Archival Neglect: Flooding of FBI Archives Destroyed Hundreds of Thousands of Pages of Files Related to Civil Rights Movement History
Special to Unredacted by Trevor Griffey, PhD
This September 2nd marked the 50th anniversary of the launch of the Federal Bureau of Investigation’s (FBI) only major counterintelligence program (or COINTELPRO) to “to expose, disrupt and otherwise neutralize” right-wing organizations.
The FBI is often known for its opposition to the left rather than its opposition to the right. Ten of the its eleven COINTELPRO operations between 1956 and 1971 illegally sought to destroy the personal and professional lives of those who participated in left wing and anti-racist organizations— from the Communist Party to the Black Panther Party, from American supporters of Fidel Castro to proponents of Puerto Rican independence, from the Nation of Islam to Martin Luther King.
But the FBI’s COINTELPRO against “various Klans and hate organizations” marked an exception. Following years of criticism by civil rights activists who claimed that the FBI was not doing enough to prevent racial terrorism in the South, amidst the revival of the Third Ku Klux Klan, and at the height of the FBI’s investigation of the murder of three civil rights activists in Mississippi in June of 1964, the FBI initiated a campaign to destroy 19 different offshoots of the Third Ku Klux Klan, as well as nine other white nationalist organizations, including the American Nazi Party.
Within a year of first launching its COINTELPRO, the FBI estimated later that roughly 600 of the Klan’s 10,000 members were FBI informants. By 1967, according to a report first disclosed by the Church Committee, the FBI had “set up an entire klavern of the Klan composed of Bureau informants, and that they paid the expenses of setting up the organization” in order to produce a rivalry between an authentic Klan chapter and one under the FBI’s control.[i] The counterintelligence program’s architect, FBI Domestic Intelligence Director William Sullivan, claimed in his posthumously published memoir that “the counterintelligence techniques we brought to our fight against the Klan have been thoroughly damned by the press and the public, but our successful use of these techniques is what finally broke them up.”[ii]
A few scholars— most notably John Drabble and David Cunningham—have written about the FBI’s campaign to destroy the white nationalist movement in the 1960s. But popular memory of it remains low, with most scholarship and popular discussion about COINTELPRO focused on the FBI’s campaigns to disrupt the left.
To what degree were FBI agents and undercover informants in the Klan complicit in hate speech and hate crimes in the 1960s? What effect did FBI repression of the Klan during the 1960s have on the history of the right and on American politics more generally? These and other questions related to the history of the FBI’s COINTELPRO against the Klan deserve further investigation.
But unfortunately, valuable documents through which these and other questions could be investigated were destroyed last year during Hurricane Sandy. In a huge loss from a one-of-a-kind archive that had never been released to the public, somewhere between one fifth and one third of the FBI’s 62,000 page Birmingham, Alabama field office file on the United Klans of America (UKA) was destroyed by flooding of FBI archives in Alexandria, Virginia, according to documents that the FBI released last month to the web site Muckrock.org.
The UKA was a major target of the FBI’s COINTELPRO against white nationalist organizations. And as the “office of origin” for the FBI’s investigation of the UKA, the Birmingham field office played an essential role in the campaign. The Birmingham file on the UKA (file number 105-BH-722) likely contained voluminous materials that cannot be found in other FBI files— including transcripts of conversations recorded using wiretaps and bugs, informant reports, handwritten agent notes, and documentation of the secret society’s membership throughout the United States.
I submitted a FOIA request for a copy of the Birmingham file four years ago. In response, the FBI claimed that it could not locate the file. When I appealed, the Department of Justice’s Office of Information Policy forced the FBI to acknowledge the existence of the 62,000 page file, but the FBI then asked me to pay $2,000 for its declassification. Unable to afford the cost, I passed information about the file to a non-profit that specializes in researching white nationalist organizations. That organization submitted a FOIA request, but was denied a fee waiver. During the subsequent debate over whether to declassify the file for free, the archive containing the file flooded, and a significant part of the file is now lost to historians forever.
Millions of Pages of Files Destroyed
The FBI’s file on the UKA was just one of the thousands of FBI files damaged by flooding during Hurricane Sandy. The FBI provided Muckrock.org with an incomplete list of more than 76,000 volumes of files destroyed by flooding at its Alexandria archive last year, and plans to release more lists in the future. Each volume contained between 1-250 pages of documents, making it likely that millions of pages of documents were lost. And this doesn’t even include the 3,000+ cubic feet of files destroyed in the FBI’s Moonachie, New Jersey facility during the hurricane.
Though it’s difficult to assess the full scope of the damage based on the limited information released so far by the FBI, it’s clear that thousands of pages of files of significance for the study of civil rights movement history were damaged, including:
- Forty-one volumes (likely over 8,000 pages) from the FBI’s main headquarters file on the National Negro Labor Council (file number 100-HQ-367632)— one of the most important civil rights organizations of the early 1950s, which was driven out of existence by anticommunist pressure.
- Twenty-four volumes (almost 5,000 pages) from the FBI’s Chicago field office file on Claude Lightfoot (file number 61-CG-867), a prominent black communist for almost 60 years.
- Nineteen volumes (almost 4,000 pages) from the FBI’s Memphis field office file on the Nation of Islam (file number 105-ME-160).
- Eight volumes (roughly 1,500 pages) from the FBI’s massive Detroit field office general file on civil rights issues from the 1940s through the mid-1960s (file number 44-DE-00).
Some other files of significance to the study of the left include almost 3,000 pages from the FBI’s main headquarters file on peace activist David Dellinger (100-HQ-384411), and 1,500 pages from the FBI’s Chicago field office on the National Labor Federation (100-CG-55510). The list also documents damage to 300 volumes of Chicago field office files on illegal gambling (182 series), and the destruction of an astonishingly large file (perhaps 300,000 pages) on an unknown topic related to foreign counterintelligence or anti-racist nationalism produced by the FBI’s San Francisco field office (105-SF-16284).
The destruction of such historically significant files raises a number of serious questions about the FBI’s archival practices.
One obvious question is why FBI archives were susceptible to flooding, and whether the flooding has exposed weaknesses in the FBI’s records management practices more broadly.
A more important question, however, is: why are these archives in the possession of the FBI at all? Why does the FBI continue to retain millions of pages of historically significant files, many of which are over 50 years old, that have no relevance to its contemporary law enforcement mission? Why have these files not already been transferred to the National Archives?
Many of the historically significant files destroyed in the Virginia flooding included a series of files that were supposed to have been transferred to the National Archives during George W. Bush’s second term— “44 series” files on the civil rights movement. Almost ten years later, these files should not still be in the FBI’s possession.
Other files of major significance to the study of racial justice, the left, and U.S. foreign policy— particularly the FBI’s 105 series files, which include hundreds of thousands of pages of files on the Black Panther Party— remain in the FBI’s possession and decades away from ever being declassified or transferred to the National Archives.
These and other historically significant files that sit in secret FBI warehouses are vulnerable to more than just flooding. Decades-old standards for determining historical significance that tend to treat local history as unimportant, combined with wide latitude granted to FBI records management staff, have resulted in tragic and reckless destruction of many historically significant files.
Field office files are especially vulnerable to being destroyed. For example, there is almost no collection of FBI files of greater popular interest than the FBI’s files on its counterintelligence program against the black freedom movement in the late 1960s. But instead of preserving its field office files on this illegal program in their entirety, the FBI has been profoundly inconsistent. When the FBI assessed 29 field office files from this COINTELPRO for transfer to the National Archives between 2005 and 2008, it only transferred 14 files. It destroyed 12 others files, and withheld 3 from the National Archives.
Such reckless and inconsistent file implementation of records management standards, resulting in tragic and unnecessary destruction, demonstrates that the FBI is not the proper custodian of its own historic archive. This is probably unsurprising. After all, the FBI is led by law enforcement officers with an investment in secrecy, not librarians committed to transparency. But the recent massive archival losses from flooding, combined with the FBI’s inconsistent approach to archival preservation, suggests the need for much greater oversight by the National Archives before more historically valuable files are destroyed.
Trevor Griffey is a Lecturer in U.S. History and Labor Studies at the University of Washington’s Bothell and Seattle campuses. A co-founder of the Seattle Civil Rights and Labor History Project, he is currently working on publishing an online archive of FBI files on the black freedom movement in the 20th century.
[i] Church Committee Hearings, Volume 6 (1976), p. 144 http://archive.org/details/Church-Committee-Hearings-Volume6-FBI
[ii] William C. Sullivan and Bill Brown, The Bureau: My Thirty Years in Hoover’s FBI (New York: Norton, 1979), p. 128
The National Security Archive is pleased to announce the release of Nate Jones’s full (to date) collection of Able Archer 83 documents. In addition to the documents posted online in the Archive’s Able Archer Sourcebook, the physical collection, which is now available to researchers, contains new primary and secondary sources related to the NATO war game-turned nuclear war scare that played out across Europe in November of 1983, reverberations from which were felt long after the conclusion of the military exercise.
Some of the most interesting documents in the collection concern not only the lead-up to the military exercise, but its ramifications. Consider the December 30, 1983, CIA memo – drafted less than a month after Able Archer was completed –, titled “Soviet Thinking on the Possibility of Armed Confrontation with the United States.” In it, the CIA’s Office of Soviet Analysis comments on Moscow’s perceived feelings regarding US foreign policy. An excerpt states that US intelligence believed, “The [the Soviets] have charged that the United States is pursuing a nuclear first strike capability and preparing to unleash nuclear war as a means to crushing communism.”
Another source highlights the fear felt by Soviet officials at the time comes from a declassified State Department memo regarding Andrie Gromyko’s January 13, 1984, speech in Stockholm, Sweden. In the January 18, 1984, memo, Senior Deputy Assistant Secretary of State John H. Kelly writes to Deputy Secretary of State Lawrence Eagleburger on the strained US-Soviet relationship –while being careful not “to slam the door shut on renewed START and MBFR (Mutual Balanced Force Reduction)” negotiations.
An October 30, 1985, memo reveals more about the key source of the 1983 War Scare –Oleg Gordievsky. The memo –written by National Security advisor Robert McFarlane for President Reagan– outlines KGB defector Oleg Gorievsky’s suggestions for dealing with Soviet leader Mikhail Gorbachev:
Come and see the entire collection at the National Security Archive.
Ed. Note: Elena Burger was the primary force behind the organization and cataloging of the Able Archer Onsite Collection. Many thanks from the Archive.
DOJ Defends Spurious Redactions, Questions Remain about Stellarwind, and Much More: FRINFORMSUM 9/11/2014
A FOIA lawsuit over a decades-old FBI memo reveals not only the DOJ’s misuse of court resources and insistence on defending spurious FOIA redactions despite their merit, but also LBJ’s use of the FBI to vet a potential son-in-law, none other than actor George Hamilton. Villanova Law School professor Tuan Samahon filed a FOIA request in 2010 with the FBI seeking a memo Samahon wanted for a book he was writing on Supreme Court Justice Abe Fortas. He initially requested a two-page report by Cartha DeLoach, deputy director of the FBI, that Samahon hoped would reveal what, if any, “role the FBI may have played in the 1969 resignation of Fortas from the highest court after only four years.” The FBI released the 1966 memo with redactions, arguing that full disclosure would reveal embarrassing information about a private citizen. Samahon sued in 2012, arguing that there was no legal reason to withhold the document, with US District Judge Eduardo Robreno agreeing and subsequently ordering the release of the document. While the document did not contain the information Samahon initially sought, it did reveal that both Fortas and the FBI helped LBJ, in what Robreno called a “potentially illegal use of executive power,” dig up dirt on a young George Hamilton, who was dating LBJ’s daughter, Lynda Bird, and who LBJ was paranoid might be gay. “The court battle could have been avoided, [Samahon] said, had the FBI just released the documents and distanced itself from the previous administration.” It would also have been avoided, of course, if the DOJ refused to defend the agency’s dubious redactions in the first place.
Representatives Walter Jones (R-NC) and Stephen Lynch (D-MA), with the support of the Saudi government, are leading a bipartisan effort to declassify 28 pages that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. The Bush administration excised the pages, which detail Saudi involvement in the 9/11 attacks, on the grounds that their disclosure would harm national security. Rep. Jones contends, however, that the pages were withheld not to protect national security, but to hide aspects of the Bush administration’s relationship with the Saudis. According to Thomas Kean, chairman of the 9/11 Commission, the intense focus on the contents of the 28 pages overshadows the more important fact that “a ton of stuff” used for the Commission report, including interviews with Presidents Bill Clinton and George W. Bush, and Vice President Dick Cheney, remains classified. Kean said in an interview with the New Yorker’s Lawrence Wright, “I don’t know of a single thing in our report that should not be public after ten years.”
Matthew Aid recently posted a Government Accountability Office (GAO) report, “Personnel Security Clearances: Additional Guidance and Oversight Needed at DHS and DOD to Ensure Consistent Application of Revocation Process,” to his website. The GAO report found that both DHS and DOD’s implementation of the executive orders regulating security clearance procedures “have resulted in some employees experiencing different protections and processes than other employees,” and that the DOD is unaware how many of its employees currently have security clearances. “As a result, the total number of government employees eligible to access classified information that ODNI reports to Congress likely overstates the number of eligible DOD employees.”
A more fully declassified version of the 2004 Department of Justice Office of Legal Counsel (OLC) memo approving the National Security Agency’s (NSA) Stellarwind surveillance program, “a set of warrantless surveillance and data collection activities that President George W. Bush secretly authorized after the terrorist attacks of Sept. 11, 2001,” has been released. The newer version of the memo (initially disclosed during a FOIA lawsuit) was voluntarily declassified by the Obama administration “in light of the fact that it had declassified the existence of the bulk phone and email data programs last year after leaks” by NSA contractor Edward Snowden. The recently released version of the memo, however, still redacts why the Justice Department determined in 2004 that one aspect of Stellarwind, concerning the bulk collection of American’s emails, was illegal, while the continued collection of bulk phone records was not.
An unclassified five-page September 2, 2014, FBI report, “Cuba Intelligence Targeting of Academia,” asserts, “Cuba’s communist-led intelligence services are aggressively recruiting leftist American academics and university professors as spies and influence agents.” The report emphasizes that Cuba spends significant time “targeting and exploiting” liberal US academia, including “exploiting personal weaknesses and sexual entrapment.” The Washington Free Beacon reports that according to “CI Centre, a think tank, there have been 25 Cuban spies uncovered in the United States since the 1960s, including former CIA officer Philip Agee who defected and worked closely with both Cuban intelligence and the Soviet KGB starting in 1973.” One of the most notorious of the 25 Cuban spies is undoubtedly former DIA analyst Ana Montes, who is currently serving a 25-year prison sentence for spying. Archivist Jeff Richelson recently helped shed new light on the Montes case, successfully seeking the declassification of a 180-page 2005 DOD Inspector General study on her deception.
The DOD recently published its updated proposed FOIA rules in the Federal Register. To the DOD’s credit, the rules codify responding to FOIA requests with a “presumption in favor of disclosure,” and that FOIA responses should be timely. The rules, however, do not mandate that DOD components incorporate Executive Order 13526 section 3.1 (d), requiring agencies disclose “properly classified information” if the public interest outweighs the potential harm to national security (an idea supported by Director of National Intelligence General Counsel Robert Litt), into their declassification decisions. The rules also seem to include an extremely broad interpretation of the b(5) FOIA exemption –including a litany of headshaking examples when the exemption could be used. B(5) withholdings have skyrocketed in recent years to hide everything from a 30 year old history of the Bay of Pigs invasion, to information surrounding deaths due to delays at Veterans Affairs Administration hospitals. The new DOD FOIA rules continue this trend, listing instances when “drafts of final records” may be exempt, “expert advice from external entities” may qualify as “agency” communications and be withheld, and ways “factual” material (which usually cannot be withheld from a FOIA requester) can be denied — including staff papers, after-action reports, and inspection reports — pursuant to the b(5) exemption by DOD employees. The public can comment on these new rules by contacting the DOD’s FOIA Liaison, James Hogan, until November 3, 2014.
David Murphy, who served as the CIA’s Berlin Operations Base chief from 1959 to 1961 and later as the agency’s Soviet Operations chief, recently died at the age of 93. Murphy presided over CIA operations in Berlin in the tense lead-up to the construction of the Berlin Wall, and later co-wrote a book with KGB officer Sergei A. Kondrashev – who handled British double-agent George Blake – and journalist George Bailey on Blake’s revelation to the KGB that British and Americans planned to build a tunnel into the Russian sector that would allow them to tap Soviet communications. According to the book, the KGB’s desire to protect Blake’s cover meant, “the Soviets could do virtually nothing to shield their communications.”
This week’s #tbt document pick concerns another part of Murphy’s career: CIA chief of counter-intelligence’s, James J. Angleton, “molehunt” for Soviet agents within the CIA. Angleton, along with KGB defector Anatoliy Golitsyn, promulgated the concern of a Soviet “Monster Plot” at the CIA, asserting that the Soviets had conducted a “decades-long, massive and successful deception operations against the West, including the use of false defectors and volunteers,” with David Murphy falling under the wide-ranging suspicion. While Murphy was later exonerated and CIA director William Colby forced Angleton out of the agency in 1974, today’s #tbt document pick is the Secret December 2011 Studies in Intelligence article on the effects the “molehunt” had on internal CIA operations and personnel, including David Murphy (page 14).
This article originally appeared in The Brechner Report.
The Tampa Tribune reporter Howard Altman submitted a Freedom of Information Act request to the Department of Veterans Affairs earlier this year to learn the names of hospitals where 19 veterans died due to medical screening delays.
Despite nationwide reports citing the deaths and the high public interest in information on the circumstances surrounding them, the VA denied Altman’s request, citing the b(5) “deliberative process” exemption. The VA argued that the documents Altman was seeking were “preliminary,” and that because “of potential variances in the preliminary data, premature release of this information would inaccurately inform the public concerning this matter.”
The b(5) exemption cited by the VA potentially covers any “inter-agency or intra-agency memorandums or letters” and Congress intended its application to be narrow in scope. Agencies, however, are increasingly citing the b(5) exemption to hide any “draft” or “predecisional” document from the public, leading to the nickname the “withhold it because you want to” exemption.
In addition to hiding potentially embarrassing or illegal activities at the VA, the b(5) exemption has also been used to withhold historically significant documents on the 20-year-old Rwandan genocide; shield a 30-year-old history of the 53-year-old Bay of Pigs invasion from public scrutiny on the spurious grounds that its release could “confuse the public;” hide a report critical of the Department of Justice’s workplace diversity initiatives; and deny access to the DOJ’s Office of Legal Counsel opinions, which form a body of law that binds all federal agencies concerning highly controversial programs, including enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance.
According to statistics compiled by The Associated Press earlier this year, the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government. These numbers confirm that the b(5) exemption is proving to be an increasingly attractive tool for agencies to deny information, despite the fact that this exemption has the highest possibility for discretionary release.
If agencies followed President Obama’s 2009 FOIA memo instructing all agencies “to adopt a presumption in the favor of disclosure,” and Attorney General Holder’s guidance that documents should not be withheld “merely because [an agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” we should be seeing the application of the b(5) exemption a lot less – not more. Sadly, it is clear that the President and Attorney General’s mandates have not motivated intransigent agencies to embrace discretionary releases.
Agencies’ continued misapplication and overuse of the b(5) exemption, despite President Obama’s and Attorney General Holder’s clear directives to the contrary, has prompted a longstanding push by the open government community for a legislative fix to end agencies’ practices of withholding too much information.
These efforts to rein in the b(5) exemption recently culminated in the Senate when Sens. Leahy (D-VT) and Cornyn (R-TX) introduced legislation to fix the b(5) loophole: the FOIA Improvement Act of 2014, which would stipulate, among other improvements, that historical documents (documents created over 25 years ago) cannot be withheld under b(5), and would require agencies to balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents.
The b(5) pre-decisional exemption was initially conceived to prevent government employees from “working in a fish bowl,” and to allow employees to give each other –and their supervisors– candid advice. These protections should and will remain.
President Obama has correctly stated, however, that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors or failures, or because of speculative or abstract fears. Unfortunately, these are precisely the things the b(5) “withhold it because you want to” exemption is being increasingly used to hide, as evidenced so plainly by the obfuscation of strictly factual information surrounding the deaths of 19 veterans waiting for medical treatment.
As Sens. Leahy and Cornyn have realized, the Freedom of Information Act’s b(5) loophole must be legislatively closed to prevent agencies from abusing this exemption to “hide errors or failures,” and to ensure that the principles of open government are fulfilled.
Lauren Harper is a Research Assistant at the National Security Archive focusing on FOIA advocacy and open government, as well as on U.S.-Iraq relations.
Alaskans Trained as “Stay-Behind” Agents in Case of Invasion, DOJ Considers Invoking State Secrets Privilege in Private Defamation Lawsuit, and Much More: FRINFORMSUM 9/5/2014
Government Attic recently posted hundreds of pages of newly-declassified documents on a highly classified project, code-named “Washtub,” detailing US efforts in the 1950s to recruit and train “fishermen, bush pilots, trappers and other private citizens across Alaska for a covert network to feed wartime intelligence to the military.” The documents, released thanks to a FOIA request, reveal the “secret plan was to have citizen-agents in key locations in Alaska ready to hide from the [Soviet] invaders of what was then only a U.S. territory. The citizen-agents would find their way to survival caches of food, cold-weather gear, message-coding material and radios. In hiding they would transmit word of enemy movements.” While the feared invasion never took place, the Air Force Office of Special Investigations trained 89 “stay-behind agents,” all of whom received extensive training in coding and decoding techniques, though it was noted that it was impossible training for the “backwoodsmen to master in 15 hours.” The documents also note that “Eskimo, Indian and Aleut groups in the Territory should be avoided in view of their propensities to drink to excess and their fundamental indifference to constituted governments and political philosophies. It is pointed out that their prime concern is with survival and their allegiance would easily shift to any power in control.”
The Department of Justice (DOJ) is mulling whether or not to invoke the state secrets privilege in a private defamation lawsuit against United Against Nuclear Iran, a group that consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” The group is currently being sued by Greek shipping mogul Victor Restis after the group accused him of violating sanctions by exporting oil from Iran. The DOJ has already fought to shield the group’s files, including its donor list, during the proceedings, and argued earlier this year that “the material in question could be protected under a privilege designed to prevent the public release of law enforcement techniques, confidential sources, undercover operatives and active investigations.” The government has until September 12 to decide if it will invoke the state secrets privilege.
The 2nd US Circuit Court of Appeals heard arguments earlier this week on the constitutionality of the government’s bulk phone records collection program. The case, brought by the American Civil Liberties Union (ACLU), brings the issue of bulk records collection before a federal appeals court for the first time, and concerns whether aspects of the government’s post-9/11 counterterrorism program – specifically the National Security Agency’s (NSA) daily vacuuming up of millions of phone records – violates the Fourth Amendment and Section 215 of the Patriot Act. The government has justified the bulk records collection by citing Section 215, which “requires that records sought be ‘relevant’ to an authorized investigation,” though lawyers for the ACLU have expressed doubt that all of a phone company’s customer call records could possibly be “relevant” to an investigation, arguing instead they are a convenience. The three judge panel also expressed concerns that the same arguments used to justify the collection of bulk phone records could also be applied to credit card and bank records.
The 2nd US Circuit Court of Appeals also ruled this week that photos of Mohammed al-Qahtani, a Saudi national currently being held at Guantanamo who US officials said “intended” to be the 20th 9/11 hijacker, may remain classified. Al-Qahtani was “subject to interrogation techniques that a government official likened to torture,” and the court ruled that the disclosure “of photographs, videos and other audiovisual evidence of his confinement conditions” in response to a FOIA request from the Center for Constitutional Rights “could logically and plausibly harm national security because these images are uniquely susceptible to use by anti-American extremists as propaganda to incite violence against United States interests domestically and abroad.”
President Obama recently appointed the former head of the Federal Communications Commission, Julius Genachowski, to head the president’s intelligence advisory board. “UPS Chairman Scott Davis, former Nuclear Regulatory Commission Chairwoman Shirley Ann Jackson and Neal Wolin, the former No. 2 at the Treasury Department,” were also among the seven new members appointed to the committee, tasked with improving “the way intelligence agencies function, including their organizational structure and compliance with the law.”
Retired Navy Warrant Officer John A. Walker Jr., convicted of leading his family in a Soviet spy ring during the Cold War, died last week at the age of 77. Walker, a cryptologist who “used his high-level security clearance to provide Navy codes, ship locations, and other sensitive data in exchange for cash,” was sentenced to life in prison in 1985. At the time of his conviction, Walker’s leaks were considered “among the largest and most devastating leaks of military secrets in the nation’s history.”
The Office of Government Information Services (OGIS), the federal FOIA ombuds office, has begun posting the comments received by the FOIA Advisory Committee. The Committee, comprised of 10 government officials and 10 non-governmental FOIA experts – including Archive FOIA Coordinator Nate Jones –, is tasked with finding ways to improve the government’s processing of FOIA requests, and solicited comments from the public in order to do so. Two of the posted letters were submitted by Michael Ravnitzky and brought attention to the issues of wage garnishment in FOIA cases with unpaid fees, and outdated information on the FOIA.gov site. A separate letter from the National Security Counselor’s Kel McClanahan concerns the Department of Justice’s “Opportunistic Argument Effect,” in which it takes a position in litigation “not because it has a good faith belief that the position is correct, but because taking the position in that particular case will improve its chances of winning, and perhaps get a piece of favorable case law out of it.” McClanahan’s letter cited Nate Jones’ recent posting on the CIA’s misapplication and retraction of FOIA exemptions once it became apparent the agency “could obtain no further litigation advantage from the argument,” with McClanahan further noting that there are no disincentives for DOJ civil litigators to argue “for any position he pleases, and until there is, we simply cannot trust that DOJ is only making the arguments that the law calls for.”
This week’s #tbt document pick, inspired by McClanahan’s comments to the FOIA Advisory Committee, is the Department of Justice’s March 19, 2009, new FOIA guidelines. The 5-year-old guidance iterates that, among other things, “the Department of Justice will only defend withholdings in court when there is a reasonably foreseeable risk of harm to an interest protected by one of the FOIA exemptions or the law requires the information to be withheld. It states that this policy will be applied to pending litigation ‘if practicable’ and ‘where there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.’” As Kel McChanahan has pointed out, this guidance has yet to be fully embraced.
Costa Rica Investigating US Anti-Cuban Activism, CIA Torture Report, New Iran-Contra Book, and Much More: FRINFORMSUM 8/28/2014
Costa Rica’s director of intelligence, Mariano Figueres, announced that his government will investigate secret US programs that employed Costa Rican citizens in efforts to destabilize the Cuban government. Figueres announced the investigation in response to an August 4, 2014, Associated Press story alleging that USAID employed Costa Rican, Peruvian, and Venezuelan youths to participate in Cuban HIV prevention programs as a cover for US-sponsored anti-Cuban activism. According to interviews, the HIV-prevention ruse was called the “perfect excuse” to recruit political activists.
A recent article in the Washington Times laid out the CIA’s first counter-punch to deflect criticism before the release of Senate Intelligence Committee’s scathing report on the agency’s torture program. In the article, “one of the CIA’s most respected retired officers,” Jose Rodriguez, railed against the Committee for not interviewing agency senior staff involved in the program because “they had their foregone conclusions with what they wanted to say in this report, and they did not want the facts to get in the way.” The irony of Rodriguez accusing the Committee of not looking hard enough for “the truth,” of course, is that Rodriguez authorized the destruction of 92 video recordings of Abu Zubaydah being waterboarded 83 times in one month in a black prison site back in 2005. Rodriguez justified the destruction by writing that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.”
The involvement of Director of National Intelligence General Counsel, Robert S. Litt, in the declassification of the Senate report is adding another layer of controversy to the already contentious declassification process. Before his current position, Litt was a private defense lawyer “who represented several CIA officials in matters relating to the agency’s detention and interrogation program.” While Senate Intelligence Committee chair Senator Dianne Feinstein (D-CA) said she had no concerns about a potential conflict of interest, Senator Mark Udall (D-CO) said he remains “concerned about who continues to lead and drive the [declassification] process.” For our part, the National Security Archive hopes that Litt’s involvement in the declassification process will embody his recent announcement urging classifiers and declassifiers to ask, “not can we classify –but should we?”
An August 25 Intercept article, using documents leaked by former National Security Agency (NSA) contractor Edward Snowden, provided a glimpse of ICREACH, the NSA’s “‘Google-like’ search engine built to share more than 850 billion records about phone calls, emails, cellphone locations, and internet chats.” Planning documents for the search engine list the FBI and Drug Enforcement Agency as “key participants,” and “has been accessible to more than 1,000 analysts at 23 U.S. government agencies that perform intelligence work.” Former NSA chief Gen. Keith Alexander developed the original framework for ICREACH in 2006 (though its roots trace back to the early 1990’s DEA-CIA project CRISSCROSS), and shares data swept up under Regan-era Executive Order 12333. As those who have followed closely know, the USA Freedom Act of 2014 introduced by Senator Leahy (D-VT) would focus on telephone record collection under Section 215 and FISA Court reform, not information vacuumed up by EO 12333.
The Department of Veterans Affairs’ inspector general office released a report confirming that hospital delays and “poor care” led to deaths of numerous veterans in a Phoenix hospital. Earlier this year a Tampa Tribune reporter submitted a FOIA request for the names of other VA hospitals were patients died due to delays, but was denied. VA officials refused to disclose any documents responsive to his request by citing the b(5) “predecisional” FOIA exemption, and stating that the documents were “preliminary” communications and could therefore be withheld. Voicing support – by calling your Senator or writing an op-ed for your local paper, for example – for the FOIA Improvement Act of 2014 would help end the increasing misapplication of the b(5) “withhold it because you want to” exemption, recently used not only to hide wrongdoing at the VA, but also to conceal unflattering Department of Justice diversity studies and histories of the Bay of Pigs invasion, and would go a long way to force agencies to finally adopt President Obama’s mandate to act with a “presumption in favor of disclosure.”
The FBI cancelled plans to award a $500 million sole-source contract to Motorola Solutions in the wake of protests by other contractors. One of Motorola’s competitors, Harris Corporation, filed an official complaint to the Government Accountability Office regarding the no-bid award to Motorola Solutions, specifically complaining that the FBI’s claim that Motorola’s software was proprietary and prevented it from interacting with other systems was untrue. A McClatchy News investigation earlier this year further detailed “how Motorola has dominated the industry for decades, building deep loyalty among law enforcement and firefighting agencies and benefiting from biased contract specifications and other forms of favoritism from contracting officials,” prompting House Democrats to send a letter to the Department of Homeland Security’s inspector general requesting an inquiry into the government’s alleged favoritism towards Motorola; the DHS IG has yet to announce whether an audit or an investigation will be conducted.
World War II’s Manhattan Project to develop the world’s first atomic bomb generated more than 1,500 leak investigations, roughly 200 sabotage cases, and about 100 espionage cases. This information is now available thanks to the Department of Energy’s posting of the most recent declassified volume of the official Manhattan District History; all 36 volumes of the history are now declassified and available online.
The Wilson Center’s Cold War International History Project has posted a fascinating dossier of Stasi documents detailing East German aid to the North Vietnamese security apparatus from 1965 until the end of the Cold War. The 13 documents for this “generally unknown” aspect of Soviet bloc aid to Hanoi are all available here.
The Archive’s deputy director and Iran expert, Malcolm Byrne, is the author of a new book on the Iran-Contra scandal, Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power. Byrne’s latest book “provides fascinating details about US ignorance about Iran, which contributed to the largely botched effort to free US hostages in Lebanon and hindered a possible breakthrough in US-Iran ties 30 years ago.” Byrne utilizes both declassified documents and the private papers of key members of the Reagan administration to paint a picture of an administration knowingly “Trying to dress up executive branch overreach in attractive strategic clothing.”
To celebrate the release of Malcolm Byrne’s latest book, this week’s #tbt document pick is a throwback to a 2011 Archive posting highlighting the ‘top 5’ Iran-Contra historical documents, specifically the Top Secret/Sensitive April 4, 1986, Oliver North Memorandum, “Release of American Hostages in Beirut,” which is the main piece of evidence to survive North’s infamous document “shredding party,” and spells out the plan to use “residuals” from the Iran arms deals to fund the anti-Sandinistas.
The CIA Misapplies FOIA Exemptions to Continue its Covert Attack on Mandatory Declassification Review. And Why it Matters.
On Friday September 23, 2011, the Central Intelligence Agency snuck two pages into the Federal Register –without a notice for public comment. These two pages allowed the CIA –overnight, without informing anyone– to decree that declassification reviews would now cost requesters up to $72 per hour, even if no information is found or released. To even submit a request –again, even if no documents are released– the public would have to agree to pay a minimum of $15.
The Agency made this change to price the public out of submitting Mandatory Declassification Review requests because it wanted to avoid the independent accountability and oversight that the Mandatory Declassification Review process provides. Unlike the Freedom of Information Act, adverse MDR responses are subject to review by the Interagency Security Classification Appeals Panel (ISCAP), which regularly overturns CIA denials. According to the US Information Security Oversight Office, ISCAP officials have overruled agency classification decisions more than 70 percent of the time since 1996. Because the CIA, by all appearances, resents that the public can turn to an independent panel to question and overturn its dubious classification decisions, the Agency is attempting to charge outrageous fees to deter citizens from requesting information. The previous Agency regulations said MDR review fees must mirror FOIA fees, a much fairer and cheaper fee structure.
Fortunately, after thirty-six groups signed on to fight to force the CIA to repeal its regulations (and after Kel McClanahan of National Security Counselors filed a still-ongoing lawsuit showing this secret regulations change was illegal), the CIA “as a courtesy to requesters…has decided not to charge fees under the new [Mandatory Declassification Review] regulation while judicial review of the regulation is pending.”
But the Agency is still abusing Freedom of Information Act to hide its justifications and reasoning for why it chose to change its regulations to attempt to price out requesters and directly contradict the “New Era of Open Government.”
After the National Security Archive learned about the CIA’s unannounced effort to price out citizens from submitting MDR requests, we filed a Freedom of Information Act request for the “emails, memos, position papers, power point presentations, and reports” about the agency’s decision to radically change its MDR fee structure. We filed a FOIA, rather than an MDR, because the documents we requested were not classified, as they did not relate to US National Security. (–Wait for it…)
The Agency responded that an unspecified amount of “material” was located and withheld under an (illegally) unspecified b(3) statute and under the b(5) “withhold it because you want to” predecisional exemption.
ED NOTE: (READ UP ABOUT THE “WITHHOLD IT BECAUSE YOU WANT TO” EXEMPTION RIGHT AWAY AND URGE YOUR SENATOR TO PASS THE FOIA IMPROVEMENT ACT WHICH FIXES IT. THE ACT HAS BIPARTISAN SUPPORT, HAS ALREADY PASSED THE HOUSE, AND HAS A VERY GOOD SHOT AT BECOMING LAW.)
Of course, we appealed. Then, this week we got another bizarre response from the Agency. The Agency stated that litigation about the documents by another party had concluded. Strangely, the Agency also changed the justification it used to withhold the documents from b(3) and b(5) (predecisional) to b(3) and b(1) (National Security)!
The list of titles of the “material” withheld shows none of the documents are classified, and that none could conceivably “cause harm” to US National Security.
The CIA’s pernicious behavior was even more evident when the National Security Archive found the “other party” that was litigating these documents’ release. It was the above-mentioned Kel McClanahan. He passed along the Vaughn Index1 created in response to his litigation.
According to the Vaughn index in McClanahan’s court case, the documents in question were withheld under b(5) and b(3) exemptions. McClanahan told me that the Agency argued vociferously in court that the release of documents on why the Agency changed its MDR fee structure would have a “chilling effect” on Agency morale, and thus must be withheld under “predecisional” exemption 5. An argument that the Agency bizarrely dropped in my case.
McClanahan’s Vaughn index shows that when dealing with him, the agency did not evoke the b(1) National Security exemption. And according to the Vaughn index, only CIA employee names, office locations, and phone numbers needed to be redacted.
In short, the Agency either sloppily applied its exemptions to hide why it changed its MDR fees; arbitrarily applied its exemptions to hide why it changed its MDR fees; or both.
The result is that a policy change that should have been explained and debated in public in the first place was not. And after the public used to last resort of the Freedom of Information Act to attempt to discover what happened, the Agency abused that law to hide its policy change as well.
The Agency’s Information and Privacy Coordinator Michelle Meeks signed the denial letter. She was chosen to sit on the US government’s FOIA Advisory Committee, a committee established to “to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” I planned to ask her about here agency’s new, retrograde declassification fees at the Advisory Committee’s first meeting, but she did not attend.
Likewise, the National Security Archive brought our concerns to the White House, to the Information Security Oversight Office responsible for “the oversight of the Government-wide security classification,” and to the Public Interest Declassification Board established “to promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.” All demurred, unwilling or unable to curtail the CIA’s anti-transparency pivot.
In the end, the lack of oversight that allowed the CIA’s covert attack on Mandatory Declassification Review is endemic of the lack of oversight of the Agency overall. When an agency is allowed to secretly change its processes to price out members of the public who request that previously secret information be declassified, it is no surprise that it is also allowed to ignore requirements to publish budget information, to install email requesting runarounds that would make Joseph Heller sigh, to extrajudicially assassinate Americans oversees (including an innocent sixteen-year-old), to establish black torture sites, to spy of the Senate staffers writing a report on CIA torture, and to then decide, itself, which portions of the Senate report on the CIA’s torture the public should be allowed to see.
If the government officials charged with overseeing the Central Intelligence Agency are unable or unwilling to force easy policy corrections, such as not secretly attempting to price out Declassification Reviews, there is no reason to hope that Agency overseers are capable or willing to prevent the CIA from committing its much more horrendous activities.
1. A Vaughn Index is a list and brief description of withheld documents that a requester can obtain only if he sues in court. An agency is required only to give a document count to requeters who don’t sue (and in this case, the CIA broke the law and did not even provide the National Secruity Archive that).↩