prior approval, comment, or review of any officer or agency of the united states, including the Department of Justice, the Archivist of the United States, or the Office of Management and Budget” before submitting reports, testimony, recommendations, or comments.

*A requirement that agencies report the number of FOIAed records made available on agencies’ websites.  (The National Security Archive argues almost all records should be.)

*Required Government Accountability Office reporting on use (and possible abuse) of Exemptions Three and Five. (This was actually a sweetener added by the Manager’s Amendment.)

*A study on how agencies can effectively reduce their FOIA backlogs.

*Codification of the job requirements of each agency’s Chief FOIA Officer.

*The Establishment of a Chief FOIA Officer’s Council charged with: developing recommendations for increasing FOIA compliance, disseminating information on FOIA best practices, developing FOIA performance measures, and consulting regularly with members of the public.

*And (potentially a big one) the creation of “a consolidated online request portal” that allows FOIA requests to “any agency from a single website.”  Moreover, the Office of Management and Budget is now required to ensure that agencies’ FOIA processing software is inter-operable with the portal.

The next step for the FOIA improvement Act is a vote in the House.  The bill is not yet scheduled for a vote.  Contact Speaker of the House John Boehner and House Majority Leader Kevin McCarthy to allow the House to vote to pass this legislation.  Finally, it will arrive at the president’s desk.

——–

Here is Senator Leahy’s press release, section by section analysis, and floor statement.

Here is Open the Government’s press release.  And a special thank you to Amy Bennett who herded open government advocates, staffers, Representatives, and Senators for two years working on the bill.  She will soon begin working for the Office of Government Information Services where FOIA requesters and processors will be lucky to utilize her indefatigable efforts.

Here is the committee report.  (H/T freedominfo.org)

More updates as they come.  On to the House (again)!

 

Why Senator Rockefeller Will Lift his Hold on the FOIA Improvement Act

December 7, 2014
******

Let’s “embrace our opportunity to lead, to listen, to dig in, to bridge differences, to govern — to truly make a difference.”

Despite 410 House votes for and none against, unanimous passage out of the Senate Judiciary Committee, and the support of 99 other senators, the office of Senator Jay Rockefeller (D-WV) has placed a hold on the FOIA Improvement Act.  If passed, the Act would limit the oft-abused “predecisional” exemption Five,  increase the independence of the Freedom of Information Act Ombuds office (Senator Chuck Grassley once threatened to drive his car to the Office of Management and Budget to force the release of a blocked FOIA Ombuds recommendations), force agencies to update their FOIA regulations to comply with the law, establish a council of Chief FOIA Officers, and more.

When open government advocates first heard of the last minute hold placed on the FOIA bill by Rockefeller’s office, we were surprised.   Other Senators (some still unreported) had placed holds, but relayed their concerns to the office of Senator Leahy, which smoothed out possible misunderstandings, and secured their support.  Rockefeller’s office, on the other hand, was largely incommunicado.  Despite Senator Reid and Leahy’s call the Senate to pass the bill on Thursday night, Rockefeller’s office maintained radio silence.  His twitter feed began to explode, not with congratulations for his thirty years of service, but with questions over why his last act was blocking such important, bipartisan legislation that would benefit the public.

While disappointing, Senator Rockefeller’s inaccessibility and inability to resolve his hold on the FOIA Improvement Act may be explainable.  Earlier on Thursday,  he gave his final floor speech in the Senate ( urging the Senate to “embrace our opportunity to lead, to listen, to dig in, to bridge differences, to govern – to truly make a difference.”)  His staff watched, and then celebrated thirty years of public service with the Senator and his wife, likely unaware of the controversy the hold had generated.

Still, his hold stirred a storm.  “Jay Rockefeller placed a hold on the FOIA bill?!” is the confused response I’ve heard several times these few days.  The irony is that Rockefeller’s abrupt, ill-considered hold has distracted from celebrating his protection of Americans, and instead has muddied the end of his legacy.

The confusion grew throughout the day Friday.  Senate Majority Leader Harry Reid (D-NV) and legislation cosponsor Patrick Leahy (D-VT) called for a vote on Monday to ensure the bipartisan bicameral bill would not be abandoned when the session ended.  However, Rockefeller’s office continued to maintain its silence… That is, until it issued a four-sentence Facebook press release at 6:56 PM on a Friday afternoon.  (I must note, it’s extremely heartening to read the comments on this post urging the Senate to pass the bill.  My rough count has them at over ten to one in favor of the bill’s passage.)

If Rockefeller’s office had discussed its concerns with Senator Leahy’s staff –as several other offices had done– much controversy could have been avoided.  Rockefeller’s concerns include the potential “unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses. According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct.”

Fortunately, the drafters of these twin House and Senate FOIA bills, working for the past two years, also care deeply about protecting consumers from financial fraud and other abuses.  The anonymous “experts across the federal government” that the statement dubiously cites are dead wrong.

According to Toby McIntosh at Freedominfo.org one agency encouraging Rockefeller to obstruct the FOIA bill is the Federal Trade Commission.  The "What's New" section of the FTC's FOIA page lists a 2005 George W. Bush Executive Order.  Perhaps the FTC is not the best agency to consult on FOIA issues.

According to Toby McIntosh at Freedominfo.org one agency encouraging Rockefeller to obstruct the FOIA bill is the Federal Trade Commission. The “What’s New” section of the FTC’s FOIA page lists a 2005 George W. Bush Executive Order. Perhaps the FTC is not the best agency to consult on FOIA issues.

As Amy Bennett at Open the Government explains crystal-clearly:

Senator Rockefeller is expressing a concern raised by the FTC that under the bill, information protected by attorney client privilege and deliberative process could lose its protection.  This fear is completely unfounded. Courts have long recognized the importance of protecting agency information created during a deliberative process, including that protected by attorney client privilege and attorney work product. This bill does nothing to alter that long standing protection before the 25 year mark.

This bill would require agencies, when using a discretionary exemption, to find a foreseeable harm if the information is released. Agencies have been required to use this standard since 2009 when Attorney General Holder issued a memo requiring it. Agencies also used this same standard during President Clinton’s term.  It was only during President George W. Bush’s term of secrecy that this standard was rolled back.

Sen. Rockefeller also expressed concern that the changes “would potentially give defendants new ways to obstruct and delay investigations into their conduct.”  There is nothing in this legislation that provides defendants ways to obstruct or delay investigations.

Senator Rockefeller also wrote that “I hope there is a way to address these concerns and pass the bill.”  There is.   I’m certain that when Senator Leahy is able to sit down with Senator Rockefeller over a beer and pepperoni roll and explain that the bill was carefully crafted not to undercut current oversight or to allow for the impediment of investigations, the Senior Senator from West Virginia will walk away enthusiastically supporting the bill.

There is also, of course, the option of including report language clearly stating that no information properly protected by attorney client privilege and deliberative process will lose its protection.  Old FOIA pros have told me that similar reporting language was successfully included in previous bills to secure passage.

Ultimately, Senator Rockefeller’s three decades of championing citizens over powerful interests, forging Senatorial consensus, and previous support of the Freedom of Information Act have convinced me that after thoroughly analyzing the amended bill –and speaking with Senator Leahy to ensure his concerns over unintended consequences are addressed– that the Senator will lift his hold and add one final moral and legislative win to his already impressive legacy.

But time is short.  Senator Leahy has stated that if the bill does not pass the Senate by Monday, it will die.  Senator Rockefeller knows all too well that this is not a viable option.  As the senator so wisely said in his farewell address:

“Important undertakings can’t be half-hearted. You have to commit with your whole self — almost like pushing a heavy rock uphill. With both of your hands, you push because if you let up for a split second, you and the rock are thrown backwards into the abyss.”

——-

To voice your support for the FOIA bill, and urge to Senator Rockefeller to cement his legacy, call 304.347.5372

 

Only One Hold Remains on FOIA Bill, Senators Call on NARA to Refuse CIA’s Request to Destroy Email Records, and Much More: FRINFORMSUM 12/4/2014

December 4, 2014
B(5) Used to prevent releasing embarrassing information? Not under the FOIA Improvement Act. http://nsarchive.wordpress.com/2011/05/13/document-friday-the-department-of-state-was-hiding-this/

B(5) Used to prevent releasing embarrassing information? Not under the FOIA Improvement Act. http://nsarchive.wordpress.com/2011/05/13/document-friday-the-department-of-state-was-hiding-this/

After one Senator’s hold is lifted (ed note: as we publish this it appears there is only one hold remaining on the bill), the Senate is expected to vote on the FOIA Improvement Act, perhaps as early as today.  The bill will greatly help the Archive pry loose historically significant documents from the government going forward.  Recently the Senate Judiciary Committee unanimously passed the bill’s Manager’s Amendment, which maintains the bill’s most important reforms and includes a new statutory provision stating that agencies cannot use Exemption Five to “withhold information… merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption” or “merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.” The bill also precludes agencies from using Exemption Five to withhold documents over 25 years old. These fixes would mean that, if the bill becomes law, the CIA couldn’t misapply Exemption Five to continue to hide a 30-year-old volume of the agency’s draft “official history” of the Bay of Pigs debacle, that the exemption couldn’t be used to withhold historically significant documents on the 20-year-old Rwandan genocide, and that the DOJ would have a harder time hiding its Office of Legal Counsel opinions – including those concerning enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance – behind this exemption.

If the bill passes the Senate floor vote, the next step is conference with the House. Given the House’s unanimous vote in favor of FOIA reform this May, the chances of conference seem high. Senate Judiciary chairman Sen. Leahy (D-VT), ranking member Sen. Grassley (R-IA), Sen. Cornyn (R-TX), and Reps. Issa (R-CA) and Cummings (D-MD), are all to be applauded for working together in one of the last bastions of bipartisanship to push through this important FOIA legislation.

Pretty sure the Senators had Jose A. Rodriguez Jr., the former head of the CIA’s National Clandestine Service that  ordered the destruction of key videos documenting CIA torture in 2005, in mind.

Pretty sure the senators had Jose A. Rodriguez Jr., the former head of the CIA’s National Clandestine Service that ordered the destruction of key videos documenting CIA torture in 2005, in mind.

Senators Leahy and Cornyn also recently wrote the Archivist of the National Archives and Records Administration (NARA), David Ferriero, urging him to reject the CIA’s proposal to destroy its email records. The senators noted that the CIA’s plan should raise a red flag considering “We [] know that CIA personnel have in some instances deliberately destroyed records or other materials, suggesting that the National Archives must be particularly cautious in approving any policy permitting permanent destruction of CIA records.” A NARA official tentatively approved the CIA’s plan this August, but NARA has since announced it will “reassess” the CIA’s proposal in light of the criticism the request has received.

The Office of the Director of National Intelligence (ODNI) announced the establishment of the National Counterintelligence and Security Center this week. The new center will combine government security programs (like issuing security clearances and conducting background checks) with counterintelligence. The Office of the National Counterintelligence Executive currently oversees counterintelligence efforts, and former National Intelligence Executive Michelle Van Cleave argues, “adding the security mission to counterintelligence programs will dilute spy-catching efforts.” ODNI counters, however, that the new center will improve efficiency and is in line with the office’s other efforts to “establish intelligence centers, such as the National Counterproliferation Center and the National Counterterrorism Center.”

Steven Aftergood reported this week the new Defense Department “Detainee Operations” publication (Joint Publication 3-13) has replaced the term “unlawful enemy combatants” with “unprivileged enemy belligerents.” Other changes include adopting “Article 75 of the First Additional Protocol to the Geneva Conventions which provide minimum standards for humane treatment of detained persons. It also presents expanded discussion of biometric capabilities that are applicable to detainees.”

Aftergood also revealed this week that the number of invention secrecy orders, an order imposed if it is deemed the disclosure of a patent application would be “detrimental to the national security” and prevents the awarding of a patent and orders the invention be kept secret, has reached a 20-year high. According to the Patent and Trademark Office, by the end of FY2014 there were 5,520 secrecy orders in effect, and “It is unclear whether this reflects growing innovation in sensitive technology areas, or a more restrictive approach to disclosure by government agencies.”

Ashton Carter is said to be Obama's next pick for defense secretary, though the White House has yet to confirm it. Michael Reynolds/European Pressphoto Agency

Ashton Carter is said to be Obama’s next pick for defense secretary, though the White House has yet to confirm it. Michael Reynolds/European Pressphoto Agency

According to The New York Times, President Obama has picked Ashton Carter, former deputy defense secretary and chief weapons buyer for the Pentagon, to be his administration’s fourth secretary of defense, and a formal announcement is expected in the coming days. Defense Secretary Chuck Hagel resigned last week following tension over transferring Guantanamo detainees and a dispute with National Security Advisor Susan Rice over Syria policy. The Times notes Carter “is the only one of several top prospects who did not take himself out of the running for the job.” The Associated Press (AP) further reported that Obama’s choices for Hagel’s replacement have been limited, in part because of complaints of Obama’s attempts to micromanage Pentagon decisions. The AP noted “Within hours [of Hagel’s announcement], former Pentagon official Michele Flournoy called Obama to take herself out of consideration, even though she was widely seen as his top choice and would have been the first woman to hold the post.”

The Justice Department has provided a Chinese firm thousands of pages of previously secret documents concerning the government’s refusal to sell the company several Oregon wind farms over national security concerns. The DOJ made the documents available after Federal Judge Amy Berman Jackson for the D.C. Circuit ordered the Obama administration and the multi-agency Committee on Foreign Investment in the United States (CFIUS), which is responsible for vetting foreign companies’ purchase of American ones, to explain why it denied the Chinese firm’s bid to purchase the wind farms. This marks the first time the government has provided a foreign corporation documents concerning the CFIUS’ deliberations.

This week’s #tbt document pick is chosen with the recent revelations of convicted spy Jonathan Pollard’s Israeli handler in mind. Former Mossad agent Rafi Eitan told an Israeli news program that Pollard had bungled a pre-arranged escape plan that would have delivered him safely to Israel when he diverted from the plan and went to the Israeli Embassy in Washington, D.C. seeking asylum, at which point Eitan ordered the embassy to kick Pollard out in an attempt to avoid further complications. This week’s #tbt pick comes from an Archive Electronic Briefing Book (EBB) on the Pollard case, and is the declassified 1987 CIA damage assessment of Pollard’s spying. The CIA assessment notes the specific subjects Pollard’s Israeli handlers wanted information on – “primarily for nuclear, military and technical information on the Arab states, Pakistan, and the Soviet Union  not on the United States.” Note that the CIA assessment picked is the version released in 2012 by the Interagency Security Classification Appeals Panel (ISCAP), not the 2006 CIA release that is considerably more excised.

2006 CIA release on the left, ISCAP 2012 release on the right.

2006 CIA release on the left, 2012 ISCAP release on the right.

Happy FOIA-ing!

CIA Loses Over Three Weeks Worth of FOIA Requests, Senate’s CIA Torture Report Excludes Interviews with those Subjected to Most Brutal Treatment, and More: FRINFORMSUM 11/26/2014

November 26, 2014

resub

If you made any FOIA requests to the CIA using their electronic submission portal between October 14 and November 6, you’re going to need to resend them. Buried in the CIA’s Electronic Reading Room is a notice that it lost over three weeks of requests: “Our eFOIA request form is now working. However, electronic submissions made in the past few weeks did not reach the office of the Information and Privacy Coordinator. Therefore, if you made an online request between 14 October and 6 November requests will have to be re-submitted.”

A recent Government Accountability Office (GAO) report found that Custom and Border Protection (CBP) forgot about 12,000 FOIA requests from 2012. Apparently after the agency’s reorganization, “a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system.” The CBP reported it processed the thousands of requests after they were discovered. The GAO report also criticized CBP for improperly closing 11,000 requests in 2012 and subsequently having to re-open and re-process them.

Khalid Sheikh Mohammed, waterboarded 183 times and not interviewed by Senate investigators for their CIA torture report. Photograph: AP

Khalid Sheikh Mohammed, waterboarded 183 times and not interviewed by Senate investigators for their CIA torture report. Photograph: AP

The Senate report on the CIA’s torture program, which cost $40 million and took five years to complete, excludes interviews with four highest-value detainees subjected to the “CIA’s most brutal treatment,” including Khalid Sheikh Mohammed who was waterboarded 183 times. While the Senate committee did not comment on this revelation, lawyers for the four detainees “consider the committee’s omissions consistent with years of US efforts to conceal the truth about the program and insulate those involved from reprisal.”

Defense Secretary Chuck Hagel resigned this week following tension over transferring Guantanamo detainees and a dispute with National Security Advisor Susan Rice over Syria policy. According to White House officials, in a two-page memo to Rice, Hagel “warned that the administration’s Syria policy was in danger of unraveling because of its failure to clarify its intentions toward President Bashar al-Assad. Senior officials complained that Mr. Hagel had never made such a case in internal debates, suggesting that he was trying to position himself for history on a crucial issue as he was talking to Mr. Obama about leaving his job.” Hagel was chosen to lead the Defense Department two years ago to counter Pentagon officials who wanted to pursue a more aggressive U.S. presence in Afghanistan and a slower U.S. drawdown in Iraq.

Norm Eisen, former Obama administration  "Transparency Tzar."

Norm Eisen, former Obama administration “Transparency Tzar.”

In the latest Brookings Report, Gary D. Bass, Danielle Brian and Norm Eisen – Obama’s early point person on transparency issues – argue “transparency is actually one of the areas today where Congress can find common ground to help make government work better.” Citing the FOIA Improvement Act of 2014 as an example of how open government can breed bipartisanship, the authors state “core laws need to be updated to further the affirmative government to disclose information and to better utilize technology to make information widely available to the public in timely, accurate, and useful formats.”

Congress recently published the Congressional Research Service’s (CRS) 400-page volume, “The Evolving Congress,” to help commemorate the CRS’ 100th anniversary. CRS does not publicly release its reports, although Congress could easily change this practice, subsequently giving “the public something tangible in return for the $107 million it pays for CRS’s operations: an oasis of unbiased information in an Internet awash with half-truths and outright buncombe.” Currently CRS “posts its reports at CRS.gov, a website accessible only to Congress and its staff.”

The Interagency Security Classification Appeals Panel (ISCAP) recently posted “a status log of all of the open mandatory declassification review (MDR) and classification challenge appeals active” during the current Obama administration. The log, noticeably full of the names of Archivists taking advantage of ISCAP’s release rate, which overrules agency denials in more than 65 percent of its decisions, reveals that the ISCAP does not work on a first-in, first-out basis, and confirms that the wait times tend to be quite long, with decisions typically reached 4-6 years after the date of the request.

The FOIA Ombuds Office of Government Information Services’ (OGIS) director, Miriam Nisbet, will be retiring at the end of the month. Ms. Nisbet has been OGIS’ director since its inception five years ago, and the Archive applauds the commitment to open government and FOIA she’s demonstrated while at the helm. The Department of Defense’s chief FOIA Officer, Will Kammer, who championed best FOIA practices within the DOD, retired at the end of October.

sourcebookpageOn Monday, December 1 Archive FOIA Coordinator Nate Jones will join Professor Bernd Schaefer and former CIA Chief Historian Ben B. Fischer on a panel discussing newly-translated Stasi and foreign intelligence branches of the Soviet KGB documents concerning Project RYaN, the early-warning system that constituted one part of the Soviet response to the perceived threat of a surprise “decapitation” strike by NATO nuclear forces. The documents and panel discussion will “give unprecedented insight into the capabilities and fears of the Eastern Bloc intelligence services from the Able Archer ’83 War Scare to the end of the Cold War.”

From left to right - Kirby Jones, Frank Mankiewicz, Fidel Castro. Photo courtesy Frank Mankiewicz.

From left to right – Kirby Jones, Frank Mankiewicz, Fidel Castro. Photo courtesy Frank Mankiewicz.

Frank Mankiewicz, the renowned political and media strategist and former president of NPR, served as a “special channel” of communication between Secretary of State Henry Kissinger and Cuban commandante Fidel Castro in the mid 1970s, according to formerly classified documents posted this week by the National Security Archive. The secret Kissinger-Castro talks, and Mankiewcz’s efforts to facilitate them, are detailed in a new book Back Channel to Cuba: The Hidden History of Negotiations Between Washington and Havana by Archive senior analyst, Peter Kornbluh, and American University Professor William M. LeoGrande. According to the book, Mankiewicz helped set in motion “the most serious effort to normalize relations between the United States and Cuba since Washington broke ties with Havana in January 1961.”

Happy FOIA-ing!

The Soviet Battlefield Development Plan

November 20, 2014

 

sbdpBy Clay Katsky

On November 1, 1982, an executive summary of The Soviet Battlefield Development Plan (SBDP) was published as a secret report for military officers. A strategic analysis prepared by the Office of the Assistant Chief of Staff for Intelligence, with contributions from the U.S. Army Intelligence and Threat Analysis Center, the Foreign Science and Technology Center, and the Missile Intelligence Agency, the information contained in this document was considered valid up only through the previous August 1982, and work on the next version was already under way when it was released. The SBDP was “Army Intelligence’s response to a request from the Commander of TRADOC [U.S. Army Training and Doctrine Command] for a Soviet counterpart to the U.S. Battlefield Development Plan,”[i] and was intended to give TRADOC decision makers an overview of the competition they faced, which would allow them to plan better for possible battlefield maneuvers. According to its preface: “Ideally, Army planners will be able to exploit our understanding of Soviet doctrine and force modernization, thereby giving the U.S. Army advantages in equipment, weapons, training, and tactics.”[ii] The stated goal of “forced modernization” hints towards a potential framework that contributed to the Soviet Union’s collapse and peaceful end to the Cold War.

Thousands of pages long, this hefty stack of intelligence was compiled as an Executive Summary “designed to give senior officers the key findings of the SBDP in a form they can read in a couple of hours.”[iii] Having been specifically put together for readers pressed for time, with the intention “to integrate the mass of intelligence information we have on Soviet military affairs in an interpretive framework,”[iv] this recently declassified tome should prove a valuable resource for researchers looking for primary source material pertaining to Cold War military logistics. Made available to the National Security Archive at the end of March 2014 in response to a FOIA request sent to U.S. Army Intelligence and Security Command, this intelligence report is a revelatory read for any Cold War historian, and also others interested in the theoretical and strategic aspects of military planning. Interesting revelations include:

  • Section 7 of the report, Forecasts of Operations, starts by offering six background bullets to give an overview of the how the Soviets’ “new operational concepts for the nuclear battlefield greatly enhanced their conventional war-fighting capabilities as well.”[v] The last point is especially interesting in terms of understanding how the U.S. foresaw Soviet battlefield behavior: “Their force structure, however, suggests that they want to retain as much choice as possible not to use nuclear weapons, for as long as possible. They do not want choices predetermined or automatic as a result of force design and doctrine. But once the nuclear use is decided, the first blow is, in their view, possibly decisive. Their forces are designed to provide successive strikes over days and weeks. How significant these lay-downs will be is not so clear to them.[vi]
  • …Crossing the tripwire.

    Also in Section 7’s Forecasts for Operations is an analysis detailing the implications of Marshal Ogarkov’s assignment as Chief of the General Staff in 1977, which the report says “marked the beginning of a new series of initiatives to carry Sokolovsky’s ‘force development plan’ further and to achieve it faster.”[vii] Ogarkov believed operational concepts had not kept pace with equipment development and advancements, and therefore the battlefield potential of new improved weapons systems needed to be maximized: “Figure 9 presents the kinds of improved weapons capabilities Ogarkov had in mind. It indicates the depths to which Soviet commanders at various organizational levels can place nuclear or conventional fires by using their organic missile assets.[viii] [ix]

  • A chapter assessing Soviet infrastructure examines Soviet transportation capabilities but focuses on the interdiction susceptibility of military transport routes. One section entitled How This Influences Their Ability to Fight Now and in the Year 2000 looks at both the strengths and weaknesses of recent trends in the their transportation sector: “Soviet transportation facilities are not the best in the world, but their shortcomings in this respect will not significantly impair their ability to conduct a successful invasion of Europe. However, the transloading points between the Soviet and Polish rail lines appear to be extremely vulnerable.[x]
  • A chapter of the report on Civil Defense opens with a history of the “largest and most comprehensive war-survival program in the world,”[xi] and then concludes with the Soviet’s three main objectives: “(1) An ability to protect people – the leadership first, the essential workforce second, and the remainder of the population third; (2) An ability to protect the sources of economic productivity, to assure the continuity of economic activity in wartime, and to permit the restoration of production following a nuclear attack; (3) An ability to sustain the surviving population and to prepare for longer term postattack recovery.[xii] In a section analyzing the survival of the Soviet people, the report states: “A minimum of 10 to 20 percent of the population in urban areas (including essential workers) could presently be accommodated in blast-resistant shelters.”
  • “The Soviets define reconnaissance as ‘information about the location, disposition, composition, number, armament, combat preparedness, character of activities, and intentions of the enemy in the interest of combat.’”[xiii] A chapter forecasting the future of Soviet reconnaissance and surveillance systems predicts and examines future aerial approaches. In the period from 1986-1990, the report states that the Soviets will deploy an airborne warning and control system, today commonly known as AWACS. “An AWACS so deployed could provide continuous target track data over a wide-area to an integrated ground-based air defense system. Continuous, low-altitude, target-tracking coverage would provide for an enhanced environment for wide-area ground control intercept (GCI). Wide-area GCI, when combined with a fighter look-down/shoot-down capability, can provide a significant frontal aviation low-altitude aircraft intercept capability.[xiv]
  • Perhaps most interesting of all, and buried deep in the document is a heavily redacted portion which explores the capabilities of Soviet reconnaissance and weapons systems including an electromagnetic pulse (EMP) device. A chapter on Firepower and Target Disruption focuses on artillery, but also “considers aircraft, chemical and biological weapons, nuclear warheads, and directed energy weapons,”[xv] and contains the prediction that the Soviets will soon employ an EMP weapon for battlefield use. “The Soviets are expected to have the capability to introduce a field artillery projectile with an EMP intended to damage solid-state electronic devices within about 300 meters of the round when the EMP event is initiated. The device would be powered by an explosive generator and would likely be mounted in a 203-mm carrier projectile. It would be employed to disrupt seriously or destroy proximate battlefield electronic devices, including communications and computers.[xvi]

[i] SBDP, page (3)

[ii] SBDP, page (3)

[iii] SBDP, page (3)

[iv] SBDP, page (3)

[v] SBDP, page (46)

[vi] SBDP, page (47)

[vii] SBDP, page (47)

[viii] SBDP, page (47) – (49)

[ix] SBDP, page (48)

[x] SBDP, page (173)

[xi] SBDP, page (231)

[xii] SBDP, page (233-235)

[xiii] SBDP, page (600)

[xiv] SBDP, page (604)

[xv] SBDP, page (668)

[xvi] SBDP, page (695)

Senate Judiciary Committee Unanimously Passes FOIA Improvement Act, Senate Republicans Kill NSA Reform, and Much More: FRINFORMSUM 11/20/2014

November 20, 2014
Senator Leahy, chair of the Senate Judiciary Committee.

Senator Leahy, chair of the Senate Judiciary Committee.

The Senate Judiciary Committee unanimously passed the FOIA Improvement Act’s Manager’s Amendment today, which maintains the most important reforms in the bill. While it strips a public interest balancing test provision specifically for Exemption Five, it includes a new statutory provision stating that agencies cannot use Exemption Five (or some other other exemptions) to “withhold information… merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption” or “merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.” The bill will also preclude agencies from using Exemption Five to withhold documents over 25 years old. This means, for example, that the CIA couldn’t misapply Exemption Five and use it continue to hide a 30-year-old volume of the agency’s draft “official history” of the Bay of Pigs debacle.

The next step for the FOIA improvement Act is a vote on the Senate floor, followed by, hopefully, conference with the House. Given the House’s unanimous vote in favor of FOIA reform this May, the chances of conference seem high. The Archive congratulates Senate Judiciary chairman Sen. Leahy (D-VT), ranking member Sen. Grassley (R-IA), Sen. Cornyn (R-TX), and Reps. Issa (R-CA) and Cummings (D-MD), for working together in one of the last bastions of bipartisanship to push through this important FOIA legislation.

Senate Republicans killed a bill this week that would have curbed the National Security Agency’s (NSA) dragnet domestic surveillance practices in a 58-42 vote. Most believed that this vote would only delay the debate over surveillance practices until next June, when the legal basis for the NSA’s phone records collection program, a provision of the Patriot Act, expires. A little-known provision of the Patriot Act, however, has recently been discovered that would allow the program to continue indefinitely, even after the law expires. The provision, “obscure because it was recorded as a note accompanying Section 215″ and did not receive its own listing in the U.S. Code, would allow the president to directly petition the Foreign Intelligence Surveillance Court to keep the program alive.

The world’s most popular instant messaging service, WhatsApp, following similar announcements by Apple and Google, said it will begin encrypting all of its data, making it impossible for law enforcement to access the data even with a warrant. FBI director James Comey has repeatedly spoken out against Apple and Google for their encryption policies, saying the “post-Snowden pendulum has swung too far.”

The U.S. Marshals Service uses small Cessnas like this one to broadcast fake cell phone tower signals. Reuters photo.

The U.S. Marshals Service uses small Cessnas like this one to broadcast fake cell phone tower signals. Reuters photo.

The Department of Justice is refusing to either confirm or deny reports that the U.S. Marshals, the oldest federal law enforcement agency in the U.S., harvests “large amounts of data from Americans’ cellphones through devices mounted on airplanes in an effort to locate fugitives.” According to the Wall Street Journal, the Marshals run the program out of five large metropolitan areas through Cessna planes “equipped with two-foot-square devices — sometimes called ‘dirtboxes’ — that mimic cell towers and trick cellphones into reporting their unique registration information and general location.”

The government retracted arguments made last month in a 9th Circuit Court of Appeals case concerning whether or not the gag orders that prevent recipients of the FBI’s National Security Letters (NSL) from discussing them constitute a violation of the First Amendment. Last month a DOJ lawyer said “that companies that receive national security letters — an administrative subpoena that can be issued by a field office supervisor — can comment on the ‘quality’ of the NSLs, including whether they think ‘the government is asking for too much.’” After the statements a Civil Division attorney called the lawyer’s comment “an inadvertent misstatement,” and the notion that a recipient can “publicly discuss the fact that it had received one or more NSLs and could discuss the quality of the specific NSL” received is “mistaken.”

Secrecy News’ Steven Aftergood recently reported that the government will revisit its “no fly” list procedures to make them more transparent and easier to challenge. The government’s announcement was made in connection with the Gulet Mohamed v. Eric Holder lawsuit. An August 5 Intercept article, which cites classified government documents on the National Counterterrorism Center’s databases, shows, among other things, “that 47,000 people — including 800 Americans — were on the government’s no-fly list, while an additional 16,000 — including 1,200 Americans — were on the ‘selectee’ list.”

Archivist William Burr recently received a heavily excised document in response to a decade-old MDR request for Pentagon records of former Defense Secretary Robert S. McNamara. The problem (aside from the decade-long wait)? The redacted document had previously been released twice nearly in its entirety, once in response to a 1990 FOIA request, and later in a 1996 State Department Foreign Relations of the United States publication.

The same page – page 5 – from the same document, released 3 different times. From Left to Right: 2014 National Archives release with Department of Defense redactions, 1996 Foreign Relations of the United States release, and circa 1990 Department of Defense Freedom of Information Act Release.

The same page – page 5 – from the same document, released 3 different times. From Left to Right: 2014 National Archives release with Department of Defense redactions, 1996 Foreign Relations of the United States release, and circa 1990 Department of Defense Freedom of Information Act Release.

This week marked the 25th anniversary of El Salvador Jesuit murders by Salvadoran security forces. To mark the event, the Archive, which has spent the last 25 years collecting declassified U.S. documents on El Salvador, including the Jesuit murders, posted ten documents written by U.S. officials on the day of the murders and during the week that followed, showing the U.S.’s initial unwillingness to consider the Salvadoran military’s responsibility for the killings.

The Archive recently posted a collection of declassified documents on Project Sapphire, the first major success of the Nunn-Lugar program, to mark the project’s 20th anniversary. The posting includes an after-action report, analysis of HEU samples, Video of C-5 landings in Ust-Kamenogorsk, and photographs of uranium, and is part of a series on the history of the Nunn-Lugar program prepared by the Archive, building on the groundbreaking research in the Pulitzer-Prize-winning book, The Dead Hand: The Untold Story of the Cold War Arms Race and Its Dangerous Legacy.

Chief of Staff Donald Rumsfeld, President Gerald Ford and Deputy Chief of Staff Richard Cheney April 28, 1975.

Chief of Staff Donald Rumsfeld, President Gerald Ford and Deputy Chief of Staff Richard Cheney April 28, 1975.

In light of the Senate’s FOIA vote, today’s #tbt document pick is a 2004 Archive posting inspired by some significant legislative FOIA history. On this day in 1974 the House of Representatives voted overwhelmingly (371-31) to override President Gerald Ford’s veto of H.R. 12471, a bill that would significantly strengthen the Freedom Of Information Act, which Ford – encouraged by White House chief of staff, Donald Rumsfeld, Rumsfeld’s deputy, Dick Cheney, and Antonin Scalia, then the U.S. assistant attorney general for the Office of Legal Counsel – called “unconstitutional and unworkable.” The House, and later the Senate, disagreed, overriding the President’s veto. The amended FOIA incorporated judicial review of agency decisions, narrowing of some exemptions, restrictions on fees agencies could charge, and a time limit for agencies to comply with a request.

Happy FOIA-ing!

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