Archive’s Upcoming Document Collection the Most Comprehensive Available on Electronic Surveillance and the National Security Agency
At the cost of $50 billion annually, U.S. intelligence activities, both domestically and internationally, have significant implications for national security, foreign relations, and civil liberties. In an attempt to help the public better assess these implications, on November 12, 2014, the National Security Archive and our partners at ProQuest will publish Electronic Surveillance and the National Security Agency: From Shamrock to Snowden, the seminal collection of leaked and declassified records documenting U.S. and allied electronic surveillance policies, relationships, and activities.
The collection of nearly 1,000 documents, compiled by Archivist Jeffrey T. Richelson and to be made available through the Digital National Security Archive (DNSA), serves as an addition to several National Security Archive documents sets – including those on U.S. Intelligence and the National Security Agency (NSA) – and represents the most comprehensive collection of materials publicly available on the controversial subject of electronic surveillance.
The vast majority of the collection focuses on records related to the classified documents leaked by Edward Snowden to a handful of journalists and that were ultimately published by, primarily, the Intercept, the Guardian, the Washington Post, the New York Times, and Der Spiegel. Every effort has been made to locate and include each posted Snowden document in this collection – including those that originated with the NSA, with other U.S. organizations, or with foreign SIGINT agencies. This includes policy and strategy documents, histories, briefings on specific programs, Foreign Intelligence Surveillance Court (FISC) orders, and assessments of NSA’s relations with foreign agencies. In addition to leaked materials, the set gathers together the full collection of records periodically declassified by the Office of the Director of National Intelligence in response to the fallout from the Snowden revelations.
It is worth noting that the set contains only those leaked documents already posted by the media organizations mentioned above, and it seems clear from the reporting on Snowden’s disclosures that the documents posted represent only a fraction of the number he actually turned over to Glenn Greenwald and Laura Poitras. While the total amount of documents leaked by Snowden remains unclear, in August 2014 Snowden revealed to the original NSA chronicler James Bamford that he left the NSA “bread crumbs” that could have helped the agency determine which files he copied, and which he merely “touched,” further arguing that the government’s continued insistence that he copied as many as 1.7 million documents “is a sign that the agency has either purposely inflated the size of his leak or lacks the forensic skills to see the clues he left for its auditors.”
The set also features other reports, statements, and white papers released by the Obama administration. Along with these executive branch documents, a number of congressional materials are included in the set, such as testimony presented at congressional hearings, proposed legislation, and substantive statements from key congressional participants in the controversy. Rounding out this extremely valuable collection are a host of records generated by private lawsuits directed against the NSA’s surveillance programs, as well as communications from telecommunications and internet service provider firms that have become embroiled in the controversy.
One of the key features of the compilation that sets it apart is the fact that it begins during the Cold War – before the advent of cell phones and the Internet. Among the specific subjects covered are two historical programs that involved the early examples of the provision of cable traffic and creation of a watch list, respectively. One – SHAMROCK – dates to 1945, while the other – MINARET – began in 1967. Also, included are a set of documents concerning United States Signals Intelligence Directive 18, which covered the ability to collect and retain signals intelligence on American citizens.
Electronic Surveillance also provides valuable new information on one key, often obscured, aspect of foreign relations – the liaison relationships between U.S. intelligence organizations (in this case, the NSA) and their foreign counterparts.
The documents published in this unique collection were obtained through the Freedom of Information Act and archival research, from the media publications that posted the Snowden leaks, official releases from the executive branch (including press releases and declassified documents) and Congress (including legislation, member’s press releases, and testimony).
Malcolm Byrne is the author most recently of “Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power” (U. Press of Kansas, 2014)
Twenty-eight years ago, on November 4, 1986, The New York Times published a story – based largely on a Lebanese press account – that blew the lid off one of the more bizarre U.S. foreign policy initiatives of modern times.[i] The day before, on November 3, a Lebanese magazine had reported that the Ronald Reagan administration had been enmeshed in secret negotiations with Iran over the fate of American hostages being held by forces in Lebanon (see Document 1). What’s more, the administration had reportedly sent an envoy, former National Security Advisor Robert McFarlane, to Tehran for talks. The revelations came as a particular shock to American readers because the State Department had identified Iran as a sponsor of international terrorism and for years the president had emphatically forsworn bargaining with terrorists.
The Lebanese magazine – Ash-Shiraa, not widely known outside the Arab world – broke the story but the Times made it a world headline. Despite a sprinkling of errors in the original account, and notwithstanding administration attempts to deny or deflect it, the basic picture was accurate. Unbeknownst to everyone involved (even the Times did not lead with the McFarlane revelation), it would help spark the biggest U.S. political scandal of the Reagan era – albeit one that has now largely been forgotten almost three decades later.
Most of the important details about the U.S.-Iran arms deals are now known, but a few small mysteries remain. One of them is who leaked the original story.
The Mehdi Hashemi Story
For most of the last 28 years, the general consensus has been that the perpetrators were supporters of a notorious Iranian radical named Mehdi Hashemi. In fact, the Ash-Shiraa article itself describes Hashemi, including his background and politics, in some detail. He was related by marriage to the family of Ayatollah Ali Montazeri, the designated heir to supreme leader Ayatollah Khomeini, and enjoyed a degree of support from his revered patron (although Montazeri had at one time denounced the views of his own son with whom Hashemi had been closely tied). By most accounts, Hashemi, who headed an office charged with promoting the Islamic revolution abroad, approached his mission with fanatical zeal and treated anyone not as deeply committed with contempt – including senior officials in the Islamic Republic such as Akbar Hashemi Rafsanjani, then Speaker of the Parliament and deemed a pragmatist, who turned out to be a central figure in the deals with the United States.
Sometime in the fall of 1986, Iranian authorities arrested Hashemi on several counts including for allegedly shipping weapons to Saudi Arabia during the Hajj. His supporters tried to obtain his freedom, as did Ayatollah Montazeri. They circulated large numbers of leaflets in the capital describing the highly sensitive deals with the Americans, as a way to influence popular opinion against Rafsanjani and others who had presumably ordered Hashemi’s incarceration. There was no way to keep the operation secret for long. In late October, the Americans who took part in the covert initiative were warned by their Iranian counterparts that there would be trouble (see Document 2).
The prediction came true sooner than expected. As the publisher and editor of Ash-Shiraa himself told an Associated Press reporter, just four days before his magazine was due to go to press two Iranians traveled to Beirut to meet with him and to tell him their story in person. Later, other observers reached the conclusion that Hashemi’s supporters had been behind the leak.[ii]
A CIA Theory
But apparently not everyone agreed. In 1989, some three years after the Ash-Shiraa scoop, a CIA employee (presumably, although his/her identity has been excised) wrote an article for a classified in-house agency publication called Studies in Intelligence that reached a very different conclusion (see Document 3). Sometime in 2014 (the declassification stamp reads “Approved for Release” as of July 29, 2014), the CIA released the main contents of the article to the public. Citing what appears to be a single source, although it may be more than one – identifications have been excised – the author advances the theory that the true source of the leak was in fact the Syrian regime.
There are several problems with this admittedly informal analysis produced for the intelligence community as a whole rather than as a formal work-product intended for a confined group of analysts or policy-makers. For one thing, it relies virtually entirely on the account of (apparently) one informant, who in turn seems to have talked to more than one Syrian source, and ignores or minimizes other evidence that was available at the time. For instance, the author makes the odd statement that reporting was first received on the subject of the leak only in June 1987. He or she may mean specifically that the CIA received reporting directly from the field, but there were certainly press reports available well earlier, notably an Associated Press interview with Ash-Shiraa’s publisher.[iii]
The CIA article goes on to relay a variety of possible motives for the Syrians’ supposed decision to leak the story. One of them relates to the kidnapping of Syria’s chargé d’affaires in Tehran in the fall of 1986, Iyad Mahmud, something Ash-Shiraa also mentioned. But while the Lebanese story took the trouble to present different accounts of the kidnapping (those offered by both Iranian authorities and by Mehdi Hashemi’s supporters), the CIA article provides only the one viewpoint. It goes on to hypothesize that the unfortunate Mahmud, evidently an intelligence officer not just a diplomat, had somehow found out about the US-Iran deals and was abducted and reportedly beaten in order to intimidate him into silence. The Syrian regime, according to this theory, then had the story printed to punish Iran for mistreating their envoy.
To be fair, the CIA author disagrees with some of the source’s views, and goes on to provide his/her own personal conclusion, supported by a lengthy argument that takes up the bulk of the three-page article. Syria’s motive? To deflect world attention from two high-profile trials in Europe that were focusing an unwelcome spotlight on Damascus’s backing of international terrorism. The author further declares the effort a “sizable success,” judging that, “by damaging the credibility of the US counterterrorist effort, Damascus made it unlikely that Western diplomatic and economic sanctions against Syria would last for long.”
Even if, as s/he acknowledges, the Syrians could not have predicted the scale of the scandal they had supposedly exposed, this judgment leaps too easily from cause to effect. The West’s relations with the Hafez Assad regime were influenced in a variety of ways by Damascus’s multifaceted role in the region that included, ironically, its potential for helping to resolve hostage cases – as occurred with the TWA hijacking of June 1985, for example.
Other skewed conclusions and outright mistakes detract even more from the CIA article. A case in point is the analysis that the Ash-Shiraa story had a pronounced impact on Iran. Here, the author inverts cause and effect, noting incorrectly that Hashemi was arrested in November (it was no later than the last week of October) and postulating that the timing of the arrest, which purportedly followed publication of the story, was “hardly a coincidence.”
Other Minor Enigmas
Several other small puzzles make this episode all the more interesting. One is whether another murky figure may have had a role – Ali Akbar Mohtashemi, Iran’s ambassador to Syria in the early-to-mid 1980s and a key liaison with Hezbollah. Like Mehdi Hashemi, he would presumably have been well informed about the actions and viewpoints of the Lebanese hostage-takers who were to a degree his protégés, and furthermore to be sympathetic to their complaints that senior individuals in authority in Tehran were regularly pressuring them to turn over the hostages for the sake of Iran’s interests (i.e., to barter them for American-made missiles to use in the war with Iraq) more than for their own. Mohtashemi also surfaces in at least one journalist’s assessment as a suspect in Mahmud’s kidnapping – an act that represents another mystery in this story.[iv]
A more likely player than Mohtashemi, even though he may have been unwitting, was none other than Manucher Ghorbanifar, the Iranian middleman and bête noire of the arms deals. Although he denied it later, the evidence is stark that he kept Ayatollah Montazeri informed of the contacts between Tehran and Washington through at least two letters written in July 1986.[v] The question is whether this was how Mehdi Hashemi found out about the deals.
Another minor puzzler is why Hashemi was arrested. (He was executed in September 1987.) Was it because he tried to expose the covert deals with the United States (and Israel), as Ervand Abrahamian and others believe?[vi] Or was it, as official Iranian publications claim, because of his radical misconduct and law-breaking? What seems clear is that Hashemi was defiantly (and violently) promoting the export of Iran’s revolution at a time when most of the country’s rulers preferred to transition to a more stable system and a set of policies designed to dismantle the wall of isolation separating the regime from much of the world.
This last point contains an insight as relevant today as in the 1980s: that Iran since the revolution has always had political actors in its midst representing a fairly broad range of views, and that sometimes even the country’s central authorities have found it hard to constrain the most radical of those elements. The episode is also a reminder of how complex and opaque the region’s dynamics and political relationships remain to outside observers – posing a continuing challenge for the Obama administration and its successors in Iran as well as in Syria and Lebanon.
[i] Ihsan A. Hijazi, “Hostage’s Release Is Linked to Shift in Iranian Policy,” The New York Times, November 4, 1986.
[ii] Among other accounts, see Gary Sick, “Iran’s Quest for Superpower Status,” Foreign Affairs, Spring 1987, http://www.foreignaffairs.com/articles/42020/gary-g-sick/irans-quest-for-superpower-status.
[iii] Associated Press, “The White House Crisis: ‘It’s the Scoop of the Year’; Newsman Tells of Leak from Khomeini’s Heir,” The New York Times, December 7, 1986.
[iv] Robert Fisk, “Ties that Bind the Hostages: Robert Fisk Reports from Beirut on the Shadowy Connections that Link Factions and Nations in the Middle Eastern Captives Crisis,” The Independent, August 30, 1989.
[v] Montazeri’s memoirs (in Farsi) implicate Ghorbanifar (www.amontazeri.com) in this respect. See the discussion in James Buchan, Days of God: The Revolution in Iran and Its Consequences, (John Murray, 2012), especially note 21 on p. 384. See also Stephen Engelberg, “From an Iranian Middleman, His Side of the Story,” The New York Times, June 23, 1987.
[vi] Ervand Abrahamian, Tortured Confessions: Prisons and Public Recantations in Modern Iran (University of California Press, 1999), pp. 162-67.
The temptation to fracture history by suppressing the past—whether by silly redactions (or even outright denial) of documents or by other means—seems to be a universal constant. It is at least as widespread as the public’s thirst for knowledge of its history. It exists in many countries. Freedom of information remains a work in progress. The latest example comes from Vietnam, where, for six years now, the National Security Archive’s Vietnam Documentation Project has been involved in an effort to open up some of the history of the long conflict in that land. The Archive and the Wilson Center’s Cold War International History Project cooperated to assist a semi-official group of Vietnamese in reconstructing some of the story of their wars. The result, published in Vietnam in 2010, is a multi-volume History of the Southern Resistance. On its website the Cold War project recently posted the results of the symposium we held on the new work. The Archive and the Cold War Project assembled a panel of experts to evaluate the findings of the Vietnamese historians. Once all the participants had delivered the written versions of their commentaries we assembled the symposium’s results.
The Vietnamese account was crafted by a group, the Council of Direction for the History of the Southern Resistance. That was the National Front for the Liberation of South Vietnam, the guerrilla movement which formed the mainstay of the war in the southern part of Vietnam from its inception until 1968, and which also played a critical role in the Franco-Vietnamese war of 1945-1954. At the time many Americans and others called the Resistance the Viet Cong. So, what has really been at issue in Vietnam today, is the relative roles of southern Vietnamese versus northern Vietnamese in the war that finally unified Vietnam and ended in 1975. This is important to note in judging the History of the Southern Resistance. Not only was there a danger of self-censorship among participants in drafting the account, the final product had to undergo an approval process prior to publication as a semi-official history. To make things worse, powerful Vietnamese political figures who had championed the project passed away during its elaboration.
The Archive and the Cold War International History Project were approached relatively late in the compilation of the Vietnamese history. Intermediaries spoke to us of opening the archives of the Liberation Front, an exciting prospect for any group dedicated to freedom of information. Representatives of our groups attended a conference in Ho Chi Minh City in 2008 that was built around this history. Unfortunately the goal of opening archives proved elusive. For guerrillas in the bush many things were done without anything being put on paper. No doubt there were records destroyed in the course of the war as well. And for other records the typical reticence of government bureaucracies to the release of real documents applied as well. In the special case of Vietnam there was also the issue of what the documents might say about the relationship between the Liberation Front and the figures in Hanoi who were calling the shots in the war. The net result is that “opening archives” contracted to become helping publicize a “documentation” of the Southern Resistance, and in turn that shrank to whatever survived the South-North vetting process in Hanoi’s approval for publication.
Commentators at our symposium focused on the Southern Resistance history exhibit and the ambivalence that is a natural product of the Vietnamese censorship. The value the Vietnamese documentation might have had has been reduced by its dilution to meet the objections of the powers that be. On the other hand our expert panelists all found valuable material in the newly available Vietnamese history. Read the posting on the symposium at the Cold War Project website to see for yourself. Our disappointment in the result so far is matched by our hope that the Vietnamese will see their way to a more open discussion of this history.
FBI Creates Fake Bomb Story and Attributes it to AP, Post-Snowden Leaker, and Much More: FRINFORMSUM 10/30/2014
In 2007 the FBI created a fake story on bomb threats made at a Seattle-area high school, attributed it to the Associated Press (AP), and then sent it in a private MySpace message to the student suspected of making the threats against the school. “By clicking on the link, the suspect unwittingly downloaded a piece of malware, a computer bug that enabled agents to identify his Internet protocol address.” The Electronic Frontier Foundation (EFF) obtained hundreds of pages of documents on the story through the FOIA, and the AP has since issued a statement saying that the FBI’s actions “violated AP’s name and undermined AP’s credibility.” This revelation comes on the heels of reports that a Drug Enforcement Agency (DEA) agent impersonated a young woman on Facebook, posted racy photos of her and pictures of her underage son and niece on the social media site, all as part of a drug investigation.
The FBI recently searched a Northern Virginia home in connection to a “second leaker” who leaked classified information on the government’s terror watch list to the news media. The leaked information appeared in an August 5 Intercept article, which cites classified government documents on the National Counterterrorism Center’s databases that “provides a statistical breakdown of the types of people whose names and personal information appear on two government data networks listing people with supposed connections to militants.” The documents shows, among other things, “that 47,000 people — including 800 Americans — were on the government’s no-fly list, while an additional 16,000 — including 1,200 Americans — were on the ‘selectee’ list; they are permitted to travel through American airspace but receive extra scrutiny at security checkpoints.”
A recent United States Postal Service Inspector General audit reveals the agency approved 50,000 requests from law enforcement and its own inspectors to monitor Americans’ mail service last year. Though the postal service’s program, called “mail covers,” has played an important, if largely unnoticed, surveillance role since 9/11, the numbers are higher than expected. Combined with documents the New York Times obtained under the FOIA, the audit depicts a generally lax attitude towards the program’s oversight, and “that in many cases the Postal Service approved requests to monitor an individual’s mail without adequately describing the reason or having proper written authorization.”
Dutch prosecutors investigating the crash of flight MH17 over eastern Ukraine this July are still waiting for the promised US intelligence reports on the incident, which killed 298 people. The US previously asserted it had intelligence on the crash, and “said its satellite imagery proved it was shot down with a ground-to-air missile by Russian-backed rebels.”
The Department of Homeland Security (DHS) investigator who led the 2012 internal investigation of the Secret Service’s prostitution scandal has resigned amid his own prostitution scandal. Investigator David Nieland, who “has been at the center of a dispute over whether the Obama administration tried to cover up the involvement of a volunteer member of a White House advance team in the scandal that resulted in the firing of eight Secret Service agents who were on assignment in Cartagena, Colombia,” was recently identified by his local sheriff’s department as having visited a building under surveillance as part of a prostitution sting. When sheriff deputies stopped him afterwards, Nieland said his visit was part of a DHS undercover human trafficking investigation. DHS contacted the sheriff’s office after learning Nieland had been stopped by police, when they were informed by the sheriff’s office that Nieland had been identified by one of the prostitutes under surveillance as having paid for sex. Nieland resigned from his post in August citing health problems.
A recent AP expose argued the revolving door between the military and defense companies participating in the Army’s $5 billion Distributed Common Ground System (DCGS) “perpetuates a culture of failure.” DCGS was “conceived a decade ago as a way to link the military’s disparate sensors and databases, allowing troops to process and integrate intelligence from electronic intercepts, overhead imagery, spy reports and other sources.” Instead, however, the system has largely failed to make data accessible to those working in the field, and was described as “crash-prone, unwieldy and ‘not survivable,’ in the words of one memorable 2012 testing report.” Defense contracting companies have made millions off the program, however, and the military continues to amply fund the system.
The British Archive has declassified the first page of a paramount Able Archer 83 report in response to Archive FOIA Coordinator Nate Jones’ FOI request, but withheld the remainder of “The Detection of Soviet Preparations for War Against NATO,” leaving key questions about the nuclear war scare – at least for now – unanswered. Jones has already appealed the denial in hopes to unseal information “on the specific ‘unprecedented’ Soviet reaction to a NATO command post nuclear release exercise that utilized ‘new nuclear weapons release procedures’ at the height of the Era of Renewed Confrontation.”
Declassified CIA and FBI documents obtained through the FOIA and other sources show that the US government relied more on Nazis as Cold War spies than previously thought, working with as many as 1,000 Nazis, including one former SS official the CIA recruited as a spy in the 1950s despite knowing he was probably guilty of “minor war crimes.” The effort to declassify these documents was led by “Richard Breitman, a Holocaust scholar at American University who was on a government-appointed team that declassified war-crime records.”
With these recent declassifications in mind, today’s #tbt document pick is the DOJ’s Office of Special Investigations 2006 candid history of the US government’s Nazi-hunting (and Nazi-protecting) – the leaked version, that is. In 2010 the Department of Justice used the b(5) “withhold it because you want to” FOIA exemption to censor dozens of pages of the history “to such a self-defeating extent that former officials leaked the entire document to the New York Times.” The Archive had submitted a FOIA request for the history in November 2009, only to be denied by the Justice Department on grounds that the document – although completed in 2006 and never revised since then – was only a draft and was “predecisional” and therefore withholdable under the b(5) exemption. Only after the Archive filed its lawsuit did the Justice Department begin to “process” the document for release –though ultimately making the document incomprehensible with the extensive misapplication of b(5). Fortunately, a Department of Justice employee leaked a copy of this history to the public.
25 Years after the Berlin Wall: GWU Panel to Examine Challenges of Scholarship Since Communism’s Collapse
National Security Archive Executive Director Tom Blanton will moderate an exciting panel on the research challenges scholars face studying Russia/the former Soviet Union and Central/Eastern Europe in the years since the collapse of communism. The panel, which will include Archive Senior Analyst Svetlana Savranskaya and professors Jim Hershberg, Sharon Wolchik, and Robert W. Orttung, will be held on November 6 at GWU’s Gelman Library.
The panel coincides with the 25th anniversary of the collapse of the Soviet-led communist bloc in Eastern Europe – 1989 was the annis mirabilis, the year of miracles, that witnessed political revolutions in several countries whose populations demanded a change from decades of one-party rule to more representative multiparty systems. Poland was the first to hold partially free elections (in June), followed by similar expressions of independence in Hungary, East Germany, Czechoslovakia, Bulgaria, and Romania. Only Romania experienced violent upheaval as a defining element of its transformation.
Political change soon led to dramatic, if in some cases short-lived, access to the previously hidden history of the region. A wave of international scholarly and public interest in every aspect of life under the old regimes helped uncover archival jewels few ever expected would see daylight. Former representatives of the powers-that-were joined in the act, giving interviews and pumping out memoirs that tended to be self-serving but inevitably added important perspective to the world’s attempts to understand the communist period. In some instances, such as East Germany, the need to be rid of historical burdens prompted extraordinary feats of openness – the laying bare of the Stasi files, for example. Elsewhere, as in Russia, reflexive political instincts snapped back into place, slamming shut key archives before they could be fully explored.
This incomplete and uneven access has been a nagging frustration for scholars. Even the most open governments shield their particular secrets, including those dating from the Cold War. But the most critical gaps and questions that still loom from that period tend to relate to the Soviet bloc and to the attitudes and policy choices of those regimes’ elites. Twenty-five years after the fall of the Berlin Wall, the distinguished scholars named above will look back at the experiences of the past generation of scholarship about the Communist era, and offer their first-hand assessments of its successes, shortfalls, impact and evolution since the demise of that system.
The event promises to be an eye-opening journey through history, the politics of memory, and the challenges of academic inquiry in a part of the world that in some respects is still finding its way out of its past.
Thursday, November 6, 2014
1:00 – 2:30 p.m.
Gelman Library, Room 702
The George Washington University
In Second Meeting, FOIA Advisory Committee Tackles Litigation Review, 508 Compliance, and Fee Issues
The FOIA Advisory Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration,” held its second meeting last week. The Committee consists of ten government and ten non-governmental FOIA experts – including the Archive’s FOIA Coordinator Nate Jones – and previously identified FOIA oversight and accountability, proactive disclosures, and fee issues as their primary focus areas. Their latest meeting was dedicated to subcommittee reports on these issues, including the alluring possibilities of conducting a litigation review, easing 508 compliance, and addressing FOIA fee issues and fee-related animosity. Now that the Committee has accurately assessed the greatest areas of concern, the coming months and meetings will tell if the Committee has the tools to fix them.
The subcommittee on FOIA oversight and accountability reported several steps would need to be taken to determine how to improve both, including identifying what current authorities for oversight exist, and areas where there are opportunities for additional oversight. Most importantly, however, the FOIA oversight and accountability subcommittee suggested evaluating past litigation review efforts to determine if another review is necessary to cut down on litigation and increase administrative solutions to FOIA disputes. This is a crucial step as the Department of Justice’s (DOJ) current stance on FOIA disputes is a “defend everything” one. While the 1993 FOIA litigation review “of the merits of all pending and prospective FOIA litigation cases in accordance with the Department’s new FOIA policy standards” conducted by Attorney General Janet Reno led to the “complete resolution” of more than a dozen FOIA lawsuits, there has been no evidence that the Department of Justice has conducted a similar review since the beginning of the Obama administration. Additionally, despite a pledge from DOJ Office of Information Policy (OIP) director Melanie Pustay to provide the Senate Judiciary Committee a list of all FOIA cases that the DOJ has refused to defend, no such list has been presented to the public. Conducting a full litigation review would go a long way to strengthen the government’s and the Department of Justice’s commitment to FOIA.
The proactive disclosure subcommittee, which is interested in finding a data set of raw requests to help determine how agencies can best “preemptively post sought-after government information online,” noted the FOIA already requires two kinds of proactive disclosures. The first concerns various types of information agencies must publish in their federal register chapters, and the second details information agencies must publish in their electronic reading rooms – including “frequently requested records,” which OIP defines as records that have been requested three or more times. It is understandably time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breech of the law. Posting FOIA releases online after the first release would solve this problem. There are several agencies that do this to different degrees; the Environmental Protection Agency and several other agencies post their FOIA releases to FOIAonline, and the Department of State posts documents released in response to FOIA requests quarterly.
According to many inside the government, one of the primary challenges to improving proactive disclosures across the government is ensuring that the posted documents are “508 compliant,” which refers to a 1998 statute requiring federal agencies “to make their electronic and information technology (EIT) accessible to people with disabilities.” While many agencies argue that making documents 508 compliant is too burdensome, all documents posted to FOIAonline are 508 compliant, as are the documents posted by the Department of State, and every document created electronically by the US government after 1998 should already be 508 compliant. A 2010 Department of Homeland Security guide also shows that making documents 508 compliant is not taxing, and even old paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat. If it’s possible to make older documents that were scanned from paper 508 compliant, there should be, at the very least, no such excuse with digital records.
Finally, the subcommittee addressing fee issues reinforced the need to reduce fee-related animosity. OIP’s Summary of Annual FOIA Reports for FY 2013 noted that the amount agencies recouped through FOIA fees in FY2013 “amounts to just less than 1% of the total costs related to the government’s FOIA activities,” which begs the obvious question of how necessary fees are in the first place. From the perspective of the requester community, charging fees can be seen as a ploy to discourage FOIA requests, while FOIA officers argue fees are a necessary tool to encourage requesters to narrow the scope of their requests.
A brief debate took place during this subcommittee report concerning agencies charging fees when they’ve missed their 20-day deadline to process a FOIA request. The 2007 OPEN Government Act mandates that agencies are not allowed to charge search and reproduction fees if an agency misses their deadline to process a FOIA request — something that some argue agencies should explicitly state in their communication with requesters –, however many agencies have eluded this fee improvement simply by labeling requests as “unusual” and claiming that these “unusual” requests are unprotected by Congress’s legislation. Anne Weismann from Citizens for Responsibility and Ethics in Washington (CREW) astutely noted that the debate was symptomatic of precisely the kind of frequent animosity that occurs over fees before agencies even begin processing FOIA requests. At the very least, this subcommittee has pledged to find ways to reduce disputes over fees by clarifying several issues, including the practice of charging FOIA fees if agencies miss their response deadlines.
The FOIA Advisory Committee has aptly identified the key areas in need of fixing. Hopefully it will be able to discuss these solutions in the open online and subsequently “deliver solutions,” –not just discuss them. The Committee’s next meeting will be held January 27, 2015, and will be live-streamed.
First Page of Paramount Able Archer 83 Report Declassified by British Archive; Remainder of “The Detection of Soviet Preparations for War Against NATO” Withheld.
I recently ripped open a package shipped across the pond (for considerable pounds) from the British National Archive. My heart accelerated as I read the title of the first page, “The Detection of Soviet Preparations for War Against NATO.” This was it; the first comprehensive report of the Soviet response to Able Archer 83; information on the specific “unprecedented” Soviet reaction to a NATO command post nuclear release exercise that utilized “new nuclear weapons release procedures” at the height of the Era of Renewed Confrontation. I flipped the page to read the specific evidence on just how dangerous what is now called the 1983 Able Archer Nuclear War Scare actually was. Did the newly declassified evidence confirm that the Soviets “believe[d] that the situation was very dangerous?” Or were they just “rattling their pots and pans?“
My racing heart sank as I turned the page and realized that these questions would, at least for now, remain unanswered. The British National Archive had released only the cover page of the report. The rest of this key historic document –despite its age of over thirty years and the British government’s professed and lauded “Thirty-Year Rule”– remains censored by the British Cabinet Office.
Despite the Cabinet Office’s attempt to obscure Britain’s role in alerting the United States to the nuclear danger that Able Archer 83 may have provoked, documents released last year by the British Ministry of Defence to Peter Burt of the Nuclear Information Service show that the above JIC report was drafted in response to “an unprecedented Soviet reaction to Able Archer 83 and other reports of alleged concern about a surprise NATO attack.”
This evidence was crafted into a Joint Intelligence Committee report labeled JIC84)(N)451. The indications and warnings of Soviet fear of a Western attack were then discussed by Prime Minister Margaret Thatcher, head of the Ministry of Defence Michael Heseltine, and Foreign and Commonwealth Secretary Geoffrey Howe in early May of 1984. At the conclusion of the meeting, Thatcher “said that officials should urgently consider how to approach the Americans on the question of possible Soviet misapprehensions about a surprise NATO attack.”
A May 28, 1984, US Department of State Bureau of Intelligence and Research memo to Secretary of State George Shultz confirms that the warning reached US officials: “In response to British concerns, the Intelligence Community undertook a detailed review of recent Soviet military and political moves beginning with exercise ‘Able Archer 83.’ The result was a Special National Intelligence Estimate addressing these developments.”2
This top secret SNIE 11-10-84/JX, now largely declassified, used British and US intelligence to report the “elaborate” Soviet reaction to this exercise included “increased intelligence collection flights, and the placing of Soviet air units in East Germany and Poland on heightened readiness in what was declared to be a threat of possible aggression against the USSR and Warsaw Pact countries.” The US SNIE acknowledged that “since November 1983 there has been a high level of Soviet military activity, with new deployments of weapons and strike forces” but concluded that “[w]e believe strongly that Soviet actions are not inspired by, and Soviet leaders do not perceive, a genuine danger of imminent conflict or confrontation with the United States.”
A memo for the President and key cabinet officials written less than a month after the SNIE by the Director of the CIA William Casey included a different and more concerning conclusion. He, again likely drawing from the still-classified JIC report, warned of “a rather stunning array of indicators of an increasing aggressiveness in Soviet policy and activities.” He concluded that “[t]he behavior of the armed forces is perhaps the most disturbing. From the operational deployment of submarines to the termination of harvest support to the delayed troop rotation there is a central theme of not being strategically vulnerable, even if it means taking some risks… The military behaviors we have observed involve high military costs … adding thereby a dimension of genuineness to the Soviet expressions of concern that is often not reflected in intelligence issuances.”
The same debate within the US and British governments over the extent of the Soviet “dimension of genuineness” of fear of a NATO attack is now continued by historians. To answer criticisms that the study of the Able Archer War Scare was “an echo chamber of inadequate research and misguided analysis” and “circle reference dependency,” with an over reliance upon “the same scanty evidence,” the National Security Archive has posted and analyzed more than 1,000 pages of declassified documents on the topic.
But this key document’s withholding3 continues to obscure understanding of one of the most important nuclear episodes in our history. As we wrote in our pending appeal to the British Information Commissioner, the British Cabinet Office’s decision to continue withholding this thirty year document –especially considering the multitude of other British, American, Russian, German, and former Eastern Bloc releases– harms the public interest and obscures history.
It’s sadly ironic that the government which first alerted the US to the potential nuclear danger of Able Archer 83 is now leading in its concealment.
1. There is a discrepancy between the titles reference in these documents. The MOD documents, released last year refer to a document entitled”JIC(84)(N)45 Soviet Union: Concern About a Surprise NATO Attack,” while the cover page released from the National Archive is “JIC(84)5 The Detection of Soviet Preparations for War Against NATO.” I postulate that the two titles evolved over the drafting process but refer to the same document. Of course, despite the similarity of the titles and date ranges it is possible that two distinct documents exist. Only declassification will answer this question.↩
2. In “Countdown to Declassification” for the Bulletin of the Atomic Scientists, I wrote that this same document described the creation of an additional “sanitized version” of this SNIE, marked “secret” rather than “top secret,” for circulation among “NATO ministerial colleagues.” This sanitized version removed all mentions of Able Archer 83 and the Soviet response to that exercise –the very reason the estimate was drafted– and hid the increased danger the NATO exercise had engendered from the very countries that participated in it. Part of the reason for this sanitization was to protect the MI6 source inside the KGB, Oleg Gordievsky. But clearly, some US policy makers also did not want to tell their NATO allies that Able Archer 83 may have increased the risk of nuclear war, because doing so might have caused some of those allies to reconsider decisions to deploy nuclear-armed US cruise and Pershing II missiles on their territory.↩
3. There is one additional document which may be as important as this JIC report. It is the most comprehensive known US government evaluation of the War Scare, a 110-page report produced by the President’s Foreign Intelligence Advisory Board (PFIAB) and authored by Nina Stewart. It was completed on February 15, 1990, and forwarded to President George H.W. Bush. Despite the public historical debate over the 1983 War Scare, declassification of other War Scare documents, and repeated FOIA and MDR requests (dating back to 2006) for the document, this illuminating PFIAB report remains locked from public view, a victim of the United States’ broken declassification system. The National Security Archive is anxiously waiting for this case to come before the Interagency Security Classification Appeals Panel (ISCAP), housed at NARA, which we sometimes call (in the spirit of gallows’ humor) “the secrecy court of last resort.” Fritz Ermarth, the primary author of the CIA’s 1984 initial Special National Intelligence Estimate on the War Scare has written, “If it hasn’t already been, [the PFIAB] report should be declassified as much as possible … the historical work done since then suggests [it] had a point, and it is worth pursuing further.” The Archive has posted an interview with one of this elusive PFIAB report’s authors, describing that the “retrospective view of the PFIAB, [was] that [the] war scare was an expression of a genuine belief on the part of Soviet leaders that US was planning a nuclear first strike, causing Sov[iet] military to prepare for this eventuality, for example by readying forces for a Sov[iet] preemptive strike. If so, war scare a cause for concern.”↩