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Open Government Advocates Encourage Classification Reform Committee to Improve the MDR Process and “Rescue Declassification”

September 30, 2014

Last week the National Security Archive joined fellow open government advocates in providing members of the Classification Reform Committee (CRC) — the White House-led Steering Committee created in response to the Public Interest Declassification Board‘s (PIDB) 2012 report to the president and tasked with leading a systematic program of classification reform — with the open government community’s commentary on PIDB’s recommendations for transforming classification. The Archive, the Brennan Center for Justice at NYU School of Law, The Constitution Project, the Federation of American Scientists, and OpenTheGovernment.org encouraged the CRC, among other things, to expand and improve Mandatory Declassification Review (MDR) and prohibit charging exorbitant MDR fees, ensure accountability for improper classification, and rescue the declassification process by ending agency equities at 25 years and establishing a process to ensure that public interest declassification occurs.

Below is an edited version of the letter:


Dear Interagency Classification Reform Committee Members:

We appreciated the chance to meet with you earlier this month. It was a very productive exchange, and we hope it represents the beginning of an ongoing dialogue between the Classification Reform Committee (CRC) and open government advocates. As we stated in the meeting, we were early supporters of the creation of your committee, and we believe your work is vital both to national security and to the proper functioning of our democracy.

We know that one of your tasks is to consider the 2012 recommendations of the Public Interest Declassification Board (PIDB). To that end, we thought it might be helpful for you to see our commentary on the PIDB’s report. Our responses to the PIDB’s specific recommendations, which we provided to the PIDB in private communications, are attached.

In addition, at our meeting, we were heartened to hear you acknowledge that your mandate goes beyond considering the PIDB’s recommendations, and encompasses classification reform more broadly. As you perform this crucial role, we urge you to consider the following reform measures, which we all support and which we discussed at our meeting:

(1) Create a system of self-cancelling classification. We believe that the PIDB’s fifth recommendation (to create a system of self-cancelling classification) should be strengthened and expanded. We think that all classified information that is operational or based on a specific date or event should be automatically declassified when that operation or event passes without the option for additional review or exemption. This information should be specially marked “No Review” at the time of creation, and an actual automatic declassification process should be created.

Of course, we recognize that there may be cases where circumstances change and information needs to remain classified for longer than originally specified. But for these types of documents, we think the default should be automatic declassification, with a special, non-automated process available for extending the deadline under changed circumstances.

As the CRC no doubt recognizes, without creating truly automatic declassification for at least some categories of documents, there is no realistic possibility of declassification efforts keeping pace with classification in the electronic information age.

(2) Expand and improve Mandatory Declassification Review. More than any other disclosure mechanism available to the public, Mandatory Declassification Review (MDR) results in the declassification of information that can safely be released. However, the process is time-consuming — with some appeals pending before the Interagency Security Classification Appeals Panel (ISCAP) for years — and is unavailable in many instances. We therefore ask you to consider the following measures:

(a) Create an “expedited review” track. Under the Freedom of Information Act (FOIA), expedited review is available for requests where there is a compelling need. There is no parallel provision for MDR. We believe the MDR process should include an expedited review option, with priority given to requests for information that would contribute significantly to a current public debate. A particularly compelling need would justify bypassing the administrative appeals process and going straight to ISCAP, which would then work within a suitably compressed time frame.

(b) Remove arbitrary limits on requests. MDR is not available for information contained within an intelligence “operational file”; information that is the subject of pending litigation; or information required to be “submitted for prepublication review or other administrative process pursuant to an approved nondisclosure agreement.” Often, these categories of information are precisely those where the public interest in disclosure is highest. In criminal cases and habeas corpus cases, there is no practical way for attorneys to avoid litigation, and the limits on MDR can make it impossible to obtain independent review of the propriety of maintaining classification. Moreover, citizens seeking disclosure should not have to choose between a years-long, backlogged ISCAP process and Freedom of Information Act litigation with an extremely deferential standard of review. These limitations are needless barriers to timely declassification and should be removed.

cia mdr reg1

“Applicable fees will be due even if our search locates no responsive information…”

(c) Prohibit excessive fees. Agencies’ MDR fees typically mirror their FOIA fees. While the fee structures vary by agency, they generally are fair and prohibit agencies from requiring a requester to make advance payments unless an agency estimates the fees will be exorbitant. On September 23, 2011, however, the CIA posted into the Federal Register – without a notice for public comment – changes to its MDR fee regulations establishing that declassification reviews would cost requesters up to $72 per hour, even if no information was found or released. To submit a request, members of the public would have to agree to pay a minimum of $15. After thirty-six groups petitioned the CIA to repeal its regulations and one group filed suit, the CIA agreed to suspend implementation pending the lawsuit’s outcome. The CIA’s attempt in this instance to price requesters out of filing requests is antithetical to the principles of open government, or a sustainable system of classification.

(3) Ensure accountability for improper classification. Under the current system, the person charged with reviewing the propriety of a classification decision (for instance, if an authorized holder brings a challenge) may be the very Original Classification Authority who classified the information in the first place. Such obvious conflicts of interest weaken existing oversight mechanisms.

More broadly, there is no regular system in place for agencies to monitor classification decisions and to impose accountability for overclassification that is routine, deliberate, or grossly negligent. We recognize that original classification decisions are often judgment calls that are difficult to second-guess. But in those instances in which original classification decisions are clearly improper, accountability is critical. Moreover, improper uses of derivative classification authority should be relatively easy to identify.

The CRC therefore should consider measures, possibly in the nature of pilot projects, to implement accountability for overclassification in appropriate cases. (The Brennan Center suggested one model in its 2011 report Reducing Overclassification Through Accountability.)

(4) Clarify limits on classification of “intelligence sources and methods.” The National Security Act of 1947 prohibits the disclosure of “intelligence sources and methods.” Unfortunately, the statute does not define these terms. Construed as broadly as possible, “sources” could include newspaper articles and other open-source materials, while “methods” could include the simple fact that intelligence agencies rely on human intelligence. Such an interpretation would lead to absurd results and would serve no valid national security purpose, thus
violating basic principles of statutory construction.

A sensible working definition of “intelligence sources and methods” is in order. At a minimum, the president should specify that he interprets these terms, as used in the National Security Act, to include only those techniques the disclosure of which reasonably could be expected to harm national security.

(5) Rescue declassification. Notwithstanding the efforts of the National Declassification Center (NDC), the current declassification system is hopelessly slow and inefficient, errs significantly on the side of continued classification, and is simply no match for the tidal wave of classified electronic information that will pour into the National Archives in coming years. In addition to creating a system of self-cancelling classification for certain categories of records, as discussed above, CRC should consider the following measures:

(a) End all agency equities at 25 years. The best mechanism to fundamentally transform classification is already required under the president’s executive order on classification; unfortunately, it is not followed by declassification authorities. With limited exceptions, Executive Order 13526 mandates that, “[u]pon reaching the date or event [specified for declassification], the information shall be automatically declassified.” But instead, classified material that reaches the declassification date is referred to every agency that has potential “equities” in the information for line-by-line review, stalling declassification for years at a time (and sometimes indefinitely).

President Obama instructed the NDC in his December 29, 2009, memorandum on Implementation of the Executive Order, “Classified National Security Information,” that “further referrals of these records [records of permanent historical value] are not required except for those containing information that would clearly and demonstrably reveal [confidential human sources or key WMD design concepts].”1 Despite this memo, the referral equity process for these historic documents has continued, rather than the President’s intended, streamlined process. The CRC at a minimum should ensure enforcement of the president’s order. It also should recommend that all agency equities end at 25 years, at which time the sole responsibility for declassification should lie with NDC and NARA.

(b) Speed up the RD and FRD review process. The 1999 Kyl-Lott amendments that require the Department of Energy to review all information “not highly unlikely to contain RD/FRD” (Restricted Data and Formerly Restricted Data) throughout all U.S. National Archives and presidential libraries, and mandate that all agencies do a “Kyl-Lott” review for RD and FRD before declassifying documents in the future, has dramatically impeded the timely declassification of historically important records. The key to speeding up this process is for the administration and agency leadership to empower declassifiers to be less reticent about labeling documents as “highly unlikely to contain” RD or FRD, and, when RD/FRD review is truly necessary, to conduct it at the same time as declassification review.

(c) Establish a process to ensure that public interest declassification occurs. As the General Counsel for the Director of National Intelligence recently urged,2 classifiers and declassifiers should make full use of the authority granted in Executive Order 13526 to declassify information when “public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”3 To that end, the CRC should take steps to develop and institutionalize a process to ensure that the public interest is considered during classification and declassification decisions.

***

We hope that the above recommendations, along with the attached response to the PIDB’s report, are useful. We are happy to meet with you to discuss these further, and we look forward to being in touch as you move forward with your work.

 

Sincerely,
Brennan Center for Justice at NYU School of Law
The Constitution Project
Federation of American Scientists
National Security Archive
OpenTheGovernment.org


1. [Keynote Remarks as Prepared for Delivery: Mr. Robert S. Litt, General Counsel, ODNI, American University
Washington College of Law: Freedom of Information Day Celebration, March 18, 2014,
http://icontherecord.tumblr.com/post/79998577649/as-prepared-for-delivery-remarks-of-odni-general.%5D

2. [Keynote Remarks as Prepared for Delivery: Mr. Robert S. Litt, General Counsel, ODNI, American University
Washington College of Law: Freedom of Information Day Celebration, March 18, 2014,
http://icontherecord.tumblr.com/post/79998577649/as-prepared-for-delivery-remarks-of-odni-general.%5D

3. [Executive Order 13526- Classified National Security Information, December 29, 2009,
http://www.whitehouse.gov/the-press-office/executive-order-classified-national-security-information.%5D

DOE to Review Classification Guidance After Retroactively Classifying Article and Firing Employee Who Wrote It, Problems Mounting at the DHS, and Much More: FRINFORMSUM 9/25/2014

September 25, 2014
Los Alamos national lab in New Mexico. Photo courtesy of lanl.gov.

Los Alamos national lab in New Mexico. Photo courtesy of lanl.gov.

The Department of Energy (DOE) announced it will review its classification guidance for publications after a Center for Public Integrity article, which highlighted the bizarre case of ex-Los Alamos lab contractor James E. Doyle, brought the National Nuclear Security Administration (NNSA) some unwanted attention. Doyle was fired from his 17-year position at Los Alamos earlier this year after DOE officials retroactively classified an article he wrote that was critical of current nuclear policy. The DOE retroactively classified the article despite the fact that Doyle submitted it for pre-publication review even though lab rules didn’t require him to do so and the review found the article contained no classified information. NNSA Administrator Gen. Frank Klotz said that in addition to reviewing classification standards, “I have asked the Department’s Inspector General to examine whether Mr. Doyle’s termination resulted in whole or in part from the publication of an article he authored.”

The Prowler units perimeter.  Image:  Carol Leonnig and Peter Wallsten/The Washington Post

The Prowler units perimeter. Image: Carol Leonnig and Peter Wallsten/The Washington Post

The director of the Secret Service, Julia Pierson, will appear before Congress next week and attempt to explain how a man the Secret Service interviewed twice this summer and deemed not to be a security threat was able to jump the White House fence and make it inside the residence before being apprehended. While the fence surrounding the White House has long been known to be vulnerable to jumpers, the greater problem appears to be the systemic ones at the Secret Service and the Department of Homeland Security (DHS). In May of this year The Washington Post revealed that members of the Secret Service’s elite Prowler unit, which is tasked with patrolling the White House, were ordered by the agency director to abandon their post to watch his personal friend for two months in 2011. The detail, known as Operation Moonlight, sent the agents to a Maryland suburb, nearly an hour’s drive from the White House. The agents involved were concerned about the legality of their re-assignment, and some reported the issue to the DHS, the Secret Service’s parent agency. According to The Post, “People familiar with the operation said a Senate committee’s recent finding that the former DHS ­inspector general softened and delayed investigations  — particularly those critical of administration officials — renewed frustration that the issue may have not been properly investigated.”

In the wake of a recent Government Accountability Office (GAO) report that found that both the DHS and the Department of Defense do not know how many of their employees have had their security clearances revoked (the DOD in particular has one million contractors eligible for security clearances that aren’t on its payroll), another GAO report is faulting the DHS for its mismanagement of funds building its new headquarters. According to the House Committee on Homeland Security, “The project is over budget and schedule by $1 billion and 10 years.”

The Washington Post recently reported that “An exodus of top-level officials” at DHS is another systemic problem at the agency. According to data obtained by the Office of Personnel Management, annual departures from DHS have increased 31% from 2010 to 2013, compared to 17% across the government, and senior executive departures were up 56% in 2013 from the year before. The exodus itself is blamed on low morale, a dysfunctional work environment, and more lucrative offers in the private sector (particularly in cybersecurity). These vacancies have resulted in the slow implementation of key initiatives and compromised security operations. Another casualty of DHS’s working environment might be the clarity of the agency’s mission itself. When a leading official asked a gathering of high-level DHS officials in 2010 who was in charge of the government’s counterterrorism role, “Five people raised their hands.”

Analysts gathered at the Paley Center for Media earlier this week and asked if President Obama, who has presided over more prosecutions of leakers than all past presidencies combined, can strike a balance between preserving freedom of the press and protection national security. Panelists included former NSA general counsel and CIA adviser Robert Dietz, and The Washington Posts’ Pulitzer Prize-winning columnist, Barton Gellman. The panel seemed to be unable to strike a balance itself when, “Responding to a video clip of the late Washington Post Managing Editor Howard Simons suggesting that it’s the government’s job to keep secrets and the reporter’s job to ferret them out, Dietz declared: “It’s the bank’s job to keep your money. It is the burglar’s job to break it out.”

CIA director John Brennan apologized to Sen. Feinstein after an IG report showed the agency spied on Senate staff, then backtracked saying there was no "memorandum of agreement." Reuters photo.

CIA director John Brennan apologized to Sen. Feinstein after an IG report showed the agency spied on Senate staff, then backtracked saying there was no “memorandum of agreement.” Reuters photo.

CIA director John Brennan is continuing to express frustration in his dealings with the Senate Intelligence Committee in the wake of his refusal to tell the Committee who authorized CIA employees to spy on their staff while it worked on a report highly critical of the CIA’s torture program. Last week at an intelligence conference Brennan said, “When the inspector general determined that based on the common understanding between the CIA and the [committee] about this arrangement of computers, that our officers had improperly accessed it, even though these were CIA facilities, CIA computers, and CIA had responsibility for the IT integrity of the system, I apologized to them for any improper access that was done, despite the fact that we didn’t have a memorandum of agreement.”

A recent Politico article provides an interesting, detailed account of how the PREDATOR drone failed its first big test in 2001 to kill Mullah Omar in Afghanistan. To learn more about the drone’s origins and its transition from a little-known DOD project to becoming “best known as the CIA’s primary weapon in the war against Al Qaeda,” check out the latest posting form the National Security Archive, which highlights documents obtained by Richard Whittle that both detail the Predator’s origins and confirm key facts about its transformation into the first armed drone used to “stalk and kill individual enemies by remote control at intercontinental range.”

Finally this week, our #tbt document pick is chosen with the current U.N. meeting on climate change in mind. The document is an unclassified September 15, 1997, memo for the President from Gene Sperling, Katie McGinty and Daniel Tarullo [Assistant to the President for International Economic Affairs]. The memo lays out a set of “constituent constraints” for President Clinton that would challenge the US’s drafting a climate change policy:

1) An environmental community that is pressing for an aggressive position on reducing greenhouse emissions.
2) International negotiations that have focused on fairly aggressive approaches, meaning a less aggressive U.S. approach would have adverse diplomatic consequences.
3) Economic analyses that recognize the severity of the problem but hold that a more gradual approach can secure similar goals at much lower cost; and
4) Domestic political pressure from major corporations and labor unions to reject a large energy tax increase and aggressive approaches as too costly, as well as to insist on significant developing country commitments to reducing global greenhouse emissions.

Bob Wampler notes, “The challenge facing the Clinton White House is that while the first two constraints are somewhat consistent, as are the second two, the first set is at odds with the second set. ‘An aggressive approach would play well internationally and with environmental groups, but would be sharply criticized by corporations, labor unions, and the Hill. A more gradual approach, however, would garner some support from domestic interests but would be met with derision abroad and by environmental constituents.’”

Happy FOIA-ing!

The FOIA Request that Cost Agency Employee Jeffrey Scudder His Job Finally Results in CIA Posting Trove of Studies in Intelligence Articles

September 22, 2014
Jeffrey Scudder shares his story about how his career unraveled. (Theresa Poulson/The Washington Post)

Jeffrey Scudder shares his story about how his career unraveled. (Theresa Poulson/The Washington Post)

In response to a hard-fought FOIA lawsuit brought by former agency employee and IT specialist, Jeffrey Scudder, the CIA has posted a collection of 249 unclassified and declassified Studies in Intelligence articles to its website.

Scudder, then a project manager for the CIA’s Historical Collections Division, filed a FOIA request in 2o07 for 419 Studies in Intelligence articles after discovering “a stack of articles, hundreds of histories of long-dormant conflicts and operations that he concluded were still being stored in secret years after they should have been shared with the public.” During the process of filing the request, Scudder was “confronted by supervisors and accused of mishandling classified information while assembling his FOIA request. His house was raided by the FBI and his family’s computers seized. Stripped of his job and his security clearance, Scudder said he agreed to retire last year after being told that if he refused, he risked losing much of his pension.”

Despite the agency’s harassment, Scudder carried on with his FOIA request, inevitably filing a FOIA lawsuit for the documents’ release. As part of his initial request, Scudder asked that the documents be released in electronic format – the form that they were already in. The CIA, however, continued its common practice of refusing to release soft copies of its records – ostensibly for security reasons – and told Scudder he could only have hard copies of the articles, which would cost Scudder twice as much. Scudder sued the agency, contending that the CIA was frustrating his efforts to obtain the documents –and charging him double for doing so. District Court judge Beryl Howell agreed with Scudder, writing that “Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

The CIA changed course after Judge Howell’s finding, found a “creative solution” to the problem, and posted 249 records online (with the remaining 170 documents withheld in full).

Since Scudder’s case became public, the CIA has stated that it “does not retaliate or take any personnel action against employees for submitting [FOIA] requests or pursuing them in litigation,” and has, citing budget cuts, disbanded its Historical Collections Division.

While the silver lining to the CIA’s attempt to both conceal historically significant documents and intimidate Scudder is that many of the documents are now publicly available, the fact remains that many of the documents — which should have been publicly available in the first place — were posted with unnecessary redactions. Matthew Aid, for example, already possesses two fully declassified and unredacted articles that the CIA recently posted, with heavy redactions, to its website. According to Aid, “This is a typical case of the left-hand not knowing what the right-hand is doing, and just further demonstrates that the CIA’s FOIA system is urgently in need of a major overhaul.”

Below are 20 intriguing articles from the CIA’s release that caught our attention. Please comb through them – and the others – and tell us what’s worthy of note in them!

FOIA Reform Bill on Senate Judiciary Agenda, State Secrets, and Much More: FRINFORMSUM 9/18/2014

September 18, 2014
The Senate Judiciary added the FOIA Reform bill to its agenda this week. Pictured: Chuck Grassley (R-IA)(L) and Chairman Patrick Leahy (D-VT)(R).

The Senate Judiciary added the FOIA Reform bill to its agenda this week. Pictured: Chuck Grassley (R-IA)(L) and Chairman Patrick Leahy (D-VT)(R). Image courtesy of Senate Judiciary website.

The Senate Judiciary Committee added the FOIA Improvement Act of 2014, S.2520, to its agenda this week. The much-needed bill addresses the runaway b(5) exemption, strengthens the FOIA ombuds OGIS, promotes more proactive online access to government information, and prevents agencies from charging some FOIA fees when they miss their deadlines. As OpentheGovernment.org’s Amy Bennett noted, S.2520 “would help ensure that historical records are available on a timely basis [and] would stem the worst abuses by allowing a court to weigh in where necessary to make sure records that would show waste, fraud, abuse, or illegality are released.” If the bill is held over for a week, which is standard practice for the Judiciary Committee, it means that Senators Patrick Leahy (D-VT) and John Cornyn’s (R-TX) bipartisan FOIA reform bill will be first up on the Committee’s agenda for the lame duck session.

The Department of Justice (DOJ) has invoked the state secrets privilege in a private defamation lawsuit brought by Greek shipping mogul Victor Restis against United Against Nuclear Iran. The group consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” The DOJ initially intervened in the suit, which Restis brought after the group accused him of violating sanctions by exporting oil from Iran, to shield the group’s files, including its donor list. Last week, however, in what Mr. Restis’ lawyer, Abbe Lowell, said “There is no precedent, literally,” for the government doing, it asserted the state secrets privilege for undisclosed reasons and asked the court to dismiss the proceeding. As Steven Aftergood points out, however, “The government acknowledged in its privilege memorandum that its proposal to dismiss the case on state secrets grounds was unfair to the parties, but it said that it was the lesser of two evils.”

In another state secrets case, a federal judge said this week that “he would require in camera review of documents that the government says are protected by the state secrets privilege. The issue arose in the case of Gulet Mohamed v. Eric Holder, challenging the constitutionality of the ‘no fly’ list.” The court disagreed with the government’s argument that it would be “inappropriate” for the court to verify the documents in order to determine the validity of the privilege, with Judge Anthony J. Trenga of the Eastern District of Virginia noting in a footnote “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring. See Reynolds v. United States, 345 U.S. 1 (1953), in which it became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets….”

A recently declassified – albeit heavily redacted – Foreign Intelligence Surveillance Court (FISC) order is raising concerns over the scope of First Amendment protections. According to reporting by the Washington Post, Judge John D. Bates’ February 2013 order suggests “an American can be investigated as part of a terrorism investigation when he has done nothing more than exercise his First Amendment right of expression — as long as that speech shows sympathy for the terrorist group’s illegal activities.” When the DOJ was asked if Section 215 of the Patriot Act permits the government to obtain American citizens’ records when their free speech sympathizes with terrorism or is somehow “subject[] of a wider investigation,” a DOJ spokesperson said “It’s a hypothetical.”

The FISC recently approved the government’s latest request to continue the National Security Agency’s (NSA) mass surveillance of Americans’ call records for another 90 days. This is the third time the FISC has approved the government’s request to continue the NSA program since President Obama announced in January that he would reform it. The current order is set to expire on December 5, 2014.

The Google Transparency Report showed a continued increase in govt requests for information. Image courtesy of Techspot.

The Google Transparency Report showed a continued increase in govt requests for information. Image courtesy of Techspot.

Google’s latest transparency report, covering statistics from the first half of 2014, shows that US government requests for Google users’ data shot up 19% from the previous reporting period covering the latter half of 2013, and were up a whopping 250% from 2009. The requests from the US outpaced Google’s worldwide requests, which increased 15% and 150% respectively for the same time periods. While Google stated it did not always comply with the orders, recently disclosed court documents from Yahoo’s fight against government requests for its users’ data show a compelling reason why a tech company would comply. The documents reveal that in 2008 the government threatened to fine Yahoo a quarter of a million dollars a day if it didn’t surrender its users’ online information.

There is renewed tension between the CIA and the Senate Intelligence Committee in the wake of CIA director John Brennan’s refusal to tell the Committee who authorized agency employees to spy on Senate staff while it worked on a report highly critical of the CIA’s torture program. In August, and in direct contradiction to the Brennan’s previous claims, a CIA Inspector General (IG) report showed the agency did spy on Senate Intelligence Committee staff, finding specifically that five agency employees – two lawyers and three IT specialists – “improperly accessed” a database committee staff was using to complete its five-year, $40 million report. Brennan apologized to committee chairwoman Sen. Dianne Feinstein (D-CA) after the IG report was made public, though was reported to have “raised his voice at Feinstein” over the spying during a closed-door meeting latest week.

In a special posting for Unredacted, the University of Washington’s Trevor Griffey examines how flooding of the FBI archives in Alexandria, Virginia destroyed hundreds of thousands of pages of files related to Civil Rights movement history. Griffey notes, “Such reckless and inconsistent file implementation of records management standards, resulting in tragic and unnecessary destruction, demonstrates that the FBI is not the proper custodian of its own historic archive… the recent massive archival losses from flooding, combined with the FBI’s inconsistent approach to archival preservation, suggests the need for much greater oversight by the National Archives before more historically valuable files are destroyed.”

Some of the key players in the Nixon administration debate on the Israeli nuclear program standing outside the Pentagon on 14 June 1969, for Flag Day ceremonies. Shown from left to right are JCS Chairman Earle Wheeler, President Richard Nixon, and Secretary of Defense Melvin Laird. National security adviser Henry Kissinger can be seen further to the right. (Photo source: National Archives, Still Pictures Division, RG 342B, box 1156)

Some of the key players in the Nixon administration debate on the Israeli nuclear program standing outside the Pentagon on 14 June 1969, for Flag Day ceremonies. Shown from left to right are JCS Chairman Earle Wheeler, President Richard Nixon, and Secretary of Defense Melvin Laird. National security adviser Henry Kissinger can be seen further to the right. (Photo source: National Archives, Still Pictures Division, RG 342B, box 1156)

Archivist William Burr’s latest posting from the Nuclear Vault, “Israel Crosses the Threshold II: The Nixon Administration Debates the Emergence of the Israeli Nuclear Program,” provides new documentation on how the Nixon administration “looked the other way” while Israel developed its first nuclear weapons. According to newly declassified documents, the DOD’s Paul Warnke warned in early 1969 that the Israeli nuclear program was “the single most dangerous phenomenon in an area dangerous enough without nuclear weapons,” though Nixon would ultimately override his concerns, and “the near consensus of senior U.S. officials,” regarding the threat posed by the Israeli program.

Finally, this week’s #tbt document pick – and recently picked up by Reddit’s TIL feed – is a March 1967 CIA report entitled “Views on Trained Cats [Redacted] for [Redacted] Use,” more popularly known as the CIA’s “acoustic kitty” project. In what the CIA described as a “remarkable scientific achievement,” though later conceding it was not a “practical eavesdropping device,” the CIA stuffed a live cat with electronic spying equipment and attempted to train it to become a Cold War spy. After the cat had batteries and wires placed inside of it and an antenna inserted into its tail, several CIA agents took it outside to a park to see if it would, well, work. The cat was promptly hit by a taxi instead. The project cost 15$ million.

Happy FOIA-ing!

Senate Judiciary Poised to Act on FOIA Reform Bill

September 17, 2014
Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R).  (Photo by Mark Wilson/Getty Images)

Sen. John Cornyn (R-TX) (L) and Chairman Patrick Leahy (D-CT) (R). (Photo by Mark Wilson/Getty Images)

The Senate Judiciary Committee took a big step towards addressing much needed FOIA reform this week when it added the FOIA Improvement Act of 2014, S.2520, to its agenda. If the bill is held over for a week, which is standard practice for the Judiciary Committee, it means that Senators Patrick Leahy (D-VT) and John Cornyn’s (R-TX) bipartisan FOIA reform bill will be first up on the Committee’s agenda for the lame duck session.

Sens. Leahy and Cornyn are both long-time FOIA advocates, and their current efforts to strengthen the FOIA includes several important fixes geared to dislodge agencies from their continued intransigence and refusal to embrace a “presumption of disclosure.”

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

The most important thing the FOIA bill addresses is the misapplication of the b(5)exemption, which  potentially covers any “inter-agency or intra-agency memorandums or letters.” While Congress intended it to be applied sparingly, the exemption is nicknamed “withhold it because you want to ” due to its expansive scope and discretionary application. Earlier this year the The Associated Press found, and the Department of Justice’s Office of Information Policy (OIP) eventually confirmed, that the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government. B(5) was used to hide, among other things, the names of Veterans Affairs Administration hospitals where 19 veterans died due to medical screening delays, historically significant documents on the 20-year-old Rwandan genocide, a 30-year-old history of the 53-year-old Bay of Pigs invasion, and the DOJ’s Office of Legal Counsel opinions concerning highly controversial programs, including enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance.

Melanie Pustay, Director of the Department of Justice Office of Information Policy.  Responsible for enforcing FOIA throughout the US government.  From the US DOJ website.

Melanie Pustay, Director of the Department of Justice Office of Information Policy, is responsible for enforcing FOIA throughout the US government — for better or for worse. From the US DOJ website.

Further evidence that the b(5) exemption needs special Congressional attention was provided by none other than OIP director Melanie Pustay, who testified before the Senate Judiciary Committee this March that the increase of b(5) applications was due to an increase in invoking b(5) for “attorney work product and attorney client information, which is not subject to discretionary release like deliberative process is.” (emphasis added.) In so testifying, Pustay – whose office is in charge of ensuring agencies comply with and fully implement the FOIA, the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines – contradicted her own agency’s guidance circulated after the Attorney General called for more discretionary releases, which states that both “attorney work product” and “attorney client information” are subject to discretionary release.

To address the runaway b(5) exemption, the Leahy-Cornyn bill sets a 25-year sunset for b(5) claims and adds a public interest balancing test to the requirements for agencies to invoke the exemption. As OpentheGovernment.org’s Amy Bennett notes, “this narrowly tailored change to the law would help ensure that historical records are available on a timely basis. It would stem the worst abuses by allowing a court to weigh in where necessary to make sure records that would show waste, fraud, abuse, or illegality are released.”

Given government-wide overuse of the b(5) exemption, it’s well worth noting that on September 3, 2014, the Department of Defense — one of the largest agencies in the federal government — issued fully recodified, legally enforceable FOIA regulations that state (Sec 286.4) “It is DoD policy, pursuant to 32 CFR part 285, to promote government transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA and responding promptly to FOIA requests in a spirit of cooperation.” This is a great start and kudos to the DOD, but it is unlikely many other federal agencies would voluntarily follow suit without Congressional prodding.

In addition to addressing the b(5) exemption, S.2520 strengthens the FOIA ombuds Office of Government Information Services (OGIS), promotes more proactive online access to government information, and prevents agencies from charging some FOIA fees when they miss their deadlines. The bill also directly addresses regulatory shortcomings exposed by three National Security Archive government-wide FOIA audits.

Not quite a nailbiter.

The House unanimously passed a similar FOIA reform bill earlier this year.

Given that the House unanimously passed a similar bipartisan FOIA reform bill, cosponsored by Representatives Darrell Issa (R-CA), Elijah Cummings (D-MD), and Mike Quigley (D-IL), earlier this year, transparency advocates have good reason to be hopeful. For the benefits of S.2520 to be felt, however, it must pass several more hurdles for it to become law. You can help the bill’s chances by contacting your Senators to encourage them to support it, or by writing editorials and Letters to the Editor for your local paper.

Background Material and Further Reading

Archival Neglect: Flooding of FBI Archives Destroyed Hundreds of Thousands of Pages of Files Related to Civil Rights Movement History

September 16, 2014
COINTELPRO

COINTELPRO

Special to Unredacted by Trevor Griffey, PhD

This September 2nd marked the 50th anniversary of the launch of the Federal Bureau of Investigation’s (FBI) only major counterintelligence program (or COINTELPRO) to “to expose, disrupt and otherwise neutralize” right-wing organizations.

The FBI is often known for its opposition to the left rather than its opposition to the right. Ten of the its eleven COINTELPRO operations between 1956 and 1971 illegally sought to destroy the personal and professional lives of those who participated in left wing and anti-racist organizations— from the Communist Party to the Black Panther Party, from American supporters of Fidel Castro to proponents of Puerto Rican independence, from the Nation of Islam to Martin Luther King.

But the FBI’s COINTELPRO against “various Klans and hate organizations” marked an exception. Following years of criticism by civil rights activists who claimed that the FBI was not doing enough to prevent racial terrorism in the South, amidst the revival of the Third Ku Klux Klan, and at the height of the FBI’s investigation of the murder of three civil rights activists in Mississippi in June of 1964, the FBI initiated a campaign to destroy 19 different offshoots of the Third Ku Klux Klan, as well as nine other white nationalist organizations, including the American Nazi Party.

Within a year of first launching its COINTELPRO, the FBI estimated later that roughly 600 of the Klan’s 10,000 members were FBI informants. By 1967, according to a report first disclosed by the Church Committee, the FBI had “set up an entire klavern of the Klan composed of Bureau informants, and that they paid the expenses of setting up the organization” in order to produce a rivalry between an authentic Klan chapter and one under the FBI’s control.[i] The counterintelligence program’s architect, FBI Domestic Intelligence Director William Sullivan, claimed in his posthumously published memoir that “the counterintelligence techniques we brought to our fight against the Klan have been thoroughly damned by the press and the public, but our successful use of these techniques is what finally broke them up.”[ii]

A few scholars— most notably John Drabble and David Cunningham—have written about the FBI’s campaign to destroy the white nationalist movement in the 1960s. But popular memory of it remains low, with most scholarship and popular discussion about COINTELPRO focused on the FBI’s campaigns to disrupt the left.

To what degree were FBI agents and undercover informants in the Klan complicit in hate speech and hate crimes in the 1960s? What effect did FBI repression of the Klan during the 1960s have on the history of the right and on American politics more generally? These and other questions related to the history of the FBI’s COINTELPRO against the Klan deserve further investigation.

But unfortunately, valuable documents through which these and other questions could be investigated were destroyed last year during Hurricane Sandy. In a huge loss from a one-of-a-kind archive that had never been released to the public, somewhere between one fifth and one third of the FBI’s 62,000 page Birmingham, Alabama field office file on the United Klans of America (UKA) was destroyed by flooding of FBI archives in Alexandria, Virginia, according to documents that the FBI released last month to the web site Muckrock.org.

The FBI's response to MuckRock's request for documents on archival damages due to flooding.

The FBI’s response to MuckRock’s request for documents on archival damages due to flooding.

The UKA was a major target of the FBI’s COINTELPRO against white nationalist organizations. And as the “office of origin” for the FBI’s investigation of the UKA, the Birmingham field office played an essential role in the campaign. The Birmingham file on the UKA (file number 105-BH-722) likely contained voluminous materials that cannot be found in other FBI files— including transcripts of conversations recorded using wiretaps and bugs, informant reports, handwritten agent notes, and documentation of the secret society’s membership throughout the United States.

I submitted a FOIA request for a copy of the Birmingham file four years ago. In response, the FBI claimed that it could not locate the file. When I appealed, the Department of Justice’s Office of Information Policy forced the FBI to acknowledge the existence of the 62,000 page file, but the FBI then asked me to pay $2,000 for its declassification. Unable to afford the cost, I passed information about the file to a non-profit that specializes in researching white nationalist organizations. That organization submitted a FOIA request, but was denied a fee waiver. During the subsequent debate over whether to declassify the file for free, the archive containing the file flooded, and a significant part of the file is now lost to historians forever.

Millions of Pages of Files Destroyed

A page from the 630 pages of FBI spreadsheets on damaged files released to MuckRock.

A page from the 630 pages of FBI spreadsheets on damaged files released to MuckRock.

The FBI’s file on the UKA was just one of the thousands of FBI files damaged by flooding during Hurricane Sandy. The FBI provided Muckrock.org with an incomplete list of more than 76,000 volumes of files destroyed by flooding at its Alexandria archive last year, and plans to release more lists in the future. Each volume contained between 1-250 pages of documents, making it likely that millions of pages of documents were lost. And this doesn’t even include the 3,000+ cubic feet of files destroyed in the FBI’s Moonachie, New Jersey facility during the hurricane.

Though it’s difficult to assess the full scope of the damage based on the limited information released so far by the FBI, it’s clear that thousands of pages of files of significance for the study of civil rights movement history were damaged, including:

  • Forty-one volumes (likely over 8,000 pages) from the FBI’s main headquarters file on the National Negro Labor Council (file number 100-HQ-367632)— one of the most important civil rights organizations of the early 1950s, which was driven out of existence by anticommunist pressure.
  • Twenty-four volumes (almost 5,000 pages) from the FBI’s Chicago field office file on Claude Lightfoot (file number 61-CG-867), a prominent black communist for almost 60 years.
  • Nineteen volumes (almost 4,000 pages) from the FBI’s Memphis field office file on the Nation of Islam (file number 105-ME-160).
  • Eight volumes (roughly 1,500 pages) from the FBI’s massive Detroit field office general file on civil rights issues from the 1940s through the mid-1960s (file number 44-DE-00).

Some other files of significance to the study of the left include almost 3,000 pages from the FBI’s main headquarters file on peace activist David Dellinger (100-HQ-384411), and 1,500 pages from the FBI’s Chicago field office on the National Labor Federation (100-CG-55510). The list also documents damage to 300 volumes of Chicago field office files on illegal gambling (182 series), and the destruction of an astonishingly large file (perhaps 300,000 pages) on an unknown topic related to foreign counterintelligence or anti-racist nationalism produced by the FBI’s San Francisco field office (105-SF-16284).

Archival Neglect

The destruction of such historically significant files raises a number of serious questions about the FBI’s archival practices.

One obvious question is why FBI archives were susceptible to flooding, and whether the flooding has exposed weaknesses in the FBI’s records management practices more broadly.

A more important question, however, is: why are these archives in the possession of the FBI at all? Why does the FBI continue to retain millions of pages of historically significant files, many of which are over 50 years old, that have no relevance to its contemporary law enforcement mission? Why have these files not already been transferred to the National Archives?

Many of the historically significant files destroyed in the Virginia flooding included a series of files that were supposed to have been transferred to the National Archives during George W. Bush’s second term— “44 series” files on the civil rights movement. Almost ten years later, these files should not still be in the FBI’s possession.

Other files of major significance to the study of racial justice, the left, and U.S. foreign policy— particularly the FBI’s 105 series files, which include hundreds of thousands of pages of files on the Black Panther Party— remain in the FBI’s possession and decades away from ever being declassified or transferred to the National Archives.

These and other historically significant files that sit in secret FBI warehouses are vulnerable to more than just flooding. Decades-old standards for determining historical significance that tend to treat local history as unimportant, combined with wide latitude granted to FBI records management staff, have resulted in tragic and reckless destruction of many historically significant files.

Field office files are especially vulnerable to being destroyed. For example, there is almost no collection of FBI files of greater popular interest than the FBI’s files on its counterintelligence program against the black freedom movement in the late 1960s. But instead of preserving its field office files on this illegal program in their entirety, the FBI has been profoundly inconsistent. When the FBI assessed 29 field office files from this COINTELPRO for transfer to the National Archives between 2005 and 2008, it only transferred 14 files. It destroyed 12 others files, and withheld 3 from the National Archives.

Such reckless and inconsistent file implementation of records management standards, resulting in tragic and unnecessary destruction, demonstrates that the FBI is not the proper custodian of its own historic archive. This is probably unsurprising. After all, the FBI is led by law enforcement officers with an investment in secrecy, not librarians committed to transparency. But the recent massive archival losses from flooding, combined with the FBI’s inconsistent approach to archival preservation, suggests the need for much greater oversight by the National Archives before more historically valuable files are destroyed.

Trevor Griffey is a Lecturer in U.S. History and Labor Studies at the University of Washington’s Bothell and Seattle campuses. A co-founder of the Seattle Civil Rights and Labor History Project, he is currently working on publishing an online archive of FBI files on the black freedom movement in the 20th century.

[i] Church Committee Hearings, Volume 6 (1976), p. 144 http://archive.org/details/Church-Committee-Hearings-Volume6-FBI

[ii] William C. Sullivan and Bill Brown, The Bureau: My Thirty Years in Hoover’s FBI (New York: Norton, 1979), p. 128

The Able Archer 83 Onsite Collection Now Available to Researchers

September 12, 2014

sourcebookpageBy Elena Burger

The National Security Archive is pleased to announce the release of Nate Jones’s full (to date) collection of Able Archer 83 documents. In addition to the documents posted online in the Archive’s Able Archer Sourcebook, the physical collection, which is now available to researchers, contains new primary and secondary sources related to the NATO war game-turned nuclear war scare that played out across Europe in November of 1983, reverberations from which were felt long after the conclusion of the military exercise.

Some of the most interesting documents in the collection concern not only the lead-up to the military exercise, but its ramifications. Consider the December 30, 1983, CIA memo – drafted less than a month after Able Archer was completed –, titled “Soviet Thinking on the Possibility of Armed Confrontation with the United States.” In it, the CIA’s Office of Soviet Analysis comments on Moscow’s perceived feelings regarding US foreign policy. An excerpt states that US intelligence believed, “The [the Soviets] have charged that the United States is pursuing a nuclear first strike capability and preparing to unleash nuclear war as a means to crushing communism.”

"Soviet Thinking on the Possibility of Armed Confrontation with the United States," Box 1.

“Soviet Thinking on the Possibility of Armed Confrontation with the United States,” Box 1.

Another source highlights the fear felt by Soviet officials at the time comes from a declassified State Department memo regarding Andrie Gromyko’s January 13, 1984, speech in Stockholm, Sweden. In the January 18, 1984, memo, Senior Deputy Assistant Secretary of State John H. Kelly writes to Deputy Secretary of State Lawrence Eagleburger on the strained US-Soviet relationship –while being careful not “to slam the door shut on renewed START and MBFR (Mutual Balanced Force Reduction)” negotiations.

January 18, 1984, memo from Senior Deputy Assistant Secretary of State John H. Kelly to Deputy Secretary of State Lawrence Eagleburger, Box 1.

January 18, 1984, memo from Senior Deputy Assistant Secretary of State John H. Kelly to Deputy Secretary of State Lawrence Eagleburger, Box 1.

 An October 30, 1985, memo reveals more about the key source of the 1983 War Scare –Oleg Gordievsky.  The memo –written by National Security advisor Robert McFarlane for President Reagan– outlines KGB defector Oleg Gorievsky’s suggestions for dealing with Soviet leader Mikhail Gorbachev:

aa83

October 30, 1985, memo by National Security advisor Robert McFarlane for President Reagan, Box 1.

Come and see the entire collection at the National Security Archive.

———–

Ed. Note:  Elena Burger was the primary force behind the organization and cataloging of the Able Archer Onsite Collection.  Many thanks from the Archive.

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