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Vladimir Channels the Gipper: Putin’s rationale for invading Crimea sounds a lot like Reagan’s for invading Grenada.

March 27, 2014

This article was originally published on

Reagan and, according to past and present White House photographer  Pete Souza, Vladimir Putin in Red Square; 1988.

Reagan and, according to past and present White House photographer Pete Souza, Vladimir Putin in Red Square; 1988.

Some of the most interesting analyses of the situation in Crimea have been written on the blog of the former American ambassador to the Soviet Union, Jack Matlock. Matlock, who served Presidents Ronald Reagan and George H.W. Bush, reminds Americans to empathize with Moscow about why Russian leaders might feel justified in violating Ukrainian sovereignty. “Russia would point out,” he writes, that the United States violated Panamanian sovereignty to arrest Manuel Noriega, invaded Iraq on “spurious grounds,” and has targeted individuals in at least six sovereign countries for assassination using drones. And don’t forget, Matlock urges us, that in 1983 the United States “invaded Grenada to prevent American citizens from being taken hostage (even though they had not been taken hostage).”

Imagine the chuckle I had, then, a day later when the Reagan Presidential Library finally mailed me its response to a Freedom of Information Act request I had filed three years earlier for National Security Decision Directives 105 and 110A.

On October 23, 1983, Reagan ordered that “The Secretary of Defense and the Chairman of the Joint Chiefs of Staff, in coordination with the Secretary of State and the Director of Central Intelligence [will] take control of Grenada, no later than dawn Tuesday, October 25, 1983.” This military invasion was justified, according to NSDD 110A, because “recent violence and instability have created a situation which could seriously jeopardize the lives and safety of American citizens.”


“Appropriate cover and deception measures are authorized to mislead…”

NSDD 105 spelled out other justifications for installing a Grenadian government that would be friendly to the United States: “A significant portion of our imported oil and U.S. commercial shipping transits through the sea lanes of the Eastern Caribbean. U.S. military logistic support and reinforcements essential for use in a Persian Gulf contingency must also pass through the region.” Another Caribbean island under Soviet influence could, therefore, pose a “significant threat to our economic and security interests.”

Reagan buttressed the military action with “a coordinated legislative and public affairs strategy” that would emphasize “the multi-lateral character of our actions”; “the human rights, abuses, and oppression of the current regime and the recent violence which potentially endangers U.S. lives”; and — with no apparent irony — “the democratic nature of the new government being installed.”

In many ways, Russian President Putin seems to be reading from Reagan’s 1983 script. His professed impetus for Crimea’s annexation was the “anti-constitutional takeover, an armed seizure of power” in Kiev. At a March 4 press conference he “retained the right to use all available means to protect” the Russian-speaking population in the eastern and southern regions of Ukraine. He has justified the annexation by stating: “We have already heard declarations from Kiev about Ukraine soon joining NATO. What would this have meant for Crimea and Sevastopol in the future? It would have meant that NATO’s navy would be right there in this city of Russia’s military glory [Sevastopol], and this would create not an illusory but a perfectly real threat to the whole of southern Russia.”

Similarly, Reagan’s authorization of “appropriate covert and deception measures … to mislead the present Grenadian regime and the Cubans concerning our true intentions” mirrors Putin’s use of subterfuge in Crimea — namely the flagless, balaclava-clad, unidentified commandos who quickly and surreptitiously claimed key Crimean airports, bases, and other strategic points.

The U.S. invasion of Grenada does differ from today’s Crimea situation in several ways. For one, the Organization of the Eastern Caribbean States did formally request U.S. help in removing “the outlaw regime on Grenada.” (Britain, Canada, and the U.N. General Assembly criticized the invasion.) Additionally, a coalition of allied Caribbean military forces did participate in the attack. Russia has acted unilaterally, failing to secure political support from even Belarus. Russia has threatened to cut energy exports, whereas the United States feared a potential blockade in 1983. And, of course, the United States did not annex Grenada after successfully installing a pro-American government.

Obviously, the revelations included in Reagan’s order to invade Grenada in no way constitute legal, political, or moral justification for the Russian annexation of Crimea. These declassified documents do, however, provide historical context for Amb. Matlock’s observations on the fickleness of great-power calls for respecting the sovereignty of other nations. After all, it was then-Soviet Minister of Foreign Affairs Andrei Gromyko who called the American violation of Grenadian sovereignty a “piratical act of terrorism and a challenge to the entire world.

However altruistically motivated the United States claims its foreign interventions to be, even short-term military actions set decades-long precedents that our adversaries use to claim that they, too, must invade sovereign nations to protect their interests.

FRINFORMSUM 3/27/2014: Competing Plans to Overhaul the NSA, Senate to Vote Soon on Declassifying Parts of Contentious Torture Report, and Much More.

March 27, 2014
President Obama announced he has a new plan to overhaul the NSA.

President Obama announced he has a new plan to overhaul the NSA.

President Obama revealed he has endorsed a new plan to overhaul the National Security Agency’s (NSA) domestic metadata collection program this week. The White House has yet to release the plan itself, but has announced that it would, among other things, end the bulk collection of domestic phone records. The NSA currently holds on to domestic phone records for five years (even though most experts agree the records’ utility decreases significantly after two), “[b]ut the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require.” According to the New York Times, the plan “would also include a provision clarifying whether Section 215 of the Patriot Act, due to expire next year unless Congress reauthorizes it, may in the future be legitimately interpreted as allowing bulk data collection of telephone data.” The White House proposal –which has yet to be approved by Congress– would not, however, effect other forms of bulk records collection, like the CIA’s collection of records about international money transfers.

The House of Representatives also revealed a new bipartisan bill that attempts to revamp the contentious NSA program this week. The main difference between the House bill, co-sponsored by House Intelligence Committee chairman, Representative Mike Rogers (R-MI), and ranking member C. A. Dutch Ruppersberger (D-MD), and Obama’s plan, is the question of judicial review. Under the Obama plan, a judge’s order would be required before the NSA could obtain call records linked to a suspect, and the judicial order would require phone companies to provide the ‘data in a standard technological format and allow the government to obtain the phone records of people up to two calling links, or “hops,” from a suspect, even if they had different providers.’ Under the House bill, on the other hand, FISA “would review the requests afterward, expunging data if it did not meet the standard.”

A classified 2011 NSA report recently revealed by the Associated Press shows the Senate Intelligence Committee considered options to alter the NSA’s bulk collection efforts —in ways that were nearly identical to Obama’s current plan— in closed meetings nearly three years ago. The Committee “considered —but ultimately rejected— alternate ways for the National Security Agency to collect and store massive amounts of Americans’ phone records.”

Sen. Dianne Feinstein and her Senate Intelligence Committee will vote next week on declassifying parts of its torture report. Photo: Bill Clark/CQ Roll Call

Sen. Dianne Feinstein and her Senate Intelligence Committee will vote next week on declassifying parts of its torture report. Photo: Bill Clark/CQ Roll Call

The Senate Intelligence Committee is expected to vote next week on whether or not to declassify parts of its scathing 6,200-page report on the CIA’s defunct torture program. Sen. Feinstein lambasted the CIA on the Senate floor two weeks ago, accusing the CIA of concealing and deleting documents her committee was reviewing for the report. This accusation prompted the CIA to accuse the Senate committee itself of hacking into the agency’s secure network to view documents it was not allowed access to, even going so far as to file two criminal charge against the committee with the Department of Justice. Senate Majority Leader Harry Reid (D-NV) strongly backed the Senate Intelligence Committee in the dispute, ordering an investigation into the incident, and calling the CIA’s allegations “that Senate committee staff who have no technical training somehow hacked into the CIA’s highly secure classified networks…appears on its face to be patently absurd.”

Zero Dark Thirty Movie Poster

Zero Dark Thirty Movie Poster

A recent report by the Project on Government Oversight reveals that a DOD Inspector General employee, Dan Meyer, has been rebuked for making an “unauthorized disclosure” to congressional oversight committees regarding the filming of Zero Dark Thirty, which documented the mission to kill Osama bin Laden. POGO reports that Meyer is being punished specifically for providing congressional oversight committees a DOD IG document critical of CIA director Leon Panetta exposing “highly classified information related to the raid that killed Bin Laden to a producer of the movie Zero Dark Thirty at a June 2011 CIA event.” The move to chastise Meyer is especially hypocritical after the Archive reported the US government’s official refusal to release any documents directly to the public about the raid while simultaneously granting the film’s producers exclusive and unprecedented access to classified CIA and DOD information about the operation.

In other news this week, the number of Americans deemed eligible for security clearances in 2013 exceeded 5.1 million. This is the fourth year in a row the number of Americans deemed eligible for security clearance has increased.

DNI James Clapper won 2013's dubious Rosemary Award. Photo credit AFP.

DNI James Clapper won 2013′s dubious Rosemary Award. Photo credit AFP.

The National Security Archive awarded director of national intelligence, James Clapper, the Rosemary Award for worst open government performance in 2013 this week. Clapper beat out some stiff competition for this year’s award (named after President Nixon’s secretary, Rose Mary Woods, who testified she had erased 18-and-a-half minutes of a crucial Watergate tape) for his “No, sir” lie to Senator Ron Wyden’s question: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper later explained his rationale for lying as it being the “least untruthful” answer possible.

Finally this week, Gavin Baker of the Center for Effective Government alerted the Archive to a proposed rule change that would, in part, clarify procedures regarding former Cabinet level officials and former Presidential appointees’ access to records and information in the custody of the Secretary of Defense and the OSD components. The rules that are currently on the books allowed Secretary of Defense Donald Rumsfeld to use a provision of the President’s Executive Order on Classification to cut in line before FOIA requesters, including the National Security Archive, for access to DOD records created during his tenure. One of the documents Rumsfeld obtained through the provision even directed him to the National Security Archive’s website for one particular document he was seeking.


Happy FOIA-ing!

FRINFORMSUM 3/20/2014: the NSA’s MYSTIC Program Powerful Enough to Swallow a “nation’s telephone program whole,” Judge Calls a DOJ Search Practice “repugnant to the Fourth Amendment,” and Much More.

March 20, 2014
Operation MYSTIC

Operation MYSTIC

The National Security Agency (NSA) has built a surveillance program so powerful that it can swallow a “nation’s telephone program whole.” According to documents obtained by former NSA contractor Edward Snowden and reported on by the Washington Post, this program –codenamed MYSTIC– is capable of capturing “100%” of a foreign country’s voice calls. MYSTIC’s retrieval tool, RETRO, also enables “the agency to rewind and review conversations [for] as long as a month after they take place.” The program began in 2009, reached full capacity in 2011, and last year’s secret intelligence budget (also leaked by Snowden) mentioned an effort to add “an additional target” to the MYSTIC program, though it remains unclear if any country has yet to have their data collected in its entirety.

The Inspector General for Intelligence and Special Program Assessments is the Department of Defense component that has oversight responsibilities for the NSA, and it recently reported that it has no plans to investigate the spy agency. Despite ongoing fallout from Snowden’s revelations about the NSA’s surveillance practices, Anthony C Thomas, the deputy IG, said Tuesday that not only were there no plans for an investigation, but that he was “not aware” of the NSA’s bulk phone collection practices until they were disclosed by The Guardian, and that he couldn’t quantify how much oversight his office currently performs on the NSA.

CIA director John Brennan sits between FBI head James Comey, and director of national intelligence, James Clapper. Brennan implied that it was Congressional staff, not the intelligence agency, that acted inappropriately. Photo: Alex Wong/Getty Images

CIA director John Brennan sits between FBI head James Comey, and director of national intelligence, James Clapper. Brennan implied that it was Congressional staff, not the intelligence agency, that acted inappropriately. Photo: Alex Wong/Getty Images

Oversight issues continue to plague the CIA’s relationship with one of its congressional watchdogs, the Senate Intelligence Committee. Committee Chairwoman, Sen. Dianne Feinstein (D-CA), launched a blistering attack against the agency on the Senate floor last week, accusing the CIA of concealing and deleting documents that her committee was reviewing for its still-secret 6,000 page report on the agency’s defunct torture program. After her speech, the CIA filed two criminal referrals with the Department of Justice, alleging it was Senate staff that acted inappropriately by accessing CIA records they were not cleared to view. It’s worth noting that the CIA general counsel who filed the criminal claims on behalf of the agency, Robert Eatinger, is mentioned 1,600 times in the Senate report for, among other things, providing the Department of Justice misleading information about the torture program. The FBI is reported to be investigating both of the CIA’s criminal claims to see if full-scale investigations are required, though DOJ officials have indicated the agency is reluctant to get involved in the increasingly politicized melee.

A federal judge decided last week that the CIA’s common practice of refusing to release soft copies (electronic versions) of its records –ostensibly for security reasons– might be illegal. IT expert Jeffrey Scudder is suing the agency for refusing to release 419 Studies in Intelligence articles in electronic format in response to his FOIA request. Scudder contends that the CIA is frustrating his efforts to obtain the documents –and charging him double for doing so– by claiming the documents may only be released in paper form, even though the documents are already in electronic format. District Court judge Beryl Howell agreed with Scudder, writing that “[w]here, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.” Secrecy News’ Steven Aftergood notes that ‘[i]n view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.’

Elsewhere in the courts, a federal judge called the DOJ’s request for warrants for its overly-broad email searches “repugnant to the Fourth Amendment.” Magistrate Judge John M. Facciola’s comments were delivered in a case about a defense contractor that highlighted the broad authority the agency believes it “has in searching email accounts.” Facciola wrote that “[t]he government continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy email account holders have in their communications,” and irrespective to their relevance to a particular investigation.

Director of National Intelligence General Counsel Robert S. Litt.

Director of National Intelligence General Counsel Robert S. Litt.

The Director of National Intelligence’s general counsel, Robert S. Litt, told the Privacy and Civil Liberties Oversight Board on Wednesday that requiring the NSA to seek court approval for its queries of Americans’ e-mails and phone calls would create an “operational burden” so heavy that it would make the Foreign Intelligence Surveillance Court “extremely unhappy.” Board member Patricia Wald replied, “I suppose the ultimate question for us is whether or not the inconvenience to the agencies or even the unhappiness of the [surveillance] court would be the ultimate criteria.”

FAO Schwarz Jr., the former chief counsel for the Church Committee, which led to the creation of the Senate and House intelligence oversight committees, is now leading calls for a new investigative panel into the CIA and NSA’s surveillance practices. In an open letter addressed to congress and the president, Schwarz wrote that “[m]isleading statements by agency officials to Congress, the courts and the public have undermined public trust in the intelligence community and in the capacity for the branches of government to provide meaningful oversight.”

As this week’s freedom of information news summary and a host of great Sunshine Week reports go to show, the fight to improve open government still has a ways to go. Keep filing those well-constructed FOIA requests, and happy FOIA-ing!

The Menace of Overclassification

March 20, 2014

This article was originally posted on the official Sunshine Week website, sponsored by the John S. and James L. Knight Foundation, Bloomberg, The Gridiron Club and Foundation
American Society of News Editors, and Reporters Committee for Freedom of the Press. 


Archive FOIA Coordinator Nate Jones

Last month, Director of US National Intelligence James Clapper got a lot of people’s attention when he conceded the American people should have been told that the National Security Agency was tracking their calls. “Had we been transparent about this from the outset…we wouldn’t have had the problem we had.” This striking remark exposes another dirty little secret: there are trillions of other improperly classified records that could harmlessly be revealed.

In fact, it’s so easy to classify new secrets that government classifiers joke that they can find the authority to classify a ham sandwich. These secrets tend to be permanent. Just last month, the Department of Defense blacked out a fact students learn in US History 101 – that the Cuban Missile Crisis ended with a swap of Soviet nukes in Cuba for the US nukes in Turkey. There are so many new secrets created, and so few old secrets released, that the runaway US classification regime has become a menace to American democracy.

Chart from the Information Security Oversight Office 2012 report to the president showing more than 95,180,243 classification decisions in 2012.

Chart from the Information Security Oversight Office 2012 report to the president showing more than 95,180,243 classification decisions in 2012.

The most recent available data shows that in 2012 alone, there were more than 95 million decisions to classify US documents. The cost of storing these secrets for just one year well exceeds ten billion dollars. We can’t be certain of the exact figure, however, because the cost that intelligence agencies, including the CIA and NSA, pay to house their secrets is – surprise, surprise – classified.

While the number of government secrets is increasing, the amount of money the government contributes to declassification is shrinking; it’s less than one half of one percent of the total spent on classification. To his credit, President Obama recognized this problem and attempted to fix it. In his Executive Order governing the classification system, the president established a National Declassification Center and ordered it to review and declassify 400 million pages of historic classified documents before the close of 2013. Disappointingly, only 22 percent of these documents have been declassified and made available to the public. The remarkable takeaway is that agencies are able to ignore a presidential order to declassify their documents.

The problem of overclassification is not a cottage complaint from historians deciphering Cold War mysteries. Of all the Edward Snowden revelations, perhaps the most important is that classification is the tool that the executive branch uses to enact policies without public discussion, or consent. According to Representative Jim Sensenbrenner, one of the authors of the Patriot Act, the NSA “ignored restrictions painstakingly crafted by lawmakers and assumed plenary authority never imagined by Congress” by cloaking its actions behind the “thick cloud of secrecy” of the classification system. DNI Clapper, apparently, now agrees.

The NSA’s self-conferred authority to warentlessly collect Americans’ telephone metadata is not a legitimate secret. Though, certainly, there are some. These include: war plans before they are conducted; nuclear design information, and some intelligence sources and methods. The protection of legitimate secrets is undermined when they are contaminated with the misclassification of dubious secrets. We should strive for a small graveyard of legitimate secrets protected by a high, impenetrable fence; not a vast prairie of dubious secrets protected only by pickets.

To begin fixing the classification system and make good on its promise that “no information may remain classified indefinitely,” the Obama administration must double down on the National Declassification Center. With increased authority and efficiency measures, the National Declassification Center has the potential to become the permanent declassification pipeline of former secrets, now expired.

The task of monitoring the classification of current information falls largely to the federal courts and Congress. US courts have recently overturned government secrecy claims about the NSA’s dragnet phone metadata collection program, the government’s refusal to “confirm or deny” its use of drone warfare, and its administration of foreign aid. Continued and expanded judicial review of the government’s secrecy claims will prevent the most egregious secrecy abuses.

Congress must also re-embrace its duty to check executive branch claims of secrecy. To start, intelligence oversight committees must ensure that they are receiving the unvarnished truth during their briefings and testimony, and report much more than they do to the public. Congress’s mandate to oversee the classification system is broader than that, though. It was Senator Mike Gravel, after all, who in 1971 entered the secret Pentagon Papers history of the Vietnam War into the Congressional Record for all to read.

Reacting to leaks, DNI Clapper has recently declassified more than two thousands pages about the NSA’s telephone metadata collection program. He explained, “the harm to national security in these circumstances is outweighed by the public interest.” This was certainly a positive step. There are trillions more to take.

Agencies Must Update FOIA Regulations

March 20, 2014

This article was originally posted on the official Sunshine Week website, sponsored by the John S. and James L. Knight Foundation, Bloomberg, The Gridiron Club and Foundation
American Society of News Editors, and Reporters Committee for Freedom of the Press. 

Archive RA Lauren Harper

Archive RA Lauren Harper

This Sunshine Week, the National Security Archive is reporting that 50 out of 101 agencies have not updated their FOIA regulations since the OPEN Government Act of 2007. Even fewer have updated since President Obama committed to improving the FOIA in 2009. One, the Federal Trade Commission, hasn’t updated its regulations since 1975! Luckily, the House of Representatives and the White House are, belatedly, taking up the case.

Up-to-date FOIA regulations are the most important tool FOIA officers must have – literally at their fingertips – to ensure they are processing requests correctly. As such, it’s extremely frustrating that such a basic and rudimentary step has been ignored by many agencies, and described as “not required” by the highest FOIA official in the US government.

The House of Representatives recently unanimously passed the bipartisan Freedom of Information Act Implementation Act (H.R. 1211), which includes a provision compelling agencies to update their FOIA regulations. The House bill – which now awaits Senate approval – would require each agency to update its FOIA regulations “not later than 180 days after the enactment of this Act.” At the same time, the White House is addressing the problem of outdated regulations, albeit in a different manner. In its latest Open Government Partnership National Action Plan, the White House has committed (on paper, at least) to create one common, government-wide set of FOIA regulations that would make it “easier for the Government to keep regulations up to date.”

Both plans have a long way to becoming a reality. And in both cases, the devil will be in the details, and open government watchdogs must be vigilant to ensure that the regulations are progressive, rather than regressive.

Currently, the DOJ’s Office of Information Policy is responsible for ensuring that agency regulations are up to-date and reflect recent improvements to the FOIA. However, OIP’s role as the federal FOIA defender is highly questionable, considering the DOJ itself has not updated its own regulations since 2003. Worse still, OIP recently proposed new regulations that would have been misleading to FOIA requesters about the existence of some documents, exempted online publications from being considered news media, and disqualified most students from receiving FOIA fee waivers. These FOIA backtracks were a large reason the Justice Department was the first ever back to back winner of the National Security Archive’s Rosemary Award for worst open government performance by a federal agency.

It will be up to the open government community to ensure that updated regulations – either on an agency-by-agency basis or by one common, government-wide set – embody the principles of open government and ensure that more documents are released to requesters, more quickly. Reforms that must be included in any successful FOIA regulations update are ones that would mandate that FOIA officers embrace direct communications with requesters, and include language on the OGIS, which can help requesters and agencies mediate disputes to avoid animosity and costly litigation. Best practice regulations must also encourage agencies to bring their FOIA processing into the digital age by requiring that agencies receive requests by e-mail and post all responses and documents on FOIAonline. Finally, best practice regulations must end the practice of using fees to discourage FOIA requesters.

The House of Representatives and the White House’s genuine, if late, acknowledgment of the importance of updating outdated FOIA regulations is something to celebrate this Sunshine Week. If and when this important FOIA reform occurs, it will be up to journalists, frequent FOIA requesters, and open government advocates to ensure that these ever-important regulations improve the FOIA as much as they have the potential to.

Director of National Intelligence General Counsel: “Not Can We Classify –But Should We?”

March 19, 2014
Director of National Intelligence General Counsel Robert S. Litt.  "Not can we --but should we"

Director of National Intelligence General Counsel Robert S. Litt. “Not can we classify –but should we?”

Director of National Intelligence General Counsel Robert S. Litt made some huge Sunshine Week FOIA news yesterday when he  announced that classifiers and declassifiers must now ask: “not can we classify –but should we?”

Litt announced this change of secrecy policy at the  Collaboration on Government Secrecy Freedom of Information Day at American University Washington College of Law.  Litt, who spoke from prepared remarks, lambasted Edward Snowden for his disclosures.  He also did not appear to give credence to the argument that using the Foreign Intelligence Surveillance Court to secretly create a domestic telephone metadata dragnet program was bad or illegal policy.  He did acknowledge, however, that the culture of secrecy cultivated at the NSA and other intelligence agencies could be potentially harmful to the Intelligence Community’s interests.

Update:  Here’s the text of his speech.  And here’s Steve Aftergood’s take.

Litt’s pledge to continue to declassify technically “properly classified” documents if the harm to national security is outweighed by the public interest is more than just rhetorical window-dressing.  If implemented, it would be a serious and beneficial declassification policy change.

(He did not mention issuing a policy directive or memo.  Hopefully, he will.)

"But... the classification guide!"

“But… the classification guide!”

Currently, if a document is “properly classified” according to a classification guide, declassifiers usually choose to leave it classified –no matter how improper continued classification may be in reality.  This applies even to truly “stupid secrets,” such as the Department of Defense’s recent decision to censor the fact that the US removed its nukes from Turkey after the conclusion of the Cuban Missile Crisis.

General Counsel Litt may have wisely realized that this “stupid secrecy” harms the entire US classification regime.  If agencies demonstrate that they have so little trust and respect for Americans that they believe the public cannot know how the Cuban Missile Crisis ended, why would Americans trust these same agencies to be the classification gatekeepers of the surveillance establishment?

Who needs 20th Century US History 101?

Who needs 20th Century US History 101?

At the symposium, I applauded Litt for this game-changing step and asked him to confirm that the Intelligence Community would indeed use this “harm versus public interest” test to discretionarily declassify historic documents which were officially “properly classified,” but were irrationally classified in reality. Litt replied in the affirmative and cited the authority granted in Executive Order 13526.

The specific line in the Executive Order that gives the potential power to declassify and release “properly classified information” if the public interest outweighs the potential harm to national security is likely 3.1 (d), which states:

“In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified.  When such questions arise, they shall be referred to the agency head or the senior agency official.  That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”

The 3.1 (d) provision to declassify “properly classified secrets” is rarely used.  But if General Counsel Litt is serious about embracing the provision to declassify secrets which are officially “properly classified” but in reality no longer must be hidden (See Steve Aftergood for excellent writing on the problems with classification guides and practice), this could be a gigantic step toward fixing the classification system.

Declassification advocates all too painfully know that if Litt’s proposed standard –rather than a declassification as usual mindset– was embraced by the National Declassification Center, it may not have denied an eye-boggling-high 39 percent of the decades-old historic documents which it reviewed.

Litt also revealed another declassification game-changer during his remarks.  He stated that declassifiers will now take into account information in the public domain as they decide if information must truly remain classified.  Until now, most declassifiers have rejected considering information in the public domain as they make declassification decisions, relying entirely on their often woefully inadequate classification guides.  Litt’s instruction to embrace the facts of the real world when making classification and declassification decision is another welcome Sunshine Week pledge.

"The classification guide doesn't lie!"

“The classification guide doesn’t lie!”

But not everyone was as pleased with Litt’s commitments as I was.  One professional declassifier, speaking as an individual, not a government employee, was quick to slam Litt’s proposals.  The declassifier claimed that he did not have the authority to declassify documents which were technically “properly classified” –and did not want it.  It, apparently, was just fine with him to keep the Jupiters in Turkey, century-old invisible ink recipes, even Pinochet’s fondness of Pisco Sours, hidden from the public as “national security secrets.”

Unfortunately, General Counsel Litt had left the symposium by this point and was not able to respond to these assertions.

Hopefully Litt was earnest in this pledge to begin asking: “not can we classify –but should we?”  If this ethos is embraced, it could be the most critical policy fix to date of the overburdened and undemocratic classification regime in America.

Déjà vu in Mexico: Declassified Documents on the First Time Mexico “Killed” “El Chayo”

March 18, 2014

Once Deemed a “Needed Win” U.S.-Supported Operation Failed to Net Cartel Chief in 2010

Mexico’s “largest air mobile operation” “caused both civilian and police deaths” but seen as “overall success” for President Calderón and “serious blow” to drug cartel

This post was co-authored by Michael Evans and Jesse Franzblau for Migration Declassified and was prepared in collaboration with MVS Noticias in Mexico.

Nazario Moreno González (“El Chayo”) was reported killed last week for a second time.

Nazario Moreno González (“El Chayo”) was reported killed last week for a second time.

The Mexican government unleashed a wave a déjà vu across the country last week in announcing the killing of Nazario Moreno González (“El Chayo”), a feared drug cartel chief who was first pronounced dead three and half years ago in a massive police operation that the U.S. Embassy characterized at the time as a “needed win” for then-president Felipe Calderón.

Assuming that it sticks this time, this most recent killing of El Chayo is another notch in the belt of current President Enrique Peña Nieto following the recent re-capturing of another top drug lord, Joaquín “El Chapo” Guzmán Loera, who had escaped from prison in 2001. The surprise announcement also raises questions about the massive, U.S.-backed, Mexican police operation in December 2010 that was believed, until recently, to have ended with El Chayo’s death. Hailed in a contemporaneous U.S. Embassy cable as an “overall success” and a shining example of improving U.S.-Mexico security cooperation under the Mérida Initiative aid package, the so-called “Coordinated Michoacan Operation” of 2010 now seems like another in a long line of failed government efforts to pacify the long-troubled region.

By the end of 2010, Mexican President Felipe Calderón needed a big win. The country’s security situation had become increasingly chaotic. Drug cartels had supplanted the police in many parts of the country, openly exercising control over federal highways and town squares along key transportation routes. The conflict between rival cartels and government security forces had left thousands dead or missing. Most vulnerable and hardest hit amid the waves of violence were migrants, many from Central America, who traveled along those same routes and were easy prey for criminal organizations. The conflict and the government’s response had also forced thousands of Mexicans to seek refuge in other parts of the country.

At the same time, a number of big ticket items under the massive U.S. aid package known as the Mérida Initiative had just been delivered to Mexico, and the U.S. desperately wanted to see signs that Calderón’s government could subdue the violence, put a dent in the drug trade and, most especially, arrest and imprison the cartel “kingpins” responsible for most of the carnage.

The violence had become especially acute in Michoacán, Calderón’s home state, where a 2009 government crackdown on narcotics-related corruption, primarily targeting members of the opposition Party of the Democratic Revolution (PRD), had fizzled after all the detained officials were released for lack of evidence. With his own sister then gearing up to run for governor of the state, Calderón was under considerable pressure to show progress in Michoacán.

Under the circumstances, it was welcome news when it was reported, in December 2010, that Mexican security forces had killed one of the country’s most infamous cartel capos in a bloody shootout. The apparent death of El Chayo, spiritual leader of the narco-evangelistic drug gang known as La Familia Michoacana, came at just the right time. It was the first clear evidence that Calderón’s strategy, and the U.S. intelligence and military aid behind it, was working. In a “Secret” cable sent just days later, U.S. Ambassador Carlos Pascual called the killing of El Chayo a “needed win” for the Mexican president.

The Michoacán Operation was coordinated by the now-defunct Ministry of Public Security (SSP), and according to a declassified report from the U.S. Drug Enforcement Administration (DEA), was driven by intelligence pointing to El Chayo’s location “near Holanda, Michoacan” about a week earlier. The assault on La Familia was the “largest air mobile operation” ever conducted by Mexican security forces, according to another Embassy cable, bringing some 800 federal police to the beleaguered state of Michoacán. It also relied on one of the most important, and expensive, deliverables of the Mérida aid package: a fleet of high-tech Blackhawk helicopters that had arrived only two weeks earlier, according to the same cable:

Just two weeks after they were formally handed over to the [Mexican government] on November 24, the M-qualified SSP aviation crew used three Merida Initiative-funded UH-60 Blackhawk helicopters in the Michoacan operation, substituting one for another as shootouts with LFM [La Familia Michoacana] gunmen sidelined a helicopter for repairs. Federal forces used tactical training provided under the Merida Initiative to deploy from the helicopters into difficult-to-reach places in Michoacan’s rugged mountainous terrain.

The Embassy report praised the operations that were thought to have resulted in the killing of Moreno as “a potent reminder that USG and GOM investments in Mexican law enforcement entities are gaining traction as [Mexican government] institutions are emerging with stronger capabilities to effectively combat the violent drug cartels.”

The government offensive against the cartel had also produced plenty of collateral damage. The Embassy noted that it had “led to violence across the state in the days after,” and had “caused both civilian and police deaths.” But the Embassy still judged the operation as “an overall success” for Calderón “and a serious blow” to La Familia. In killing Moreno, the “SSP [had] demonstrated its growing ability to execute complicated missions,” according to the report signed by Pascual.

While the U.S. State Department and the DEA have released some information about the 2010 operation in Michoacán, other U.S. agencies have been much less forthcoming. Just last week, the Federal Bureau of Investigation sent us dozens of redacted pages, revealing no substantive information, in response a similar FOIA request to that agency.


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