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Declassified Documents Given By Biden to Rousseff Detail Secret Dictatorship-Era Executions, “Psychophysical” Torture in Brazil

July 3, 2014
"Allegations of Torture in Brazil."

“Allegations of Torture in Brazil.”

The Brazilian military regime employed a “sophisticated and elaborate psychophysical duress system” to “intimidate and terrify” suspected leftist militants in the early 1970s, according to a State Department report dated in April 1973 and made public yesterday. Among the torture techniques used during the military era, the report detailed “special effects” rooms at Brazilian military detention centers in which suspects would be “placed nude” on a metal floor “through which electric current is pulsated.” Some suspects were “eliminated” but the press was told they died in “shoot outs” while trying to escape police custody. “The shoot-out technique is being used increasingly,” the cable sent by the U.S. Consul General in Rio de Janeiro noted, “in order to deal with the public relations aspect of eliminating subversives,” and to “obviate ‘death-by-torture’ charges in the international press.”

Because of the document’s unredacted precision, it is one of the most detailed reports on torture techniques ever declassified by the U.S. government.

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From “one of the most detailed reports of torture ever declassified by the US government.”

Titled “Widespread Arrests and Psychophysical Interrogation of Suspected Subversives,” it was among 43 State Department cables and reports that Vice President Joseph Biden turned over to President Dilma Rousseff during his trip to Brazil for the World Cup competition on June 17, for use by the Brazilian National Truth Commission (CNV). The Commission is in the final phase of a two-year investigation of human rights atrocities during the military dictatorship which lasted from 1964 to 1985.  On July 2, 2014, the Commission posted all 43 documents on its website. “The CNV greatly appreciates the initiative of the U.S. government to make these records available to Brazilian society and hopes that this collaboration will continue to progress,” reads a statement on the Commission’s website.

The records range in date from 1967 to 1977. They report on a wide range of human rights-related issues, among them: secret torture detention centers in Sao Paulo, the military’s counter-subversion operations, and Brazil’s hostile reaction in 1977 to the first State Department human rights report on abuses. Some of the documents had been previously declassified; others, including the April 1973 report from Rio, were reviewed for declassification as recently as June 5, 2014, in preparation for Biden’s trip.

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Declassification Diplomacy.

During his meeting with President Rousseff, Biden announced that the Obama administration would undertake a broader review of still highly classified U.S. records on Brazil, among them CIA and Defense Department documents, to assist the Commission in finalizing its report.  “I hope that in taking steps to come to grips with our past we can find a way to focus on the immense promise of the future,” he noted.

Since the inception of the Truth Commission in May 2012, the National Security Archive has been assisting the Commissioners in obtaining U.S. records for their investigation, and pressing the Obama administration to fulfill its commitment to a new standard of global transparency and the right-to-know by conducting a special, Brazil declassification project on the military era.

Advancing truth, justice and openness is precisely the way classified U.S. historical records should be used.  Biden’s declassified diplomacy will not only assist the Truth Commission in shedding light on the dark past of Brazil’s military era, but also create a foundation for a better and more transparent future in U.S.-Brazilian relations.

To call attention to the records and the Truth Commission’s work, the Archive is highlighting five key documents from Biden’s timely donation:

1)  Widespread arrests and psychophysical interrogation of suspect subversives

2) Political arrests and torture in São Paulo

3) Allegation of torture in Brazil

4) Conditions in DEOPS Prison as told by Detained American Citizen

5) Esquadrão da Morte

 

For more information contact Peter Kornbluh (peter.kornbluh@gmail.com202 374-7281) who directs the National Security Archive’s Brazil Documentation Project.

 

 

DNI’s Transparency Report “Provides No Basis” for Evaluating Surveillance, FBI Doesn’t Keep Track of its 702 Searches, Blackwater Back Under Scrutiny, and Much More: FRINFORMSUM 7/3/2014

July 3, 2014
DNI on the Record

DNI on the Record

The Office of the Director of National Intelligence (DNI) recently released its first annual “transparency report,” indicating, among other things, that it had targeted nearly 90,000 foreign entities for surveillance last year.  According to the report, the government obtained only one order last year under Section 702 of the Foreign Intelligence Surveillance Act, which regulates surveillance of foreign targets, and that single order covered the 89,138 targets. Privacy advocates argue that this number is artificially low and that a target could be a sole individual or an organization with thousands of members.

The DNI report also revealed that the government uses over 420 “selectors” to search its phone database, which includes records going back to at least 2006, when the program began. The transparency report also showed that the government sent over 19,000 National Security Letters last year that involved more than 38,000 requests for information. These letters, which demand business records from a wide array of organizations for national security investigations, are deservedly under scrutiny for their lack of judicial oversight and non-disclosure provisions, which prevent the full extent of the NSL program from becoming known.

All told, however, the numbers in the transparency report only provide an approximate idea of the level of surveillance conducted, and “provides no basis for evaluating the utility or legitimacy of the surveillance activities.”

The independent Privacy and Civil Liberties Oversight Board (PCLOB) issued its own report shortly after the DNI released its transparency report, finding that the NSA’s surveillance of foreign communications is lawful, but elements of Section 702 come “close to the line” of being unconstitutional. This report is in stark contrast to its previous report, which “sharply criticized the collection of the phone records of Americans” by the NSA. While PCLOB’s most recent report was considerably less damning and did not recommend the government obtain a warrant for searches of Americans’ communications that were obtained under Section 702, it did recommend “the NSA’s targeting procedures be revised to specify criteria for determining the expected foreign intelligence value of a particular target.” The board also raised concerns about the agency collecting communications in which the target’s identifying information is located in the “about” field of an email, as opposed to the “to” of “from” fields, and using selectors to search for communications of US citizens among information that had already been gathered, known as a “backdoor” searches.

Senator Ron Wyden (D-Or) slammed the DNI’s response to his separate request for the number of queries intelligence agencies perform using identifiers of US citizens collected under Section 702 of the FISA. While the letter the DNI sent in response to his request asserted that the searches it conducts are lawful and the Intelligence Community (IC) isn’t conducting “backdoor” searches, Senator Wyden argued the letter revealed the exact opposite. The DNI’s letter shows the CIA performed “fewer than 1900” queries associated with US citizens in 2013, that the NSA approved 198 such searches, and, startlingly, that the FBI does not keep track of the number of searches it performed pursuant to Section 702, and that “the FBI does not distinguish between U.S. and non-U.S. persons for purposes of querying Section 702 collection.” Wyden said this inadequate FBI response shows “how flawed this system is and the consequences of inadequate oversight. This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected.”

Sarhan Deab Abdul Moniem leaving court on Tuesday after testifying in the Blackwater trial. Credit Gabriella Demczuk/The New York Times

Sarhan Deab Abdul Moniem leaving court on Tuesday after testifying in the Blackwater trial. Credit Gabriella Demczuk/The New York Times

Blackwater, the private security contractor heavily utilized during the Iraq War, is back under scrutiny for its actions in Iraq in 2007. The FBI is coordinating travel arrangements for more than four dozen Iraqi citizens to testify against Blackwater contractors in a Washington, D.C. courtroom for fatally shooting 17 Iraqi civilians at Baghdad’s Nisour Square on September 16, 2007 (this is the government’s second attempt to prosecute the case in American court; an earlier case was dismissed in 2009). At the same time, a New York Times article is reporting that weeks before the 2007 shooting, a Blackwater manager told a State Department investigator “that he could kill” the government’s chief investigator and “no one could or would do anything about it as we were in Iraq.” Troublingly, the American Embassy in Baghdad sided with the contractor and accused the government investigator of disrupting its relationship with the contractor, and ordered the investigators to leave the country. Investigator Jean C. Richter returned to D.C. and issued an August 31, 2007, memo ‘warning that lax oversight of the company, which had a contract worth more than $1 billion to protect American diplomats, had created “an environment full of liability and negligence.”’

A House Appropriations Committee report called out the Department of Homeland Security for overusing the “For Official Use Only” stamp, and said efforts to determine what material was truly sensitive “wasted substantial staff resources.” The House further argued in its 2015 DHS appropriations report that in the future “any official who marked a document FOUO [must] identify himself or herself on the document, along with a justification for doing so.”

A Chilean court has implicated US military intelligence in the 1973 murder of American journalist Charles Horman and student Frank Teruggi. The court ruling showed US Navy Capt. Ray E. Davis –the commander of the US mission in Chile during the American-backed September 1973 coup to overthrow democratically-elected President Salvador Allende and who was responsible for investigating Americans in Chile deemed to be radical-, gave information on the Americans’ whereabouts to Chilean authorities, who used this information to arrest and execute them several days later.

A newly-released version of the internal CIA history, The Battle for Iran, obtained in response to a National Security Archive MDR request, provides more specifics on internal disagreements over planning the 1953 coup. The newly-released document also offers the most explicit declassified CIA references to-date about British participation in the operation, and does not view the Iranian coup “as an undiluted success,” noting that it left considerable “debris” in its wake (p. 71)

Arabic road signs from Survival Handbook

Arabic road signs from Soldier Handbook

This week’s #tbt document pick is the US First Infantry Division’s unclassified Soldier’s Handbook to Iraq, a primer for US soldiers on the climate, culture, and dangers of Iraq. Discussed in detail in a February 2010 posting by Archive FOIA Coordinator Nate Jones, the handbook details hazardous plants and animals to avoid, emphasizes that poison may not be used to alter weapons in order to increase enemy suffering, recommends enforcing resettlement and compensation programs ASAP, and generally contradicts Vice President Cheney’s March 2003 assertion that US soldiers “would be greeted as liberators.”

Happy FOIA-ing!

 

50 Open Government Groups Support FOIA Legislation that Addresses “Wildly Misused” Exemption, Drone Memo Release, Report that Drone Usage is a “Slippery Slope” to Perpetual War, and Much More; FRINFORMSUM 6/26/2014.

June 26, 2014
The Rise of B(5).  Chart by Lauren Harper, compiled from AP statistics

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

Senators John Cornyn (R-TX) and Patrick Leahy (D-VT) have introduced legislation that has the potential to be “the most significant” FOIA reform in four decades. The legislation, the FOIA Improvement Act of 2014, would mandate a 25-year sunset for the “wildly misused” (b)(5) “withhold it because you want to” FOIA exemption –an exemption that currently has no time limit and has recently  been used to deny everything from a CIA draft history of the 53-year-old Bay of Pigs invasion to names of VA hospitals where veterans died due to delays in medical screenings–, would address fee problems, and would include a higher bar for documents covered under the attorney-client relationship. There is extremely widespread support for the Senate bill, with 50 open government groups, including the National Security Archive, collectively voicing their endorsement of the FOIA Improvement Act.

Letter of support signed by: American Association of Law Libraries, American Booksellers Foundation for Free Expression, American Library Association, American Society of News Editors, Amnesty International USA, Association of American Publishers, Association of Research Libraries, Appeal for Justice, Arizona Newspapers Association, Article 19, Cause of Action, Center for Effective Government, Center for Science and Democracy at the Union of Concerned Scientists, Citizens for Responsibility and Ethics in Washington, Council on American-Islamic Relations, Defending Dissent Foundation, Dont Tread on Educators, Electronic Frontier Foundation, Essential Information, Federation of American Scientists, First Amendment Coalition, Freedom of the Press Foundation, Government Accountability Project, iSolon.org, Liberty Coalition, Mississippi Center for Freedom of Information, National Coalition Against Censorship, National Coalition for History, National Security Archive, National Security Counselors, National Sustainable Agricultural Coalition, OpenTheGovernment.org, PEN American Center, People For the American Way, Physicians for Human Rights, Project on Government Oversight, Public Citizen, Reporters Committee for Freedom of the Press, The Rural Coalition, Sage Information Services, Savannah River Site Watch, Society of American Archivists, Society of Professional Journalists, Student Press Law Center, The Sunlight Foundation, Tully Center for Free Speech at Syracuse University, University of Floridas Brechner Center for Freedom of Information, Utah Foundation for Open Government, Washington Civil Rights Council, and the Washington Coalition for Open Government.

Letter of support signed by: American Association of Law Libraries, American Booksellers Foundation for Free Expression, American Library Association, American Society of News Editors, Amnesty International USA, Association of American Publishers, Association of Research Libraries, Appeal for Justice, Arizona Newspapers Association, Article 19, Cause of Action, Center for Effective Government, Center for Science and Democracy at the Union of Concerned Scientists, Citizens for Responsibility and Ethics in Washington, Council on American-Islamic Relations, Defending Dissent Foundation, Don’t Tread on Educators, Electronic Frontier Foundation, Essential Information, Federation of American Scientists, First Amendment Coalition, Freedom of the Press Foundation, Government Accountability Project, iSolon.org, Liberty Coalition, Mississippi Center for Freedom of Information, National Coalition Against Censorship, National Coalition for History, National Security Archive, National Security Counselors, National Sustainable Agricultural Coalition, OpenTheGovernment.org, PEN American Center, People For the American Way, Physicians for Human Rights, Project on Government Oversight, Public Citizen, Reporters Committee for Freedom of the Press, The Rural Coalition, Sage Information Services, Savannah River Site Watch, Society of American Archivists, Society of Professional Journalists, Student Press Law Center, The Sunlight Foundation, Tully Center for Free Speech at Syracuse University, University of Florida’s Brechner Center for Freedom of Information, Utah Foundation for Open Government, Washington Civil Rights Council, and the Washington Coalition for Open Government.

For these much-needed FOIA reforms to be felt, the Senate bill must be signed into law. Fortunately, FOIA reform legislation already unanimously passed the House this February, thanks to leadership of Representatives Darrell Issa (R-CA), Elijah Cummings (D-MD), and Mike Quigley (D-IL), and now may be the best chance for FOIA bills passed in the House and Senate to be reconciled in conference and become law. As Archive FOIA Coordinator Nate Jones eloquently said, ‘The National Security Archive strongly supports the Senate and House bills, and is deeply impressed that Representatives and Senators Issa, Cummings, Quigley, Leahy, and Cornyn realized the importance of substantive FOIA reform and worked together to improve the law so that –among other improvements– agencies will no longer be able to withhold information –Department diversity studies, histories of the Bay of Pigs invasion, or abuses at Veterans Affairs– merely “because they want to.”’

Senator Ron Wyden (D-OR) expressed frustration on the floor of the Senate earlier this month with the new Intelligence Community directive that bars employees from having any contact with the media about intelligence issues. Wyden said the directive “is so broad it could cover unclassified information. It does not lay out any limits on this extraordinarily broad term that I have described. My hope is we can get this corrected because I think it is going to have a chilling effect on intelligence professionals who simply want to talk about unclassified matters on important national security issues– such as how to reform domestic surveillance or whether our country should go to war.”

The House approved legislation by a vote of 293-123 last week to “bar warrantless collection of personal online information and prohibit access for the NSA and CIA into commercial tech products.” The provision is part of the $570 billion defense spending bill, and also makes it harder for the Obama administration to fulfill its promise to close Guantanamo Bay. The roadblocks to closing Guantanamo included in the provision were likely due to the administration’s failure to notify Congress of the exchange of five Taliban prisoners held at Guantanamo for Army Sgt. Bowe Bergdahl, and now bars 85 per cent of funds for overseas conflicts until Defense Secretary Hagel “reassures Congress that congressional notification on Guantanamo transfers will be respected.”

Representative Rush Holt (D-NJ) earmarked $2 million in the Defense Appropriations bill for investigating whistleblower complaints in the intelligence community, which was approved by the House on June 18. Holt said the amendment “will ensure that they have resources to respond to legitimate concerns.”

A federal appeals court released portions of a July 2010 Department of Justice memo that provided the legal authorization to target American citizen Anwar al-Awlaki in a lethal drone strike this week. The memo, authored by David Barron, then the acting head of the DOJ’s Office of Legal Counsel (OLC), was released thanks to a FOIA lawsuit brought by the New York Times and the American Civil Liberties Union. The Obama administration was pressured to release the memo by Senators, who threatened to block Mr. Barron’s recent nomination to a federal appeals court in Boston if the administration failed to release the memo. The memo cites, among other things, “public authorities justification,” which are actions that governments take in emergency situations that would otherwise break the law, as legal precedent for targeting al-Awlaki. The memo also discloses that the CIA has an official operational role in the strikes, and that there are additional OLC memos related to targeted killings that will likely be partially released as well.

Drone memo released while new drone report warns of slippery slope into perpetual war. Photo: Ethan Miller/Getty Images

Drone memo released while new drone report warns of slippery slope into perpetual war. Photo: Ethan Miller/Getty Images

A new report conducted by a distinguished panel of former senior intelligence and military officials and released by the Stimson Center warns that the Obama administration’s use of lethal drone strikes places the US on a “slippery slope” into perpetual war and establishes a dangerous precedent for other nations. The report is neither wholly critical or laudatory of armed drones, indicating that there is no evidence that using drones creates a “PlayStation mentality” when it comes to killing, and reports that because drone pilots see their targets destroyed on high resolution screens, they are more likely to suffer post-traumatic stress than their counterparts manning aircraft. The report, however, is sharply critical of both the Obama and the Bush administrations for paying too little thought “to what consequences might be spawned by this new way of waging war.”

The CIA has completed its review of the 500-page executive summary of the Senate Intelligence Committee’s 6,800-page torture report, which the Committee voted to make public in April. The contentious report accuses the CIA of misleading the Senate about its detention 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.” The report is now being sent to the White House, and Senate Intelligence Committee chairwoman Sen. Dianne Feinstein (D-CA) expects the committee will receive it “sometime during the summer” for declassification.

The internal affairs division of the Customs and Border Patrol (CBP) is being investigated for a slew of “So many allegations of wrongdoing involving the [CBP] internal affairs division you’d need a flow chart to sort them all out.” This comes on the heels of both a McClatchy report that “found that at least 21 civilians have been fatally shot by Border Patrol agents in the past four years,” and a recent report by the American Immigration Council that found, thanks to a FOIA request, that complaints against Border Patrol agents and CBP “have more than doubled in size in the last seven years.”

The bin Laden doll after the top layer of paint faded away. Photo by Adam Goldman/The Washington Post

The bin Laden doll after the top layer of paint faded away. Photo by Adam Goldman/The Washington Post

The Archive has already submitted a FOIA request to the CIA regarding a recent Washington Post article that revealed the agency had plans to make a scary Osama bin Laden doll, codenamed “Devil Eyes,” and to distribute them in Afghanistan or Pakistan. The face of the doll, designed to frighten children, was painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings.” The doll is part of the CIA’s long history of “influence operations,” which include publishing and distributing Boris Pasternak’s “Doctor Zhivago” in the Soviet Union in 1958 in an effort to stir political unrest, and was carried out with the aid of former Hasbro executive and toymaker Donald Levine.

The FOIA Advisory Committee had its inaugural meeting this week. Made up of 10 government officials and 10 non-governmental FOIA experts, including Archive FOIA Coordinator Nate Jones, the Committee discussed ways to improve the FOIA. Jones “suggested reviewing FOIA lawsuits to determine whether there are cases that need not be litigated. He also suggested a pre-litigation program within agencies to have closer scrutiny of whether the Government will defend an agency in litigation.” The Committee designated fee waivers and how to reduce “fee animosity” between requesters and agencies as a top priority.

As the US mulls what action to take in Iraq in the midst of rising sectarian violence, this week’s #tbt document pick is an October 31, 1998, statement by President Bill Clinton. The statement accompanied his signing of the Iraq Liberation Act, making the overthrow of Iraq’s government U.S. policy, and indicates that the US would give Iraqi opposition groups $8 million to assist them in unifying, cooperating, and articulating their message. For more information and declassified documents on the Iraq War and the lead-up to it, visit the National Security Archive.

Happy FOIA-ing!

The Senate Tackles B(5) FOIA Reform

June 24, 2014
FOIA Champions Senator Cornyn and Leahy.

FOIA Champions Senators Cornyn and Leahy.

This March, the Veterans Affairs Administration denied a Freedom of Information Act request for the names of its hospitals where veterans died due to delays in medical screenings.  To hide this information, the VA used the b(5) “deliberative process” exemption which potentially covers any “inter-agency or intra-agency memorandums or letters.”  This misapplication was not an isolated incident.  Agency use of this b(5) catch-all exemption has skyrocketed, often to prevent embarrassment or hide errors and failures –ignoring President Obama’s clear instructions to the contrary.

Fortunately, Senators Leahy (D-Vt) and Cornyn (R-Tx), two long-time FOIA champions,  have introduced legislation to fix this “withhold it because you want to” FOIA loophole.  Today, they introduced the FOIA Improvement Act of 2014 which, in addition to b(5) reform, –and among other reforms– clarifies FOIA fee issues, grants further independence to the FOIA ombuds Office of Government Information Services, and creates a Chief FOIA Officer Council.

There has been a longstanding and strong push to end agencies’ practices of withholding too much information under the b(5) exemption.  In March of 2009, Attorney General Holder instructed that documents should not be withheld “merely because [an agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”  DOJ guidance (page 689) holds that documents which could technically be withheld under b(5) “hold the greatest potential for discretionary disclosures.”  This guidance reflects the guidance Obama issued on the first day of his presidency:  “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA.”

In fact, during the Obama administration’s first two years, his administration 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 that is no longer the case.  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  and Department of Justice have been unable to get agencies to comply with their clear instructions on FOIA.

The Rise of B(5).  Chart by Lauren Harper, compiled from AP statistics

The Rise of B(5). Chart by Lauren Harper, compiled from AP statistics

"...Cannot judicially invent"

“…Cannot judicially invent”

Federal Courts have also explicitly challenged Congress to act.  This May, the DC District Court of Appeals ruled against a National Security Archive FOIA request for the release of  a 30-year-old history of the 53-year-old Bay of Pigs invasion.  The CIA claimed that the document in question was a “predicisional” draft, and used the b(5) exemption to argue its release could harm current CIA historical work, or even “confuse the public.”  In it’s two-to-one decision, the Court wrote: “According to the FOIA requester, the CIA’s interest in protecting any contentious or sensitive issues discussed in the draft of Volume V has diminished over time. But unlike some statutes, such as certain provisions of the Presidential Records Act, see 44 U.S.C. § 2204(a), Exemption 5 of FOIA does not contain a time limit. We must adhere to the text of FOIA and cannot judicially invent a new time limit for Exemption 5.”  Only Congress can.

Thankfully, Senators Leahy, Cornyn and others in the Senate Judiciary Committee have gotten the message and re-written a much improved Exemption Five.   Currently, b(5) potentially allows any agency to withhold “inter-agency or intra-agency memorandums or letters” with no limits; release of these documents is at the agency’s discretion.  Now, the Leahy-Cornyn bill stipulates that:

Kafkaesque?  Thankfully Muckrock won their appeal.

Kafkaesque? Thankfully Muckrock won their appeal.

1) Historic documents (documents created over twenty-five years ago) cannot be withheld under b(5); this parallels the successful Presidential Records Act which established that intimate conversations at the highest levels must be released twelve years after the president leaves office.1

2) And, that for contemporary documents, agencies (and courts)  now must balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents.   This balancing test now mirrors the b(6) privacy exemption that weighs such factors as the public interest, passage of time, and seniority of an individual to determine if information should be released or not.2

Of course for FOIA reforms, including the much-needed b(5) improvements, to take effect the bill must become a law.  Fortunately, the House of Representatives, spurred by the leadership of Representatives Darrell Issa (R-Ca), Elijah Cummings (D-Md), and Mike Quigley (D-Il), unanimously passed a FOIA reform bill this February with 410 votes.

Unclassified titles of OLC memos withheld under Exemption 5.  From Ryan Reilly.

Unclassified titles of OLC memos withheld under Exemption 5. From Ryan Reilly.

It’s hard to understate the importance of the work done by Issa,Cummings, Quigley and their staffers.  The House bill has many important FOIA reforms, including the codification that agencies may only withhold information if it “reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption.”

The work of the House FOIA champions is also tactically important.  Since 2005, the Senate Judiciary Committee has passed FOIA improvement bills three times without becoming law. In 2010 the Faster FOIA bill passed the entire Senate by unanimous consent, only to die in the House. A year later, the 2011 Faster FOIA bill again passed out of the Senate by unanimous consent; but this time –in an act that still stings to sunshiners– Speaker Boehner gutted it and replaced it with the last-minute, secretly-drafted “Budget Control Act of 2011″ to ensure quicker passage in the Senate.

Now, an optimist would say, may the best chance for FOIA bills passed in the House and Senate to be reconciled in conference and become law.

The National Security Archive strongly supports the Senate and House bills, and is deeply impressed that Representatives and Senators Issa, Cummings, Quigley, Leahy, and Cornyn realized the importance of substantive FOIA reform and worked together to improve the law so that –among other improvements– agencies will no longer be able to withhold information –Department diversity studies, histories of the Bay of Pigs invasion, or abuses at Veterans Affairs– merely “because they want to.”


1. Including, somewhat ironically, the recent release of Clinton staffers gossiping about Senator Leahy.

2. The bill also includes a higher bar for documents covered under the attorney-client relationship.

Declassified Diplomacy with Brazil: National Security Archive Hails Obama Administration Decision to Assist Brazilian Truth Commission

June 20, 2014
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Joe Biden and Dilma Rousseff meet at the Palacio do Planalto in Brasilia on June 17, 2014 (Photo: Ricardo Stuckert Filho /PR)

The Obama administration advanced the principle of international openness, accountability and support for human rights this week when Vice President Joe Biden transferred to President Dilma Rousseff a set of newly declassified U.S. government documents relating to Brazil’s military dictatorship, which held power from 1964 – 1985.

Visiting Brazil for the World Cup soccer competition, Biden announced that the Administration would conduct a further review and release of still secret U.S. records to help to the Brazilian Truth Commission; the commission is investigating human rights abuses under military rule and due to issue its final report at the end of 2014. The documentation, Biden stated, would be “of particular interest” to President Rousseff who was a political prisoner and torture victim herself during the military regime. (Diário do Podar, June 17, 2014)  “I hope that in taking steps to come to grips with our past we can find a way to focus on the immense promise of the future,” Reuters quoted Biden as saying. (Reuters, June 17, 2014)

Biden’s announcement comes as the U.S. and Brazil are attempting to mend fences in the aftermath of revelations that the National Security Agency had tapped President Rousseff’s cell phone and spied on other Brazilian government agencies.

Peter Kornbluh, who directs the Archive’s Brazil project, commended the Obama administration for the document donation, and hailed the Vice President’s “virtuous use of declassified diplomacy.” According to Kornbluh, “Biden’s diplomatic gesture will not only assist the Truth Commission in shedding light on the dark past of Brazil’s military era, but also create a foundation for a better and more transparent future in U.S.-Brazilian relations.”

The United States covertly supported the military coup that deposed President Joao Goulart on April 1, 1964, and maintained close ties to Brazil’s military rulers during the dictatorship.  American diplomats, intelligence operatives and military personnel reported routinely, and in detail, about regime policies – and abuses.  The Archive has obtained the release of portions of this critically important historical record through the Freedom of Information Act, and has posted a number of files relating to the U.S. role in the 1964 coup that brought the dictatorship to power.

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Dilma Rousseff and Barack Obama at the official launch of the Open Government Partnership in September 2011.

Since the inauguration of the Brazilian Truth Commission in May 2012, the Archive’s Brazil project has been pressing the Obama Administration to conduct a special declassification to assist the Commission’s investigation. With the encouragement of the National Security Archive and others, in recent years U.S. presidents have shared similar records with other governments seeking to recapture their troubled pasts, including in Chile, Guatemala and Ecuador.  (See Peter Kornbluh’s recent posting)

Rousseff’s government has been an active proponent of freedom of information.  Brazil served as co-chair of the Obama-led Open Government Partnership.  In 2012, the country implemented a new information access law, taking a further step out of the persistent shadow of two decades of military rule.

 

 

 

FRINFORMSUM 6/19/2014: The FBI’s Elite Hostage Rescue Team, the Bureau’s 83-Page Guide to Twitter Slang, and Much More.

June 19, 2014
The FBI's Hostage Rescue Team training. FBI photo.

The FBI’s Hostage Rescue Team training. FBI photo.

The Pentagon declined to name the units involved in the recent capture of September 11, 2012, Benghazi bombing suspect, Ahmed Abu Khattala, identified by the State Department as a “senior leader” of the Ansar al-Shariah militia. The October 2013 abduction of alleged al-Qaeda operative Nazih Abdul-Hamed al-Ruqai in Libya by Delta Force and members of the FBI’s elite Hostage Rescue Team (HRT), however, likely means that the HRT was involved in the raid to capture Khattala as well. HRT was “a domestic counter-terrorism unit prior to the 9/11 attacks, [which] has become a de facto Special Operations force in its own right.” An earlier Washington Post article revealed more details about HRT’s secret relationship with the Joint Special Operations Command overseas, specifically the bureau’s role in “hundreds of raids” in Iraq and Afghanistan, seen by some as a “natural evolution” for the FBI unit.

As violence in Iraq escalates after the Islamic State in Iraq and the Levant (ISIS) seized the towns of Mosul and Tikrit, the US is being forced to confront its diminished spying capabilities throughout the Middle East. According to reports, a major problem in the wake of the 2011 American troop withdrawal from Iraq is “that much of the intelligence network the U.S. built up during eight years of fighting in Iraq has been dismantled, including a network of CIA and Pentagon sources and an NSA system that U.S. officials said made available the details of every Iraqi insurgent email, text message and phone-location signals in real time.” Lt. Gen Mike Flynn of the Defense Intelligence Agency, however, ‘predicted to Congress in February that the ISIS “probably will attempt to take territory in Iraq and Syria to exhibit its strength in 2014, as demonstrated recently in Ramadi and Fallujah, and the group’s ability to concurrently maintain multiple safe havens in Syria.”’

The digital library Cryptome recently posted documents on the joint Drug Enforcement Agency (DEA)/National Security Agency (NSA) SANDKEY program, which targets drug trafficking at sea in and around the Caribbean. Considered a successful program, it is largely credited for “the reduced narco-trafficking by boat.” According to Cryptome, the program is administered by the SANDKEY committee, “which includes NSA and DEA, USCG, law enforcement, and the El Paso Intelligence Center (EPIC) which is highly involved. EPIC receives little scrutiny but is a major intelligence player in the central and south Americas and often provides cover for CIA operations.”

Senators Ron Wyden (D-OR), Mark Udall (D-CO), and Rand Paul (R-KY) jointly penned an op-ed for the Los Angeles Times denouncing the intelligence community’s transparency regarding its dragnet surveillance practices, and the watered-down version of the USA Freedom Act recently approved by the House. The Senators were unconvinced that the House version of the bill would end bulk surveillance practices and argued, “This is clearly not the meaningful reform that Americans have demanded, so we will vigorously oppose this bill in its current form and continue to push for real changes to the law.”

While the Senate Intelligence Committee is expected to begin considering cybersecurity legislation that would encourage tech companies “to exchange information on hacking attempts and cybersecurity threats with the government,” those same tech companies are banding together to fight a recent court ruling that would force Microsoft to disclose customer information stored abroad in response to a court-issued search warrant. Microsoft, joined by Verizon, AT&T, Apple, and Cisco Systems, is arguing in court that the US government has “no right” to customer data stored outside the US, and that forcing Microsoft to comply with such an order ‘threatens to rewrite the Constitution’s protections against illegal search and seizure, damage U.S. foreign relations and “reduce the privacy protection of everyone on the planet.”’

A unanimous decision by the U.S. Circuit Court of Appeals for the District of Columbia Circuit will pave the way for a British MP to seek CIA documents on British cooperation with its extraordinary rendition program. The CIA and other intelligence agencies were attempting to deny requests from MP Andrew Tyrie by citing an exemption that prevents intelligence agencies from providing information to “a representative” of a foreign government. The three-judge panel disagreed with the government’s assertions, however, arguing that Tyrie being an elected representative of the British government did not make him its agent, though further noting that “one of FOIA’s traditional exemptions prevents disclosure of classified records, [and] no classified information will see the light of day regardless of how we decide this case.”

An appeals court overturned a lower court ruling this week that would have allowed defense attorneys for Chicago bombing suspect Adel Daoud access to sealed Foreign Intelligence Surveillance Act court records. In its ruling the appeals court argued that the lower-court judge, Sharon J. Coleman, had  “disobeyed the statute” by ordering the disclosure of the FISA court records “without first determining whether the surveillance was lawfully authorized.”

More great FOIA work from MuckRock this week spurred the release of the FBI’s official 83-page guide to twitter and other social media slang, and, more importantly, delved into newly-released NSA records management documents. The documents illuminate how long the NSA retains certain documents, and, for the most part, it’s a very short period of time, making records destruction schedules read to some extent “like a guide on how to hide potentially illegal or unethical practices.” The main lesson? Don’t procrastinate sending in your FOIA requests to the NSA, whose SIGINT records are reviewed for destruction every five years, whose employee complaints are destroyed every two years, and whose “weapons and special programs file” is destroyed when no longer needed for operations, however long that may be.

Of course, NSA records don’t have to be destroyed for the agency to give FOIA requesters the run-around. The NSA recently Glomared (neither confirmed or denied) investigative reporter Jason Leopold’s request for all documents containing the phrases “sniff it all,” “know it all,” “collect it all,” “process it all,” “exploit it all,” and “partner it all,”  which were all phrases displayed on an agency slide leaked by former contractor Edward Snowden last year.

Finally this week, the Archive’s #tbt document pick! This week’s pick is honor of the recent meeting between Brazilian President Dilma Rousseff, one of the fiercest critics of the NSA’s surveillance practices, and Vice President Joe Biden. During the meeting Biden, in response to an Archive initiative and as a gesture of declassification diplomacy, “handed over to Ms. Rousseff declassified documents related to Brazil’s military dictatorship, which seized power in a 1964 coup supported by the United States.” To commemorate the gesture, our #tbt document is a Top Secret March 28, 1964, National Security Council Memcon (memorandum of conversation) discussing how the US ought to support the Brazilian military’s overthrow of populist president Joao Goulart. “The shape of the problem,” according to National Security Advisor McGeorge Bundy, “is such that we should not be worrying that the military will react; we should be worrying that the military will not react.” Read more declassified documents on the 1964 coup here and here.

Happy FOIA-ing!

FRINFORMSUM 6/13/2014: Lawsuit reveals it’s Too Complicated for the NSA to Preserve its Surveillance Records, Core Transparency Measures left out of USA Freedom Act, and Much More.

June 13, 2014
Out #tbt document pick reveals details of Che Guevara's execution.

Out #tbt document pick reveals details of Che Guevara’s execution.

In response to a lawsuit brought by the Electronic Frontier Foundation (EFF) over its surveillance practices, the National Security Agency (NSA) is arguing that retrieving data collected under Section 702 of the Amendments Act to the Foreign Intelligence Surveillance Act is “too complicated.” NSA Deputy Director Richard Ledgett wrote in a court filing that, “A requirement to preserve all data acquired under section 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and databases that contain Section 702 information,” prompting EFF legal director, Cindy Cohn, to say, “it demonstrates that once the government has custody of this information even they can’t keep track of it anymore even for purposes of what they don’t want to destroy.”

The EFF is also asking the Supreme Court to take part in a long-standing FOIA lawsuit in which the EFF is seeking the disclosure of the Department of Justice Office of Legal Counsel (OLC) memo authorizing the FBI to obtain call records without judicial approval. According to EFF Senior Counsel David Sobel, “If the Office of Legal Counsel has interpreted away federal privacy protections in secret, the public absolutely needs access to that analysis. There is no way for the public to intelligently advocate for reforms when we’re intentionally kept in the dark.”

Core transparency concerns have been neglected as Congress argues over definitions of surveillance in the USA Freedom Act. The weakening of the Act in the House, and the current fight over the bill in the Senate, has left the bill stripped of provisions initially intended to be crucial parts of it, including accurate reporting from the Foreign Intelligence Surveillance Court, providing “businesses the ability to release information regarding FISA requests, and creat[ing] an independent constitutional advocate to argue cases before the FISC.”

Microsoft is fighting a federal search warrant seeking information from a customer’s emails stored abroad. Microsoft argued in court that providing the information, currently stored in Dublin, “would violate international law and treaties, and reduce the privacy protection of everyone on the planet.” While the Justice Department argues that a Microsoft victory in the case would be “a dangerous impediment to the ability of law enforcement to gather evidence of criminal activity,” privacy advocates argue that the federal government should pursue other channels for the information, namely cooperative agreements called mutual legal assistance treaties, rather than a search warrant.

For the second year in a row, the Information Security Oversight Office (ISOO) is reporting that the number of reported new secrets is continuing to decline. ISOO also reported that, for the first time in a decade, ‘the number of “derivative classification decisions” in which previously classified information is incorporated into new records also declined.’ ISOO was unable to pinpoint a reason for the decrease, but stated, “possible contributing factors could be the recent emphasis on proper classification procedures coming from the expanded agency self-inspection requirements, the inspector-general reviews conducted in response to the Reducing Over-Classification Act, and the Fundamental Classification Guidance Reviews that all agencies conducted in 2012.”

Puma drone approved by the FAA for BP commercial flights.

Puma drone approved by the FAA for BP commercial flights.

The Federal Aviation Administration (FAA) announced Tuesday in a landmark decision that it was granting oil giant BP permission to be the first company to begin commercial drone flights over the US. Congress ordered the FAA to provide commercial drones access to US airspace by September 2015, but writing safety regulations for drones 55 pounds and lighter has slowed the agency’s efforts, and the FAA “is not expected to meet the deadline.”

Congressional leaders called the Navy’s latest plan for aircraft carrier-based drones “shortsighted.” Congress is taking issue with the Navy’s relatively conservative plan for its drones; asking contractors for reconnaissance drones that have “only limited ability to carry out bombing missions behind enemy lines.” Congress wants, on the other hand, “cutting-edge warplanes, stealthy drones that can attack key targets in contested areas… [and] could end aviation as the Navy has known it.” Congress halted funding for the Navy’s drone program until the Defense Department can complete a review.

A recent Government Accountability Office (GAO) report shows the Department of Homeland Security (DHS) is continuing to struggle “with planning and prioritizing its strategies,” and has failed to establish “strategic departmental intelligence priorities that can be used to inform annual planning decisions, such as what analytic activities to pursue and the level of investment to make, as called for in DHS guidance.” DHS agreed with both the reports findings and recommendations to fix the issues that were raised.

Abuse allegations prompted CBP to review its use of force. Photo: DON BARTLETTI/LOS ANGELES TIMES — MCT

Abuse allegations prompted CBP to review its use of force. Photo: DON BARTLETTI/LOS ANGELES TIMES — MCT

Abuse allegations and a rise in shooting deaths of unarmed civilians have prompted Customs and Border Protection (CBP), a DHS component, to fire its Internal Affairs director and review its protocol on use of force. This comes on the heels of a McClatchy report that “found that at least 21 civilians have been fatally shot by Border Patrol agents in the past four years, including a 16-year-old who was shot 10 times from behind as he walked along a street on the Mexican side of the border fence that separates Nogales, Arizona, from Nogales, Mexico.”

The House recently adopted an amendment to the FY2015 Commerce, Justice and Science Appropriations bill that will “provide a near-absolute shield for reporters against compulsory disclosure of their confidential sources.” The amendment was introduced by Rep. Alan Grayson (D-FL) and is intended ‘to be construed liberally and broadly, to effectuate its purpose of protecting journalists and their sources from any coercive action taken by the government and the legal system. Its spirit applies to other government agencies, and to litigation between private parties. The terms “information or sources” and “confidential” are to be given the widest possible construction.’

The latest posting from the Archive’s Nuclear Vault includes a newly declassified Sandia National Lab report on the 1961 Goldsboro nuclear accident. The report reveals both that by the time one of the multi-megaton Mk 39 bombs involved in the mishap hit the ground it was in the “armed” setting because of the impact of the crash, and that if the shock had not also damaged the switch contacts, the weapon could have detonated.

Finally this week, today’s #tbt document pick comes from a 2007 posting published to coincide with the auctioning off of macabre memorabilia of Che Guevara’s execution (to lone bidder and Houston bookstore owner, Bill Butler). The document is a June 3, 1975, CIA debriefing of Felix Rodriguez, aka Benton H. Mizones, who was the only CIA operative present at Guevara’s 1967 execution, and the person who informed Guevara he would be killed. After the execution, Rodriguez took Guevara’s Rolex watch and accompanied his body to the airport.

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