Skip to content

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.

I’ll link to a video of his speech when it becomes available.

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.

National Security Archive Audit Sheds Light on Best Practice FOIA Regulations this Sunshine Week

March 18, 2014

While the federal government’s top FOIA officer, the Department of Justice’s Melanie Pustay, paraded rosy –and misleading– FOIA statistics before the Senate Judiciary Committee yet again this year, the Archive’s latest FOIA audit paints a different picture.

This Sunshine Week, the Archive is reporting that nearly half (50 out of 101) of all federal agencies have still not updated their FOIA regulations to comply with Congress’s 2007 FOIA amendments, and even more agencies (55 of 101) have FOIA regulations that predate and ignore President Obama’s and Attorney General Holder’s 2009 guidance for a “presumption of disclosure.”

Congress amended the Freedom of Information Act in 2007 to prohibit agencies from charging processing fees if they missed their response deadlines, to include new online journalists in the fee waiver category for the media, to order agencies to cooperate with the new FOIA ombudsman (the Office of Government Information Services, OGIS), and to require reports of specific data on their FOIA output, among other important provisions co-authored by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX). But half the government has yet to incorporate these changes in their regulations.

After President Obama’s “Day One” commitments to open government, Attorney General Eric Holder issued new FOIA guidance on March 19, 2009, declaring that agencies should adopt a “presumption of disclosure,” encourage discretionary releases if there was no foreseeable harm (even if technically covered by an exemption), proactively post the records of greatest public interest online, and remove “unnecessary bureaucratic hurdles” from the FOIA process. But five years later, the Archive found a majority of agencies have old regulations that simply ignore this guidance. In fact, during a March 11, 2014, hearing, Sen. Leahy went so far as to say he was “concerned the growing trend toward relying upon FOIA exemptions to withhold large swaths of government information is hindering the public’s right to know. It becomes too much of a temptation. If you screw up in government, just mark it top secret.”

Despite real hurdles –which should be addressed meaningfully rather than whitewashed– the Archive’s FOIA Audit also highlights some good news this Sunshine Week: namely that new plans from both the House of Representatives and the White House have the potential to compel delinquent agencies to update their regulations.

“Both Congress and the White House now recognize the problem of outdated FOIA regulations, and that is something to celebrate,” said Archive director Tom Blanton. “But new regs should not follow the Justice Department’s terrible lead, they must follow the best practices already identified by the FOIA ombuds office and FOIA experts.”

Check out the full audit here.

FRINFORMSUM 3/13/2014: Senators Grill DOJ’s Top FOIA Officer and Express Concerns the DOJ doesn’t Act According to Obama’s “Day One” Transparency Promise, and Sen. Feinstein Finally Condemns an Intel Agency’s Snooping –If Only Because it was on her Staff

March 13, 2014
Bigger stretch: Rose Mary Wood's?  Or the DOJ's 94.5 FOIA release claim?

Bigger stretch: Rose Mary Wood’s? Or the DOJ’s 94.5 FOIA release claim?

The Center for Effective Government (CEG) has released a FOIA report finding that eleven of the largest fifteen agencies that process the most FOIA requests received a grade of a D or an F.  The report raised some eyebrows in the open government community by giving the Department of Justice the second best overall score (a B minus, hardly an Ivy League Grade).  In our view, this inflated grade was largely due to CEG’s reliance on misleading metrics used by the DOJ itself in its reports to “cheerlead” a picture of FOIA that is rosier than reality.  As Unredacted pointed out last year, DOJ’s reported 94.5% release rate is a farce concocted by cooking its books to not count inadequate searches, “fee bullying,” and other administrative tactics used to increase FOIA denials without counting them among their statistics.  While CEG’s intense data collection is to be congratulated, the results don’t match up to the FOIA behavior we see every day from some of the agencies that CEG graded.

Melanie Pustay revealed in her Senate Judiciary hearing that her office will be spearheading the creation of a government-wide set of FOIA regs

Melanie Pustay revealed in her Senate Judiciary hearing that her office will be spearheading the creation of a government-wide set of FOIA regs

Members of the Senate Judiciary Committee grilled the Department of Justice’s Director of Information Policy, Melanie Pustay, during their March 11, 2014, FOIA hearing. According to its website, Pustay’s office “is responsible for encouraging agency compliance with the Freedom of Information Act (FOIA) and for ensuring that the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines are fully implemented across the government.”  During the hearing, however, ranking member Sen. Chuck Grassley (R-IA) voiced concern that the Department of Justice in particular acted in ways that are contrary to President Obama’s transparency promises. Yet, in response to a question from Sen. Blumenthal (D-CT), Pustay, revealed that her office was spearheading the project to create a standardized, government-wide set of FOIA regulations, which it hopes to complete “in a year or two.” Open Government advocates will be paying close attention to any such development to ensure that any standardized FOIA regulations follow best practice guidelines –not the DOJ’s.

Sen. Dianne Feinstein publicly accused the CIA of spying on her staff on the Senate floor. Photo: Bill Clark/CQ Roll Call

Sen. Dianne Feinstein publicly accused the CIA of spying on her staff on the Senate floor. Photo: Bill Clark/CQ Roll Call

The feud between the Senate Intelligence Committee and the CIA further escalated this week when Committee Chairwoman, Sen. Dianne Feinstein (D-CA) launched a blistering attack against the agency on the Senate floor. Sen. Feinstein accused the agency of concealing –then deleting– documents that the Senate Intelligence Committee was reviewing for its still-secret 6,000 page report on the agency’s now defunct torture program. The report has taken more than four years to complete, and has cost more than $40 million –partially because the CIA insisted that Committee staff only be allowed to review classified materials pertinent to the investigation at the agency’s secure facility in Northern Virginia, “[a]nd only after a group of outside contractors had reviewed the documents first.”

In response to the Senate’s spying allegations, the CIA general counsel, Robert Eatinger, filed a crimes report with the DOJ against the Senate Committee staff, accusing staffers of illegally accessing CIA networks they were not authorized to view. During her Senate speech, Sen. Feinstein noted that  “[f]or most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study. And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”

It’s worth noting that Sen. Feinstein has previously defended the National Security Agency’s (NSA) domestic dragnet surveillance practices, and only called out the CIA for its spying “after her staff was spied on and had key documents withheld and then reclassified.” Even though Sen. Feinstein may only be calling out the CIA because her staff was personally affected, hopefully this intelligence overreach will jar “Congress awake so that it resumes its role as overseer of the spies.”

Happy FOIA-ing!

Senator Feinstein Finds Out How it Feels to be a FOIA Requester

March 11, 2014

cia1Just in time for Sunshine Week, the must read document of the weekmonth, year is out.  It’s the “high-altitude electromagnetic pulse”  which Senator Dianne Feinstein (previously no foe of the Security State) has just launched at the Central Intelligence Agency.  In a Senate floor speech, she accused the Agency of concealing –then deleting– documents that the Senate Intelligence Committee was reviewing about the CIA torture program.  Her statement is a must read.  Even the Times’ headline “Feinstein Publicly Accuses C.I.A. of Spying on Congress,” is too soft.  Read the full statement here.

According to Feinstein, the Agency initially denied that it had removed the torture documents, then blamed the removal on IT staff, and subsequently and untruthfully stated that the removal of some torture documents “was ordered by the White House.”

Additionally, according to Feinstein, the CIA has attempted and failed to suppress the Senate Intelligence Committee’s access to a document she calls the “Panetta Review” of the torture program that largely (and as opposed to Director Brennan) agrees with the Senate Intelligence Committee’s findings.

A previous CIA release on its torture practices.

A previous CIA release on its torture practices.

She writes:  “The significance of the Internal Review given disparities between it and the June 2013 CIA response to the committee study. The Internal Panetta Review summary now at the secure committee office in the Hart Building is an especially significant document as it corroborates critical information in the committee’s 6,300-page Study that the CIA’s official response either objects to, denies, minimizes, or ignores.

Unlike the official response, these Panetta Review documents were in agreement with the committee’s findings. That’s what makes them so significant and important to protect.

When the Internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities.”

Dismayed that its secrets (potentially about the illegality of its torture program) were being exposed (to the security cleared Senate Intelligence Committee), “the CIA just went and searched the committee’s computers.”

According to Feinstein, “Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function… Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”

One more kicker: The CIA’s acting general counsel filed a crimes report concerning the committee staff’s(!) actions.  Feinstein acerbically notes:

“[F]for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.

And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”

*****

There of course is irony that Feinstein, who supports the NSA’s potentially illegal, formerly secret, dragnet of American telephone metadata, has launched the HEMP only after her staff was spied on and had key documents withheld and then reclassified.  This is the disdain with which the CIA treats the FOIA requesting public every day.

But we’ll take it.  This Intelligence Overreach may have well been the action that jars Congress awake so that it resumes its role as overseer of the spies.  As Feinstein writes, “this a defining moment for the oversight of our Intelligence Community. How Congress responds and how this is resolved will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee.”

Past is prologue.

Past is prologue.

It is also important to note that this is not the first time that Congress has been spied on by the entities it is supposed to oversee.  Just last year, in a response to a FOIA request and appeal, the National Security Archive received a NSA history revealing that in the 1960s the Agency spied on Senators Frank Church and Howard Baker (along with Martin Luther King, Jr., Muhammed Ali, and more than a thousand other Americans).

The Security State’s last overreach led to the a ramped up Freedom of Information Act, the Foreign Intelligence Surveillance Act (which the NSA was able to abuse to collect telephone metadata) the Church Committee Hearings, and –my favorite– Senator Gravel’s entering the entire Pentagon Papers into the Congressional Record, for all to read.

Of course, as the CIA’s FOIA office knows, there are other implications for the Agency.  The CIA Operational Files exemption (which Congress was hoodwinked into passing in 1984, and should repeal) explicitly states that   “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity” cannot be exempted from FOIA requests.

The Secret State has encroached too far.  It’s time for Congress to raise the veil.

FRINFORMSUM 3/6/2014: Battle Rages Between CIA and Senate Intel Committee over Torture Report, Conflicting Intelligence Analysis of the Ukraine Crisis, and More.

March 6, 2014
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

The battle between the CIA and the Senate Intelligence Committee over the Committee’s scathing 6,000-page report on the CIA’s defunct detention and interrogation program escalated this week after complaints that the CIA was “inappropriately monitoring” Committee staff while it completed its report. The complaints from Congress compelled the CIA’s inspector general (IG) to begin an inquiry, and the CIA’s IG has reportedly already referred the matter to the Department of Justice for action. The 6,000-page Committee report has yet to be declassified, despite pressure from the White House that it be disclosed, “in part because of a continuing dispute with the C.I.A. over some of its conclusions.” The report has taken more than four years to complete, and has cost more than $40 million –partially because the CIA insisted that Committee staff only be allowed to review classified materials pertinent to the investigation at the agency’s secure facility in Northern Virginia, “[a]nd only after a group of outside contractors had reviewed the documents first.” According to government officials, CIA officers gained access to the computer networks used by the Committee after the CIA became concerned that the Committee itself had inappropriately gained access to parts of the CIA’s computer network it was not authorized to view.

Lawmakers are seeking explanations for conflicting and erroneous intelligence reports on the Ukraine crisis. AP Photo

Lawmakers are seeking explanations for conflicting and erroneous intelligence reports on the Ukraine crisis. AP Photo

The House Intelligence Committee is seeking explanations for conflicting intelligence reports from the Defense Intelligence Agency (DIA), the CIA, and the Office of National Intelligence on the Ukraine crisis. Lawmakers reported that a classified DIA report issued earlier this week concluded that Russia’s troop movements near the Ukrainian border would not lead to military intervention, while a classified CIA report found that while there was a possibility that Russia would intervene in Ukraine, an invasion was unlikely. A closed-door briefing to members of Congress last Thursday by Robert Cardillo, Deputy Director of National Intelligence, further reported that military action in Ukraine was not imminent. Senate Intelligence Committee Chairwoman, Dianne Feinstein, told POLITICO that, “[w]e have to better deploy our resources… because we have large resources and it should not be possible for Russia to walk in and take over the Crimea and it’s a done deal by the time we know about it.”

While intelligence officials said it was possible that Putin’s decision to take military action was a spontaneous one, a former CIA officer speaking on the condition of anonymity argued that “the agency’s focus on counter-terrorism over the last 13 years has undermined its ability to conduct traditional espionage against key adversaries, including Russia.” The former officer further noted that the agency’s office in Kiev could not be larger than two or three agents.

The White House released an overview of Obama’s FY2015 budget request earlier this week, revealing that the administration is asking for $45.6 billion to fund the National Intelligence Budget. Matthew Aid points out that the proposal sets the goal of enhancing transparency and reforming signals intelligence programs, specifically stating that the intelligence community “will use its signals intelligence capabilities in a way that protects national security while supporting foreign policy, respecting privacy and civil liberties, maintaining the public trust, and reducing the risk of unauthorized disclosures.”

According to the agency’s inspector general report, the National Reconnaissance Office (NRO), which oversees the US’ intelligence satellites, makes frequent mistakes when making classification decisions. The IG report revealed that out of a sample of 134 documents, 114 contained classification mistakes. The report, which was conducted in response to the Reducing Over-Classification Act of 2010 and obtained in response to a FOIA request, found that NRO classification officials “lack sufficient knowledge of classification principles and procedures necessary to perform their duties…One OCA [original classification authority] had almost no knowledge of his responsibilities.” Secrecy News’ Steven Aftergood notes that, like other reports completed for the Reducing Over-Classification Act, “the NRO Inspector General review does not allow for the possibility that an agency could be in full compliance with classification rules and nevertheless be overclassifying information.”

The USS Pueblo docked in Pyongyang in 2010. For good measure, here is the official North Korean news agency report on the status of the spy ship: http://www.kcna.co.jp/item/2013/201302/news21/20130221-37ee.html

The USS Pueblo docked in Pyongyang in 2010. For good measure, here is the official North Korean news agency report on the status of the spy ship: http://www.kcna.co.jp/item/2013/201302/news21/20130221-37ee.html

The National Security Agency (NSA) recently released its fourth installment of documents on the 1968 capture of the USS Pueblo, a U.S. Navy intelligence collection ship, by North Korean forces. The 61 documents “comprise 236 pages of material, including maps, NSA memoranda, analytic assessments, chronologies, North Korean press releases, and other miscellaneous documents.” A previously declassified 1992 NSA report of the incident claimed that the massive amounts of classified material on board, as well as cipher equipment, were confiscated by the North Koreans and likely passed on to the Soviet Union and China. Despite the compromise of enormous amounts of sensitive information, LBJ conceded that “[p]robably the luckiest thing that happened to us was that we did not send people in there and have another Bay of Pigs.” The USS Pueblo is currently on display at the renovated Victorious Fatherland Liberation War Museum in Pyongyang.

Happy FOIA-ing!

FRINFORMSUM 2/27/2014: House Unanimously Passes FOIA Bill, DOJ will try to Inform Media Orgs if it Intends to Seize their Records in Leak Investigations, and More.

February 27, 2014
Not quite a nailbiter.

Not quite a nailbiter.

The bipartisan Freedom of Information Act Implementation Act (H.R.  1211), co-sponsored by Representatives Darrell Issa (R), Elijah Cummings (D), and Mike Quigley (D) unanimously passed the House earlier this week, leaving FOIA reforms in the hands of the Senate.  As written, the bill would: allow the Office of Government Information Services (OGIS) to submit reports and testimony directly to the Congress and the President rather than through the Office of Management and Budget and the Department of Justice’s Office of Information Policy; require each agency to update its FOIA regulations “not later than 180 days after the enactment of this Act;” codify the Obama administration’s “presumption of disclosure” language into law; advance an online, one-stop FOIA portal for requesters; and spur Inspectors General to monitor their agencies’ FOIA compliance. The bill is a good first step, and the Archive supports further strengthening the bill as it heads towards the Senate by: reforming the (b)(5) exemption; mandating a public interest test for (b)(3) statutory exemptions; and requiring that agencies post disclosed documents online to ensure that a “release to one is a release to all.”

The Pentagon released a proposal on Monday that would shift the Army to pre-WWII levels and see the Air Force “completely eliminate its A-10 attack airplane fleet” in an attempt to shift the military off the “war footing” it adopted after 9/11. Officials argue the budget cuts reflect both fiscal constraints and the political reality of a President “who pledged to end two costly and exhausting land wars.” The Department of Defense also announced that its counter-IED program, the Joint Improvised Explosive Device Defeat Organization (JIEDDO), will be scaled down to a third of its size over the next fiscal year (from 3,000 personnel to 1,000), with additional guidance that could bring the final personnel count to as low as 400.

NSA Inspector General, Dr. George Ellard, called Edward Snowden "manic in his thievery."  Photo: EPA

NSA Inspector General, Dr. George Ellard, called Edward Snowden “manic in his thievery.” Photo: EPA

The Inspector General for the National Security Agency (NSA), Dr. George Ellard, recently spoke publicly for the first time about Edward Snowden’s leaks. Ellard compared Snowden to Robert Hanssen, the FBI Supervisory Special Agent who sold secrets to the Soviets, saying that while Hanssen’s motives were clearly economic, “Snowden, in contrast, was manic in his thievery, which was exponentially larger than Hanssen’s. Hanssen’s theft was in a sense finite whereas Snowden is open-ended, as his agents decide daily which documents to disclose. Snowden had no background in intelligence and is likely unaware of the significance of the documents he stole.”

After his NSA reform speech last month, President Obama tasked the Justice Department and the Office of the Director of National Intelligence to report possible ways to restructure the NSA’s bulk phone data collection program to him not later than March 28. A month ahead of schedule, and the agencies have already presented the President with four options. The first two, “storing the data with phone companies or another government agency,” are the most feasible, but private phone companies are resistant to such a shift, and House Intelligence Committee Chairman, Mike Rogers, recently said the panel does not support transferring the NSA data to private phone companies at this point. Another proposal is to turn the data over to the FBI or the Foreign Intelligence Surveillance Court, though the FBI is already “intertwined” with the surveillance program. The final option is, of course, doing away with the program altogether. Meanwhile, the NSA is asking to keep its phone records for longer than five years in case the agency needs to use them as evidence in the “slew of privacy lawsuits filed in the wake of the Edward Snowden’s leaks” about its surveillance practices.

Agron Hasbajrami was informed evidence in his terrorism case was obtained by the NSA's controversial bulk phone collection program. Image: DOJ

Agron Hasbajrami was informed evidence in his terrorism case was obtained under Section 702 of the FISA Amendments Act of 2008. Image: DOJ

The Justice Department recently informed a New York man, Agron Hasbajrami, sentenced last January to a 15-year prison term for supporting terrorism, that evidence in his case was obtained from surveillance conducted without an individual warrant. This makes Hasbajrami the third criminal defendant since last fall “to be told that his prosecution involved surveillance under Section 702 of the FISA Amendments Act of 2008.” Jamshid Muhtorov, the first criminal defendant who was charged under the provision, is already challenging the law.

The American Bar Association asked the NSA how it deals with attorney-client privilege in the wake of reports that the agency spied on an American law firm representing Indonesia in a trade dispute with the US. ABA President, James R. Silkenat, said that “[w]hether or not those press reports are accurate, given the principles of ‘minimization’ under the law, we request your support in preserving fundamental attorney-client privilege protections for all clients and ensuring that the proper policies and procedures are in place at NSA to prevent the erosion of this important legal principle.”

The Justice Department announced last week that it will revise its rules for obtaining news media records during leak investigations, promising it will inform news organizations “in most instances” beforehand if it intends to seize their records. The rule change comes after the Justice Department came under fire for secretly subpoenaing two months of Associated Press records, and now states that “members of the Justice Department may apply for a search warrant to obtain a journalist’s materials only when that person is a focus of a criminal probe for conduct outside the scope of ordinary news-gathering.”

Kennedy and Khrushchev in Vienna, 1961.

Kennedy and Khrushchev in Vienna, 1961.

Finally this week, Slate magazine analyzed the CIA’s 1961 “personality sketch” of Soviet leader Nikita Khrushchev, a 15-page document that was part of a dossier given to JFK by the CIA prior to Kennedy’s meeting the Khrushchev later that year in Vienna (and available online at the Kennedy Library’s digital archives). According to the CIA document, Khrushchev had been working on refining his public persona, including giving up “his public drinking bouts.” Despite the dossier, by Kennedy’s own admission the meeting was a disaster, and afterwards Khrushchev threatened to isolate West Berlin, eventually building the Berlin Wall later that year. Take a look at the National Security Archive’s posts ‘The Making of the Limited Test Ban Treaty, 1958-1963,’ and ‘Dubious Secrets of the Cuban Missile Crisis‘ for more on Kennedy’s relationship with the Soviet leader.

Happy FOIA-ing!

Follow

Get every new post delivered to your Inbox.

Join 382 other followers