FRINFORMSUM 6/13/2014: Lawsuit reveals it’s Too Complicated for the NSA to Preserve its Surveillance Records, Core Transparency Measures left out of USA Freedom Act, and Much More.
In response to a lawsuit brought by the Electronic Frontier Foundation (EFF) over its surveillance practices, the National Security Agency (NSA) is arguing that retrieving data collected under Section 702 of the Amendments Act to the Foreign Intelligence Surveillance Act is “too complicated.” NSA Deputy Director Richard Ledgett wrote in a court filing that, “A requirement to preserve all data acquired under section 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and databases that contain Section 702 information,” prompting EFF legal director, Cindy Cohn, to say, “it demonstrates that once the government has custody of this information even they can’t keep track of it anymore even for purposes of what they don’t want to destroy.”
The EFF is also asking the Supreme Court to take part in a long-standing FOIA lawsuit in which the EFF is seeking the disclosure of the Department of Justice Office of Legal Counsel (OLC) memo authorizing the FBI to obtain call records without judicial approval. According to EFF Senior Counsel David Sobel, “If the Office of Legal Counsel has interpreted away federal privacy protections in secret, the public absolutely needs access to that analysis. There is no way for the public to intelligently advocate for reforms when we’re intentionally kept in the dark.”
Core transparency concerns have been neglected as Congress argues over definitions of surveillance in the USA Freedom Act. The weakening of the Act in the House, and the current fight over the bill in the Senate, has left the bill stripped of provisions initially intended to be crucial parts of it, including accurate reporting from the Foreign Intelligence Surveillance Court, providing “businesses the ability to release information regarding FISA requests, and creat[ing] an independent constitutional advocate to argue cases before the FISC.”
Microsoft is fighting a federal search warrant seeking information from a customer’s emails stored abroad. Microsoft argued in court that providing the information, currently stored in Dublin, “would violate international law and treaties, and reduce the privacy protection of everyone on the planet.” While the Justice Department argues that a Microsoft victory in the case would be “a dangerous impediment to the ability of law enforcement to gather evidence of criminal activity,” privacy advocates argue that the federal government should pursue other channels for the information, namely cooperative agreements called mutual legal assistance treaties, rather than a search warrant.
For the second year in a row, the Information Security Oversight Office (ISOO) is reporting that the number of reported new secrets is continuing to decline. ISOO also reported that, for the first time in a decade, ‘the number of “derivative classification decisions” in which previously classified information is incorporated into new records also declined.’ ISOO was unable to pinpoint a reason for the decrease, but stated, “possible contributing factors could be the recent emphasis on proper classification procedures coming from the expanded agency self-inspection requirements, the inspector-general reviews conducted in response to the Reducing Over-Classification Act, and the Fundamental Classification Guidance Reviews that all agencies conducted in 2012.”
The Federal Aviation Administration (FAA) announced Tuesday in a landmark decision that it was granting oil giant BP permission to be the first company to begin commercial drone flights over the US. Congress ordered the FAA to provide commercial drones access to US airspace by September 2015, but writing safety regulations for drones 55 pounds and lighter has slowed the agency’s efforts, and the FAA “is not expected to meet the deadline.”
Congressional leaders called the Navy’s latest plan for aircraft carrier-based drones “shortsighted.” Congress is taking issue with the Navy’s relatively conservative plan for its drones; asking contractors for reconnaissance drones that have “only limited ability to carry out bombing missions behind enemy lines.” Congress wants, on the other hand, “cutting-edge warplanes, stealthy drones that can attack key targets in contested areas… [and] could end aviation as the Navy has known it.” Congress halted funding for the Navy’s drone program until the Defense Department can complete a review.
A recent Government Accountability Office (GAO) report shows the Department of Homeland Security (DHS) is continuing to struggle “with planning and prioritizing its strategies,” and has failed to establish “strategic departmental intelligence priorities that can be used to inform annual planning decisions, such as what analytic activities to pursue and the level of investment to make, as called for in DHS guidance.” DHS agreed with both the reports findings and recommendations to fix the issues that were raised.
Abuse allegations and a rise in shooting deaths of unarmed civilians have prompted Customs and Border Protection (CBP), a DHS component, to fire its Internal Affairs director and review its protocol on use of force. This comes on the heels of a McClatchy report that “found that at least 21 civilians have been fatally shot by Border Patrol agents in the past four years, including a 16-year-old who was shot 10 times from behind as he walked along a street on the Mexican side of the border fence that separates Nogales, Arizona, from Nogales, Mexico.”
The House recently adopted an amendment to the FY2015 Commerce, Justice and Science Appropriations bill that will “provide a near-absolute shield for reporters against compulsory disclosure of their confidential sources.” The amendment was introduced by Rep. Alan Grayson (D-FL) and is intended ‘to be construed liberally and broadly, to effectuate its purpose of protecting journalists and their sources from any coercive action taken by the government and the legal system. Its spirit applies to other government agencies, and to litigation between private parties. The terms “information or sources” and “confidential” are to be given the widest possible construction.’
The latest posting from the Archive’s Nuclear Vault includes a newly declassified Sandia National Lab report on the 1961 Goldsboro nuclear accident. The report reveals both that by the time one of the multi-megaton Mk 39 bombs involved in the mishap hit the ground it was in the “armed” setting because of the impact of the crash, and that if the shock had not also damaged the switch contacts, the weapon could have detonated.
Finally this week, today’s #tbt document pick comes from a 2007 posting published to coincide with the auctioning off of macabre memorabilia of Che Guevara’s execution (to lone bidder and Houston bookstore owner, Bill Butler). The document is a June 3, 1975, CIA debriefing of Felix Rodriguez, aka Benton H. Mizones, who was the only CIA operative present at Guevara’s 1967 execution, and the person who informed Guevara he would be killed. After the execution, Rodriguez took Guevara’s Rolex watch and accompanied his body to the airport.
FRINFORMSUM 6/5/2014: Federal Judge Rules NSA Bulk Data Collection Legal –For Now, NSA Harvesting Millions of Images from the Web for its Global Facial Recognition Programs, and Much More.
U.S. District Court Judge B. Lynn Winmill upheld the legality of the National Security Agency’s (NSA) bulk collection of American’s phone call data this week. Winmill ruled “binding precedent in the Ninth Circuit holds that call and e-mail metadata is not protected by the Constitution and no warrant is needed to obtain it.” The ruling noted, however, that U.S. District Court Judge Richard Leon’s December ruling that the NSA program likely violates the Fourth Amendment “should serve as a template for a Supreme Court opinion. And it might yet.”
The New York Times recently reported that the NSA is harvesting millions of images from the web for use in its facial recognition programs. According to documents the newspaper obtained from former NSA contractor Edward Snowden, ‘[t]he agency intercepts “millions of images per day” — including about 55,000 “facial recognition quality images.”’ A 2010 document reflected the increasing importance the agency places on digital imagery, noting “[i]t’s not just the traditional communications we’re after: It’s taking a full-arsenal approach that digitally exploits the clues a target leaves behind in their regular activities on the net to compile biographic and biometric information.” NSA chief, Adm. Mike Rogers, responded to the NYT report by saying that the agency is not collecting visual images of people in the US unless they are linked to the investigation of a foreign suspect.
A new Office of Director of National Intelligence directive that requires all employees and contractors to obtain “authorization before disclosing any intelligence-related information to the public” is confusing and frustrating many intelligence agency employees. One –anonymous– former official called the directive both outrageous and ineffective at stopping the next Snowden, while another argued it is an individuals right to talk about intelligence issues so long as no classified information is revealed.
The Supreme Court rejected an appeal from New York Times reporter James Risen over his refusal to testify in a leaks case. At issue is Risen’s refusal to testify in former CIA official Jeffrey Sterling’s leaks trial that resulted from his disclosures regarding Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, which was the subject of a chapter in Risen’s 2006 book, State of War. The Obama administration has sent mixed signals about the case, with Attorney General Eric Holder hinting last week that the government might not pursue jailing Risen for his refusal to testify, all the while pursuing the administration’s right to do so.
Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee, released contents of a brief e-mail exchange between Edward Snowden and the NSA’s Office of General Counsel last week. While Feinstein reported that “the NSA informed the committee that it has found no evidence that Snowden expressed concerns or complaints, in email or any other form, about NSA’s intelligence activities to anyone in a position of authority or oversight,” Snowden said the e-mails were incomplete. Snowden told the Washington Post that, “[t]he NSA’s new discovery of written contact between me and its lawyers – after more than a year of denying any such contact existed – raises serious concerns.”
Snowden’s leaks about the NSA’s bulk data collection programs spurred thousands of FOIA requesters to submit records requests to the agency, and documents released to The Guardian show the agency’s FOIA staff struggled to respond and sought ways to deny releasing records en masse. According to Archive FOIA Coordinator Nate Jones, “[f]or those who believe the public has the right to know what information the NSA is allowed to collect the conclusion drawn in this case is that the Snowden leaks worked and the Freedom of Information Act did not.”
In an unusual move, the International Committee of the Red Cross was not invited to interview the five Guantanamo detainees released in the prisoner exchange for Sgt. Bowe Bergdahl. The Obama administration also withheld its statutory 30-day notice of the exchange from members of Congress, only informing Congress about the exchange while it was underway.
Documents released through the FOIA raise the question why the FBI was investigating Michael Hastings’ reporting on Bergdahl? Hastings, who wrote “the definitive first account of Bowe Bergdahl” for Rolling Stone in 2012 –a largely unflattering depiction of the soldier–, died in a car accident in June 2013. After his death, FOIA requests filed by Jason Leopold and Ryan Shapiro to the FBI resulted in the release of heavily redacted FBI document characterizing Hastings’ reporting as “controversial,” and show the bureau extensively investigating the reporting behind the 2012 Rolling Stone article.
Documents released to Ryan Shapiro in response to a FOIA lawsuit also reveal that the FBI spied on Nelson Mandela during his first visit to the US in 1990. Mandela was still on the US’ terror watch list at the time of his visit, and his party, the African National Congress, was a designated US’ terrorist organization. Considering that the CIA likely played a role in Mandela’s 1962 arrest, according to Shapiro, “[w]hat’s missing from these documents is often as illuminative as what’s disclosed. Not only did the FBI heavily redact and withhold documents, but there’s virtually no discussion of U.S. intelligence community involvement prior to Mandela’s 1990 release from prison.”
To commemorate the 25th anniversary of the Chinese government’s vicious crackdown on pro-democracy protestors at Tiananmen Square on June 4, 1989, the National Security Archive published 25 Defense Intelligence Agency (DIA) records, obtained through the FOIA, for the first time. The DIA records address the 1989 protests, which culminated in the June 4 massacre, and a range of other security-related concerns with important implications for the political longevity of the Chinese leadership.
Leading decision makers from the United Nations, Africa, the United States, and Europe gathered in the Hague from June 1 to 3 to consider the failure of the international community to prevent or effectively respond to the 1994 genocide in Rwanda. The conference was jointly sponsored by the United States Holocaust Memorial Museum and The Hague Institute for Global Justice, in cooperation with the National Security Archive to mark the 20th anniversary of the genocide. The conference coincided with the release of newly-declassified reporting from 1994 by key members of the UN Security Council, which provides a previously unavailable day-by-day narrative of the international response to the Rwandan genocide. The documents “offer a vivid record of closed-door debates, in which the diplomats, lacking accurate information and scarred by a disastrous military mission in Somalia months earlier, voted to pull out most of the peacekeepers at the very moment that they could have curbed the killing.”
Finally, this week’s #tbt document pick! This week’s selection is a Secret June 14, 1963, memorandum –nearly a year after Nelson Mandela’s arrest–, from U. Alexis Johnson, Deputy Under Secretary for Political Affairs, to Secretary of State Dean Rusk. Johnson says he believes apartheid will eventually prove “disastrous,” but advises against imposing a total arms embargo on South Africa because its cooperation with the U.S. on aircraft landing rights, tracking stations, and ports, will be increasingly important if the U.S. can’t maintain access to the Suez Canal.
With the 25thanniversary of the Tiananmen Square massacre at hand, Chinese authorities have erected “more impact resistant” railings around the square itself, rendered Google “largely inaccessible,” detained lawyers, arrested scholars, disappeared activists, and shamed journalists. This is all ostensibly to suppress debate over the military crackdown of the 1989 pro-democracy protests that resulted in the June 4, 1989, massacre of an unknown number of Tiananmen Square demonstrators. Unsurprisingly, the Chinese narrative on one of the most seminal events in its modern history remains, for the most part, sparse.
Luckily, newly declassified documents released to the National Security Archive by the Defense Intelligence Agency (DIA) will help fill in some of the gaps. The DIA documents support the view that there was only a “limited split” in Chinese leadership on using lethal force against citizens, and shed new light on events during and after the protests, complementing previously declassified US diplomatic cables and CIA reports to do so.
The documents show that by April 19, 1989, as pro-democracy demonstrations were beginning to escalate in Beijing, the DIA was reporting that the Chinese government’s response to student demonstrations was “restrained,” but that further “escalation of student protests will most likely trigger a government crackdown.” Nearly a month later, on May 17, demonstrations had so escalated, and it was reported that an estimated 1 million people were protesting in Beijing. According to DIA analysis, onlookers generally supported the demonstrators and provided them with food and money. The same source indicates that by mid-May soldiers were allegedly already refusing to deploy to Tiananmen Square, and that on May 15 a unit in Boading “failed to deploy” despite Beijing’s orders.
In light of growing demonstrations and evidence that the army might be unwilling to use force against the protesters, on May 19, 1989, the DIA reported that the Chinese Communist Party (CCP) seemed to “have little choice but to make serious concessions to the students.” It also noted that government infighting was sending mixed-messages to both students and the army, and that “several group armies” were being moved to Beijing.
By May 18 or 19, however, CCP General Secretary Zhao Ziyang was the only voice opposing military force against the protesters. Upon realizing his calls for moderation had been ignored, Zhao met with students at Tiananmen on May 19, saying, “We have come too late.” Chinese premier Li Peng declared martial law the following day.
Later DIA analysis, drawn from the 1990 edition of the Directory of the PRC Military Personalities, lists the highest estimates of troops used to suppress the protest after Zhao was outvoted at 350,000 men, including “elements from at least 14 of the PLA’s [People's Liberation Army] total of 24 groups armies (GA’s) and two airborne brigades.”
Chinese leaders tried to promote the appearance of a return to normalcy in the immediate aftermath of the 1989 protests, insisting they were a “counter-revolutionary riot, involving a tiny minority of troublemakers.” The CCP’s security concerns surrounding hosting the 1990 Asian Games, however, belies the portrayal of the protests as a contained riot perpetrated by an unhappy minority. According to a declassified DIA cable, the Chinese government viewed the 1990 Asian Games as “a rite of passage” and as a key point in both the nation’s long-term economic development and returning to “international respectability” after Tiananmen, and a Secret April 16, 1990, report notes heavy security and riot police around Tiananmen Square and the Asian Games stadium in the lead-up to the Games to subdue any potential disruptions. An April 12, 1991, cable further notes that after the Games the PLA generally kept a low profile because the 1989 crackdown “seriously tarnished” its image. In response, the People’s Armed Police force grew to 30,000, and assumed a “greater responsibility for internal security.”
In the years after the 1989 protests, possible June 4 anniversary protests became an annual concern for Chinese leadership, with one May 7, 1990, cable expressing fears that “the situation in China is explosive.” One of the most revealing documents reporting on the Chinese government’s suppression of dissent surrounding the Tiananmen anniversary is a Confidential January 10, 1992, cable. The cable reports that according to a group of Chinese officials, ‘suppression of dissent should supersede a crackdown on criminal activity. The group resolved to focus efforts on specific elements as follows:
- “Stubborn bourgeois – liberal activists”
- Antigovernment activists from outside China
- “National separatists” (Ethnic minorities)
- “Counterrevolutionaries of the religious circle” (mainly leaders of non-state sponsored Christian denominations and certain Muslim groups)’
Taken together, these DIA documents support previous reports that there was only a “limited split” among top Chinese leadership on using force against protesters, but that “both senior officers and rank-and-file soldiers had basic qualms about confronting their fellow citizens with lethal force.” Read in conjunction with diplomatic cables and CIA reports, these DIA documents help provide a more complete picture of the 1989 protests and Tiananmen Square.
Leading decision makers from the United Nations, Africa, the United States, and Europe will gather in The Hague from June 1 to 3 to consider the failure of the international community to prevent or effectively respond to the 1994 genocide in Rwanda and to explore whether and how the tragedy might have been averted.
This rare convening of former officials and eyewitnesses, jointly sponsored by the United States Holocaust Memorial Museum and The Hague Institute for Global Justice, in cooperation with the National Security Archive (George Washington University), coincides with the 20th anniversary of the genocide, a deliberate campaign of killing that took the lives of as many as one million Rwandans, predominantly Tutsis, between April and July 1994.
Thousands of pages of newly declassified documents have been made available online by the conveners as part of a broader initiative to shed new light on the failed response to the genocide. Declassification requests that the National Security Archive and the Holocaust Museum made in four countries have resulted, most recently, in the release of nearly 300 formerly secret diplomatic cables that provide fresh insights into closed UN Security Council sessions in the days and weeks leading up to the genocide. These newly released documents, which will be available on the National Security Archive and Holocaust Museum websites starting Monday, June 2, include reporting from key players in the Security Council debates, in addition to previously withheld US diplomatic traffic. They include cables from three officials who will attend the conference: New Zealand envoy Colin Keating, president of the Security Council in April 1994; Sir David Hannay, the British permanent representative to the UN; and Karel Kovanda of the Czech Republic, who was the first UN ambassador to use the term “genocide” to describe the events in Rwanda.
Tom Blanton, director of the Archive, said, “The remarkable new documentation obtained by our project pulls back the curtain over UN deliberations in 1994 and goes right to the question of why and how the international community failed to respond and to protect Rwandans. Now, thanks to the Holocaust Museum and The Hague Institute, this remarkable group of former officials and eyewitnesses is coming together to learn from each other, and from the new evidence, to prevent future catastrophes like Rwanda.”
Participants in the conference, International Decision Making in the Age of Genocide: Rwanda 1990-1994, include architects of the 1992-93 Arusha Accords; the leadership of UNAMIR, the UN peacekeeping force in Rwanda; four former members of the UN Security Council; senior officials from the United Nations, Africa, the United States, and Europe; and former diplomats, human rights activists, academics, and journalists present in Kigali before and during the genocide. Lieutenant-General Roméo Dallaire, leader of the ill-fated UN peacekeeping mission in Rwanda and recipient of the 2014 Elie Wiesel Award — the Holocaust Museum’s highest honor — for his bravery and moral courage in helping save some 30,000 lives, will also participate.
The conference is modeled on a series of “critical oral history” gatherings co-organized by the National Security Archive over the past 25 years that have dramatically expanded public and scholarly knowledge of the Cuban Missile Crisis, the Vietnam War, the end of the Cold War, and US-Iran relations, among other topics. This conference will focus on: the lead-up to the genocide between October 1990 and April 1994, asking such questions as whether the international community might have been able to foresee and prevent the gathering catastrophe in Rwanda; the international response to the genocide, with special attention paid to the role of the UN Security Council; and the similarities and differences between Rwanda and other contemporary mass atrocities.
This conference is made possible in part by the generous support of the Sudikoff Family Foundation, which funds the Holocaust Museum’s Sudikoff Annual Interdisciplinary Seminar on Genocide Prevention, and the John D. and Catherine T. MacArthur Foundation, which helps to underwrite the National Security Archive’s genocide documentation efforts.
Please visit the National Security Archive for more information.
William Worthy, a foreign correspondent who travelled to –and reported from– locations the US government did not want him to go, died this month at the age of 92.
Worthy traveled to places like the Soviet Union, Cuba, and China because he believed Americans “have a right to know what’s going on in the world in their name,” and it would be difficult to exaggerate his contributions both to investigative journalism and the founding of the National Security Archive.
Worthy’s intrepid reporting made him the subject of a landmark federal case concerning travel rights. He is perhaps most famous for his 1961 arrest after returning to the US from Cuba where he interviewed Fidel Castro. Upon return he was arrested, not for illegally traveling to Cuba, but for re-entering the US without a passport, which the State Department had refused to renew years before after he violated a US travel ban and spent 41 days in China. The travel rights case made him the subject of protest singer Phil Ochs’ “The Ballad of William Worthy,” which includes the lyrics: William Worthy isn’t worthy to enter our door./ Went down to Cuba, he’s not American anymore. /But somehow it is strange to hear the State Department say, /You are living in the free world, in the free world you must stay.
Mr. Worthy, albeit somewhat inadvertently, also played a key role in the founding of the National Security Archive in 1985.
In 1981 Worthy, undeterred by the government’s attempts to prevent him from traveling where they didn’t want him to go, flew to Iran to report on the Islamic revolution as a freelance producer for CBS News. While there, he bought a multivolume set of books that were readily available in Iran and were already circulating through Europe. These volumes were “said to be reprints of intelligence documents taken from the United States Embassy in Tehran after revolutionary militants seized it in 1979” during the hostage crisis.
When he returned to the US with the books, however, the FBI determined the volumes were classified and seized them.
Luckily, Worthy was able to acquire another set of volumes and provided them to Washington Post reporter –and Archive founder– Scott Armstrong.
Subsequently, in January 1982 Armstrong published a five-part series, “Iran Documents Give Rare Glimpse of a CIA Enterprise,” about United States intelligence operations in Iran, based partly on the contents of the documents provided by Worthy.
In an interview with Democracy Now’s Amy Goodman, Scott Armstrong called Worthy’s documents “an extraordinary find.” He said:
“This was a whole history. I think there were—he brought back 12 of 13 volumes that existed then. Later, we ended up with 90 volumes in all. But it was an extraordinary insight into the history of overthrowing Mosaddegh, the popularly elected leader of Iran; re-installing the Shah, the CIA’s role in that; and then the cooperation that the CIA gave with SAVAK, the dreaded secret police of Iran. And it was—every intimate detail was included. They just—they had some documents in their entirety that just hadn’t even gotten to the shredder and other things that they were able to print out that were still in electronic form, that showed the U.S. government reaction to pressure on the Shah as the revolution occurred in Iran. And the United States did not deal with itself well. The United States government at one point during the hostage crisis considered releasing these documents, and Cy Vance advocated it, but it chose instead to try a military rescue. So, these documents were—essentially put a lie to every defense that had been given for the U.S. role in Iran over a 30- or 40-year period at that point.”
Armstrong was careful to note in his 1982 expose that, while the volumes provided an unprecedented glimpse of the CIA’s activities, not all of the documents that were found in the US Embassy in Tehran had been deciphered, and others had but were ultimately withheld because they “might embarrass Islamic clerics the militants support.” Armstrong noted that while the published documents did not support some of the militants more “egregious” conspiracy theories about the US’ activities in Iran, the documents were “used in an intensive campaign to arouse further distrust of the United States.”
For its role in attempting to suppress the dissemination of Worthy’s volumes and tighten the lid on the US government’s activity in Iran, the FBI agreed to pay $16,000 to settle a suit brought by Mr. Worthy, his colleagues, and the American Civil Liberties Union over the volumes’ seizure.
In his interview with Goodman, Armstrong also elaborated on how Worthy’s collection convinced him and others to establish the National Security Archive.
“These documents were so complete and, once authenticated, painted such an unusually detailed picture of the U.S. machinations in Iran, that it became apparent that there was always going to be an understory, there was always going to be something in the background that journalists suspected, but were often unable to write about, because, at that point, the Reagan administration was there. The Reagan administration was attempting to intimidate Bill Worthy, attempting to intimidate other journalists. A year after I wrote the series, they came down with a National Security Decision Directive 84, which was—which said that no person in the United States government could talk to a member of the press about anything involving national security without first clearing it with the National Security Council. And that lasted about a week, because there was such an uproar from the press. But we were—it was still unclear whether the press was really going to pursue things like the Iran-Contra activities that were beginning to go on. The war in El Salvador had heated up again. And the Reagan administration was re-inventing facts every day of the week. And they would just make conclusory statements. They would deny things that were quite obvious to the journalists on the ground in different countries. And often our editors were intimidated.
So the question became: Was it possible to put together large groups of documents, get them declassified or otherwise accumulate them, and keep them in the public domain? And we tried it with—actually, it was an ACLU project at—in Washington that dealt with the questions of asylum for Salvadorians. And both Ray Bonner from The New York Times and I had independently used the Freedom of Information Act to request things, and we’d gotten back different—the same documents. Often, Ray would get back one where the top half was excluded and the bottom half was there, under national security grounds; I’d get back the same document, the top half included and the bottom excluded. So we began to put these things together, and we began to see that there were ways to get an authenticated version of what actually happened on the ground that would at least begin to pin down the administration on what its policy had been. I mean, documents do lie, in the sense that we are talking about communications between policymakers who have their own point of view, but they at least have the authenticity of showing what those points of view were and allowing people—allowing journalists to say something definitive about the position of the United States government at a particular point in time.
And it was that notion that we could do this, we could do something that was across the board on many different topics, that caused the National Security Archive to be created. It was one of the unintended consequences, I guess, of Bill Worthy’s exercise of his right to travel and his right to read and think and do what he wanted as a journalist. We began to exploit that right. And the Bill of Rights exists only insofar as you exercise it. So I left—at one point, left The Washington Post and founded the National Security Archive.”
Key selections of the volumes Worthy gave to Scott Armstrong were published electronically in the Archive’s second digital collection, Iran: The Making of U.S. Policy, 1977-1980, and are currently housed in the Archive’s conference room.
FRINFORMSUM 5/29/2014: DOJ Begins Core FOIA Regs Review, White House Inadvertently Names Top CIA Officer in Afghanistan, Country X, and Much More.
Today the Department of Justice Office of Information Policy (OIP) is beginning its review process to determine the potential content of “a core FOIA regulation and common set of practices” to be used across the government. Noting OIP’s less-than-sterling FOIA track record, Archive FOIA Coordinator Nate Jones has warned, “Vigilance is required by the requester community to ensure that the Common Regulation actually does lead to the release of more documents, more quickly.” To help ensure that these core FOIA regulations help standardize disparate, and often outdated, FOIA processes along best practice guidelines, the Archive, along with our colleagues at the Citizens for Responsibility and Ethics in Washington (CREW), and the Electronic Privacy Information Center (EPIC), recently published our set of model FOIA regulations, which will be the “standard against which the results of the administration’s review will be judged.”
The White House announced Tuesday that it will examine how the name of the CIA’s top officer in Afghanistan, the Chief of Station in Kabul, was inadvertently released by the White House press office to thousands of reporters. The CIA officer, who works undercover, was included on a list provided to news organizations “of senior U.S. officials participating in President Obama’s surprise visit with U.S. troops” at Bagram air base outside of Kabul, Afghanistan. The embarrassing slip comes at the same time the Obama administration announced plans to reduce troop levels in Afghanistan and end combat operations there by the end of the year.
Earlier this week, Attorney General Eric Holder hinted that the government might not pursue jailing New York Times reporter James Risen for refusing to testify in a leaks trial, all the while pursuing the administration’s right to do so. Risen was subpoenaed to testify in former CIA official Jeffrey Sterling’s leaks trial resulting from his disclosures to Risen regarding Operation Merlin, “a Clinton-era effort by the C.I.A. to sabotage Iranian nuclear research by sending a Russian scientist to sell flawed blueprints to Iran,” which were the subject of a chapter in Risen’s 2006 book, State of War. While meeting with a group of journalists to discuss press freedoms, Mr. Holder said, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”
Hector Monsegur, known online as Sabu, a prominent hacker and leading figure in both Anonymous and its splinter group LulzSec, was released from prison after federal judge Loretta Preska praised his “extraordinary cooperation” with the FBI. While the US government calculates Monsegur participated in over 250 hacking attacks that cost $50 million in damages, he received a lenient sentence thanks to his willingness to help “identify and convict eight of his peers in the Anonymous and LulzSec hacker collectives. Most notably, he was seminal in nailing Jeremy Hammond, who at the time was the FBI’s number one most wanted cybercriminal in the world, for his role in hacking into the private intelligence firm Stratfor.” Hammond, now serving a ten-year sentence, argued that Monsegur had directed much of Hammond’s activity, and “had supplied him with lists of foreign countries vulnerable to attack including Brazil, Iran and Turkey. Hammand went so far as to suggest that the FBI had been using him to launch cyber-attacks around the world, with Monsegur acting as the coordinator.”
Freedom of Information Act (FOIA) requests garnered the release of 4,000 pages of unclassified emails and reports on efforts to monitor the Occupy movement in 2011 and 2012. The Occupy information was collected and disseminated by the US’ 78 counterterrorism intelligence-sharing offices, known as fusion centers, and the released information highlights their often disparate approaches to monitoring activity. While some centers distanced themselves from monitoring Occupy, others monitored “apparently lawful, even routine activities.”
WikiLeaks recently released a statement saying that Country X, a country whose identity has yet to be officially confirmed and whose full audio content the National Security Agency (NSA) monitors as part of Operation MYSTIC, is Afghanistan. The Intercept recently revealed that the NSA is “secretly intercepting, recording, and archiving the audio of virtually every cell phone conversation on the island nation of the Bahamas” and one other country, which it did not name. WikiLeaks released its statement naming that country as Afghanistan because it could not “be complicit in the censorship of victim state X.”
U.S. District Court Judge Gladys Kessler ruled that the US military can force-feed Abi Wa’el Dhiab, a Syrian detainee being held at Guantanamo Bay, to prevent him from dying. She urged the Department of Defense, however, “to consider alternative methods” to keep him alive, saying that the Pentagon’s “intransigence” or refusal to compromise meant that “Mr. Dhiab may well suffer unnecessary pain from certain enteral feeding practices and forcible cell extractions. However, the Court simply cannot let Mr. Dhiab die.” Kessler additionally ordered the government to release 34 videos of the force-feedings to Dihab’s lawyers by June 13th.
Gen. Wojciech Jaruzelski, the Polish leader who declared martial law in 1981 to crush the Solidarity movement, died this week at age 90. The Archive’s 2006 book, From Solidarity to Martial Law: The Polish Crisis of 1980 – 1981, provides a documentary history of Solidarity, the Polish communist party leadership, the Kremlin, the White House, and the CIA, during one of the most dramatic episodes in the Cold War.
The Archive commends the long-awaited release of the State Department’s Foreign Relations of the United States (FRUS) volume XXI, Chile: 1969-1973, in a recent posting. The FRUS volume addresses Richard Nixon’s and Henry Kissinger’s efforts to destabilize the democratically elected Socialist government of Salvador Allende, and the U.S.-supported coup that brought General Augusto Pinochet to power in 1973.
The Archive’s latest posting provides excerpts from Anatoly S. Chernyaev’s 1974 diary, published in English for the first time. Chernyaev was the deputy head of the International Department of the Central Committee (and later the senior foreign policy aide to Mikhail Gorbachev), and he started keeping a systematic diary in 1972 that recorded the highs and lows of his work at the International Department, his attendance at Politburo meetings, philosophical reflections on daily life in the Soviet Union, and more. This is the ninth set of extracts the Archive has posted covering selected critical years from the 1970s through 1991.
Finally this week, our #tbt document pick! This week’s pick comes from our 2006 posting, Solidarity and Martial Law in Poland: 25 Years Later. It is Lt. Gen. Viktor Anoshkin’s December 11, 1981, notebook entry, which provides “one of the more important pieces of evidence to emerge in recent years concerning Jaruzelski’s desire for Soviet military assistance in connection with martial law.”
Judge Rules Mexican government must disclose evidence of grave human rights violations
Migrant killings in Tamaulipas, Cadereyta, prima facie human rights violations
Landmark decision upholds right to truth, cites “interest of society” in “avoiding impunity and the repetition of such acts in the future”
Can the Mexican government continue to hide evidence from the public about grave human rights atrocities? A pair of access to information cases now moving through the Mexican justice system may put an end to the practice.
In a landmark decision in support of the right to the truth, a Mexican federal judge for the first time has ruled that three horrific migrant massacres from 2010-2012 constitute clear violations of human rights and said the Attorney General’s office (Procuraduría General de la República-PGR) is required to release a public version of its investigatory files on the cases. The investigations have long been shrouded in secrecy amid charges that state agents in some cases may have collaborated with the criminal groups responsible for the killings.
The cases stem from a shocking series of mass murders in northeastern Mexico that took the lives of hundreds of migrants. The victims, mainly Central Americans kidnapped from intercity buses while traveling north to the U.S.-Mexico border, were pawns in a brutal conflict between criminal organizations, who murdered them with impunity, in some cases simply to prevent them from falling into the hands of their rivals. In one case, the corpses of 49 victims were completely dismembered before being dumped along the side of the road in the town of Cadereyta Jiménez, Nuevo León, making identification of the corpses especially difficult.
The ruling comes in response to an access to information request brought by Mexico’s Fundación para la Justicia y el Estado Democrático de Derecho (FJEDD) on behalf of the families of victims from those cases.
The court’s decision is a crucial breakthrough for efforts to obtain official information on gross abuses against migrants in Mexico and the latest in a growing body of important legal precedents in Latin America affirming the right to information as a fundamental human right. Migrant victims, their family members, and broader society have the right to know the truth behind such acts of violence, according to the 60-page decision.
“Avoiding impunity and the repetition of such acts in the future”
The Mexican attorney general’s office had refused to divulge the files under Mexico’s freedom of information law citing exemptions in Article 14 (I) and (II) of the Transparency Law, and Article 16 of the Federal Code of Criminal Procedure, allowing the government to withhold information related to “averiguación previa” (“preliminary investigation”). But that exception, the judge asserted, is in these cases trumped by the last paragraph of Article 14 of the Federal Transparency Law, which says that the government can in no case withhold information about grave human rights violations and crimes against humanity. (See Article 14, final paragraph of Mexico’s Transparency Law)
Citing international court decisions, United Nations declarations, and the Mexican Constitution, Judge Fernando Silva García said transparency in such cases is key to “avoiding impunity and the repetition of such acts in the future.” The sensitive nature of investigatory files is precisely why it is so important to make them public, since they “affect society as a whole.” Mexico’s access law, he wrote,
… foresaw an exception to withholding files on preliminary investigations in those extreme cases in which the crime being prosecuted is of such gravity that the public interest in maintaining the preliminary investigation files in secrecy is superseded by the interest of society as a whole in knowing of all the actions that are being brought to bear for the timely investigation, detention, judgment and sanctioning of those responsible.
Key to Judge Silva García’s determination that the cases qualified as a grave violations of human rights is the abundance of evidence that state officials may be connected to the murders. State participation or acquiescence in the act is one of three criteria required to establish that violations are grave abuses under guidelines established by the Inter-American Court of Human Rights and approved by the Mexican Supreme Court.
His decision cites multiple authorities, including the United Nations and Mexico’s National Human Rights Commission (CNDH), which have found evidence of Mexican officials’ complicity in targeted abuses against migrants, particularly in the wave of kidnappings and murders that overtook the states of Tamaulipas and Nuevo León during those dark years. Other reports cited the state’s failure during that time to take the steps necessary to prevent further abductions.
Declassified documents obtained by our organization and shared with the plaintiffs in this case underscore charges that state officials collaborated in migrant abuses. One U.S. Embassy cable highlights the arrest of 16 police officials in connection to the 2010 massacre of 72 migrants in San Fernando, Tamaulipas, and the fact that state officials were “trying to downplay both the San Fernando discoveries [of mass graves] and the states [sic] responsibility for them.” Embassy officials said they did so despite being “fully cognizant of the hazards of highway travel in this area.” Another U.S. report described a state of “near total impunity” for criminal organizations operating in that region “in the face of compromised local security forces.” (See previous post on U.S. documents on San Fernando massacre).
While a number of people have been arrested in relation to the crimes, there has been little information available on the cases against them. The presumed authors of the violence, Édgar Huerta Montiel (“El Wache”) and Martín Omar Estrada Luna (“El Kilo”) remain in detention. Miguel Ángel Treviño Morales, the top leader of the Zetas, was arrested by Mexican authorities in July 2013. More recently, Mexico reported the arrest of an alleged human smuggler (pollero) said to be linked to the case.
Information commissioners violated rights of victims
In denying the information, Mexico’s attorney general argued that none of the massacres had been identified as human rights violations by a competent legal authority. Mexico’s Federal Institute of Access to Information (Instituto Federal de Acceso a la Información y Protección de Datos - IFAI), the appellate body for access to information cases in Mexico, also declined to make such a determination, declaring itself incompetent to do so.
But Judge Silva cast those arguments aside, ruling that the massacres were, prima facie, human rights abuses and that IFAI must order the Attorney General’s office to release a public version of its investigative files. The court also found that the IFAI commissioners are obliged to make such determinations for purposes of access to information; that IFAI should no longer allow agencies to deny access to judicial files when they pertain to human rights crimes; and, perhaps most importantly, that IFAI had violated the rights of the victims and their families in denying access to the information in the first instance.
“[I]f IFAI has any doubts with respect to [this ruling],” Judge Silva wrote, “the authorities should be governed by the principles of good faith, of maximum disclosure, and as the Inter-American Court of Human Rights signaled in the case of Gomes Lund vs Brasil with respect to grave violations of human rights: ‘when in doubt or in the case of a legal vacuum, the right of access to information should take precedent.’”
Test case for new information commissioners
This and a similar case brought by the pro-transparency group Article 19 shine a spotlight on IFAI just as the oversight body is undergoing a major transformation in personnel and responsibilities. The rulings have forced a newly-selected group of IFAI information commissioners to make a clear statement on human rights and access to information during their first weeks in office. Unfortunately, IFAI elected to join the PGR in appealing the judge’s ruling, further delaying the release of important information on these important cases to victims, their families and members of the public.
Still, Judge Silva’s passionate defense of the right to truth offers a clear legal path for Mexico to overcome such challenges and abide by both the letter and the spirit of the Mexican access law and a growing body of international jurisprudence guaranteeing access to information on grave human rights abuses.