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FOIA Releases Shed Light on al-Awlaki Role in Failed 2009 Bombing, Scott Pruitt’s Close Ties to Energy Industry, and Much More: FRINFORMSUM 2/23/2017

February 23, 2017

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FOIA Request Reveals Anwar al-Awlaki’s Role in Failed 2009 Bombing

A federal judge’s order that the FBI conduct a line-by-line review of documents on radicalized American imam Anwar al-Awlaki’s role in an attempted 2009 airline bombing forced the agency to release hundreds of historically significant pages. The documents were initially requested by New York Times reporter Scott Shane, then working on a book about Awlaki – “the first American citizen deliberately killed on the order of a president, without criminal charges or trial, since the Civil War.” The FBI refused to release them, at which point the paper sued. Two years later, the agency was forced to release the records – FBI interviews with Umar Farouk Abdulmutallab, an al Qaeda operative convicted of attempting to blow up a flight to Detroit on December 25, 2009.

The interviews are significant for a number of reasons. First and foremost, they “suggest that the Obama administration had ample firsthand testimony from Mr. Abdulmutallab that the cleric oversaw his training and conceived the plot.” The documents also bolster arguments by experienced interrogators that torture is not useful or necessary to extract important information from suspects; the detailed descriptions interrogators were able to glean of the al Qaeda compound in Yemen provided by Abdulmutallab “were so precise that it is likely they have helped shape targeting decisions in the American drone campaign” there.

In 2015 Shane compiled and edited “The Anwar al-Awlaki File” for the National Security Archive – a posting containing 22 documents obtained under the FOIA that sheds significant light on the American government’s knowledge and understanding of the cleric.

Oklahoma FOIA Release Shows Pruitt’s Close Ties with Energy Industry

7,500 pages of emails and other records released under FOIA to the Center for Media and Democracy two days after Scott Pruitt was confirmed as the new head of the Environmental Protection Agency show Pruitt “closely coordinated with major oil and gas producers, electric utilities and political groups with ties to the libertarian billionaire brothers Charles G. and David H. Koch to roll back environmental regulations.” A move by Senate Democrats to delay Pruitt’s confirmation vote until after the emails from Pruitt’s tenure as Oklahoma Attorney General were published was defeated by Republicans. Many of the emails had been published by the New York Times in 2014, but the totality of this week’s release “captures just how much at war Mr. Pruitt was with the E.P.A. and how cozy he was with the industries that he is now charged with policing.”

Judge Tells FBI Argument for Exemption “Falls Woefully Short,” but Bureau Gets Another Chance to Justify Withholdings

U.S. District Court Judge Amit Mehta told the FBI’s lawyers in a FOIA lawsuit that their argument for invoking FOIA’s law enforcement exemption “falls woefully short” and was “particularly inadequate.” The case was brought by the Electronic Privacy Information Center, which sued the bureau for “copies of the FBI’s ‘privacy impact assessments’ and ‘privacy threshold analyses’ on various bureau databases containing personal information.” The bureau released 2,200 redacted pages, arguing the withheld information would compromise law enforcement methods or techniques. Mehta disagreed, saying the agency didn’t prove that the redacted information was actually compiled for law enforcement purposes; Mehta “also faulted the FBI for failing to explain in detail how it searched for records responsive to EPIC’s request.” Josh Gerstein notes EPIC’s win may only be temporary, “since the judge said he would give the FBI and its Justice Department attorneys another crack at justifying the withholdings and explaining the search process.”

searchsurvey2How Does Your Agency Conduct a FOIA Search?

The National Security Archive and the Project on Government Oversight are distributing an unofficial survey for both FOIA processors and FOIA requesters on how agencies conduct searches. The goal of the survey will be to collect data on disparate agency search methods and software – and the more people who fill it out, the more useful the collected data will be.

Please take 10-15 minutes to fill out the survey and help us circulate it as widely as possible.

CBP Gives 5-Day Deadline for “Still Interested” Letter 

The Memory Hole’s Russ Kick recently posted a photo of a FOIA response from Customs and Border Protection giving him only five days to respond to a “still interested” letter before closing the request, which concerned Trump’s January 27 Executive Order on immigration. In other words, the CBP is issuing “still interested” letters with an absurdly short response time for FOIA requests that are, at most, 27 days old.

The insult of the five-day deadline is made worse by the fact that there is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.”

CBP told the Office of Government Information Services (OGIS) during its FY 2016 FOIA compliance report that CBP’s “FOIA Office has not used ‘still interested’ letters since FY 2012.” OGIS also noted in its compliance report that, “In 2012, CBP administratively closed 11,000 FOIA requests and sent letters to the requesters informing them of the closure and that they should contact the agency if they were still interested in the agency processing the request; the agency had to re-open the requests and process them.” Either CBP was being untruthful with OGIS while the ombuds office was conducting its FY2016 report, or the agency has decided to drastically change course on issuing these letters in the time since OGIS published its compliance report. (OGIS has also issued several good reports on agency use of “still interested” letters that CBP should re-read, noting first among its findings that the data “does not capture requester frustration” at receiving these letters.)

CBP’s letter is also in violation of guidance issued by the Justice Department’s Office of Information Policy (OIP) in July 2015, which clearly requires agencies provide requesters a reasonable amount of time to respond to a still interested letter (30 days at a minimum).

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CBP isn’t alone in trying to proactively close FOIA requests. Amie Stepanovich, the policy manager for Access Now, recently spotlighted an absurd FOIA response from the Interior Department that said, “We expect to issue our determination response to you by March 9, 2017. If you do not receive our response by that date, you may consider your request administratively denied and file an appeal.”

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B5 Upheld in State Department Handling of Clinton Emails

U.S. District Judge James E. Boasberg is upholding the State Department’s use of FOIA’s exemption 5 – the deliberative process exemption – to withhold agency discussions about Hillary Clinton’s emails in a FOIA lawsuit brought by Judicial Watch. In the ruling Boasberg found, ““A document sheds light on misconduct when it ‘reflects any governmental impropriety,’ but not when it merely reflects a ‘part of the legitimate government process intended to be protected by Exemption 5.’” Judicial Watch has not yet announced if it will appeal the decision.

Child Care Center Emergency Plans Were Among Building Info Endangered by GSA Cloud Security Lapses

A 2014 General Services Administration Office of Inspector General report found that sensitive building information – which could be employed in attempts to damage people or property – was available to individuals without a need to know.

Specific sensitive but unclassified building information that was available included:
– Child care center emergency plans;
– Evacuation routes;
– Detailed vulnerability assessments containing explosive blast loads for courthouses and blueprints pinpointing location of judges’ chambers;
– Security and mail screening procedures for a National Nuclear Security Administration campus.

The report was released in January 2017 because the vulnerabilities “no longer exist,” and is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, February 22.

FEMA Didn’t Realize it was Ordering Lethal Ricin for Years

FOIA-released records obtained by USA TODAY show that “Officials at a federal training facility that mistakenly exposed thousands of first responders to deadly ricin toxin were worried five years ago that their vendor had shipped the wrong type of powder.” Alison Young reports that FEMA and the Department of Homeland Security are currently investigating the incident, which FEMA blames on a vendor whose identity is redacted from the released documents, but notes there’s been no explanation why it took FEMA so long to spot the potentially lethal problem.

TBT Pick – Iraq: The Media War Plan

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This week’s #tbt pick is a 2007 posting from our Iraq Project that spotlights a Defense Department White Paper and PowerPoint briefing that recommend a “Rapid Reaction Media Team” that would “serve as a bridge between Iraq’s formerly state-controlled news outlets and an ‘Iraqi Free Media’ network.” According to analysis by Iraq Project Director Joyce Battle, “the rapid reaction team would create narratives leading Iraqis to feel, Pentagon planners enthused, like North Koreans who turned off state TV at night and in the morning turned on ‘the rich fare of South Korean TV . . . as their very own.’ Foreshadowing the unfolding of the U.S. government’s Iraq media policy, preliminary work would not come cheap – Defense Department planners recommended paying two U.S. consultants $140,000 each for a campaign of six months duration.”

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Happy FOIA-ing!

 

Scottish FOI Release on Dealings with Trump Golf Course, NARA Guidance on Presidential Records, and More: FRINFORMSUM 2/16/2017

February 16, 2017

trumpfoiScottish FOI Releases Shed Light on Local Law Enforcement Dealings with Trump Team  

Scottish police have released 49 documents in response to FOI requests on “its dealings with Trump International Golf Links Scotland (TIGLS) since 2009.” The Ferret reported that the FOI documents show concerns with private security hired by Trump and worry “that the Trump organisation failed to understand Scotland’s land reform law giving the public the right to roam across golf courses.” According to one email, the police note that the Trump organization’s “belief is that the land is private and that they will be able to restrict access unconditionally. This is obviously not the case and this is a potential area of conflict that will need to be managed diplomatically.”

NARA Releases Guidance on Presidential Records

The U.S. National Archives recently released its guidance on presidential records. The 16-page manual lays out which offices the Presidential Records Act applies to (including but not limited to the White House Office, the Office of the Vice President, the National Security Council, and the Office of Administration), what the requirements are, and reminds readers that, “The PRA states that the incumbent President must obtain the views in writing of the Archivist before disposing of any Presidential records.” NARA lays out a few key steps the administration should take to ensure the effective implementation of the PRA, including providing a briefing for staff, involving NARA at the “design stage of electronic records systems,” and establishing separate files for personal records. The guidance also contains a useful guide on how the PRA intersects with FOIA:

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We Could Lose 200 Million in Nuclear War and Still be OK, According to Air Force Official

The Air Force chief of staff told the Joint Chiefs at a September 1971 meeting that in a nuclear war the United States “could lose two hundred million people and still have more than we had at the time of the Civil War.” The quote – and very questionable math – comes from a recently declassified diary entry by JCS Chairman Thomas Moorer, recently published for the first time by the National Security Archive.

The notes are not only an eye-opening acknowledgement of certain senior military attitudes about nuclear survivability in the early 1970s, but are part of a critically important discovery – the existence among Admiral Moorer’s files of at least a partial record of JCS meetings that were thought to have been lost after the Chiefs in the late 1970s destroyed their entire collection of minutes going back to 1947.

Read the astounding documents for yourself here.

Take Our FOIA Search Survey

The National Security Archive and the Project on Government Oversight are distributing an unofficial survey for both FOIA processors and FOIA requesters on how agencies conduct searches. The goal of the survey will be to collect data on disparate agency search methods and software – and the more people who fill it out, the more useful the collected data will be.

Please take 10-15 minutes to fill out the survey and help us circulate it as widely as possible.

Senator Wyden Urges FBI to Reinstate FOIA Email

Sen. Ron Wyden (D-Oregon) recently wrote FBI FOIA head David Hardy and urged his agency to continue accepting FOIA requests submitted by email. The FBI recently and abruptly announced they will stop accepting FOIA requests via email by March 1, stating that requesters wanting to file electronic requests should use the beta version of its FOIA portal, which will “significantly reduce paper costs, mailing costs, and response times associated with FOIPA records requests.”

There are numerous problems with the FOIA portal, however. Wyden notes, among other things, that the portal places an arbitrary 3,000-character limit on requests, and the language is ambiguous about “whether the online FOIA system can be used to request internal FBI communications, such as memos, emails, guidance, or a wide range of other important internal agency records.” The portal also requires a requester to indicate whether or not they are in the U.S. – even though U.S. citizens and foreign nationals alike can use FOIA and submit requests regardless of their location. Wyden also asks Hardy to explain why the bureau decided to develop its own portal rather than opt into FOIAonline, and argues that the change creates more work for both FOIA requesters and FBI staff.

Backlog Numbers Not Improving

The Department of Health and Human Services (HHS) is the only cabinet level agency that was able to meet President Obama’s 2009 instruction to reduce FOIA backlogs by 10 percent per year. Out of the 15 federal departments surveyed by the National Security Archive, HHS reduced its backlog by 12.7 percent per year. The average for all federal departments was an 8.21 percent increase. The departments of Homeland Security, State, and Housing and Urban Development are some of the worst offenders, with an average increase of nearly 30 percent per year. Take an in-depth look at the numbers here.

perroots_high_resAble Archer 83 and Leonard Perroots

The National Security Archive’s FOIA project director and Able Archer 83 expert, Nate Jones, recently wrote a blog about the death of  Air Force lieutenant general and director of the Defense Intelligence Agency Leonard H. Perroots. Jones first became familiar with Perroots while reading the declassified President’s Foreign Intelligence Advisory Board report on Able Archer 83 and the 1983 War Scare. According to the report, which Jones won the release of in 2015, NATO nuclear exercise Able Archer 83 so closely represented a nuclear launch that the USSR began readying its nuclear forces for a possible first strike, and the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger.”

Jones notes that “Before Perroots retired from the DIA in 1989, he sent a final letter stating his disquiet over the lack of treatment given to the War Scare.” Unfortunately, Jones was informed by the DIA – on the same day Perroots’ death was reported – that the agency could not find its copy of Perroot’s letter about his role during Able Archer 83 and his view of the danger.

Want to learn more about Able Archer? Check out Jones’ discussion of the war scare and his new book on C-SPAN.

The New York Times’ obituary on Perroots can be found here.

When U.S. Intel had a Handle on Soviet Cyber Capabilities

A 1973 CIA study found that the Soviet RYAD computer program was “in serious trouble” and in need of allied and Western assistance. The report concluded that, even in the event the program became fully effective, it would probably “keep the Soviet computer industry technologically inferior to those in the United States, Western Europe, and Japan.” The document also includes some interesting tables on the technical specifications of selected RYAD computers, other Soviet computers, and USSR facilities for RYAD production.

This document is one of 11 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, February 15.

Sources and Methods

The Wilson Center has just launched a new blog, Sources and Methods, “that showcases fresh archival evidence and presents new insights into contemporary international history.” Christian Ostermann writes, “The short, accessible, and engaging content on Sources and Methods will include:

●     Archival highlights and commentaries on documents recently added to DigitalArchive.org,
●     History ‘explainers‘ and commentaries which bridge the past and present,
●     Field reports from archives and libraries,
●     Teasers for new books and other major publications in international history,
●     Debates among multiple parties on historically-relevant topics,
●     Information on new, unique, or under-utilized resources.”

TBT Pick – When GOP Presidents Led the Climate Change Debate

Today’s #tbt pick is a 2015 posting from our Environmental Diplomacy project on how Republican presidents Reagan and Bush (41) actively promoted measures to combat climate change. The post notes that “Both presidents’ secretaries of state, George P. Shultz and James A. Baker III, played key roles in blocking efforts by other Cabinet secretaries to frustrate implementation of more environmentally friendly policies. For example, memos for senior State Department officials in today’s posting note that ‘Global climate change is the most far reaching environmental issue of our time’ and that notwithstanding the need for continued research, ‘We simply cannot wait – the costs of inaction will be too high.’”

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Happy FOIA-ing!

FOIA Search Survey for Processors and Requesters – Please Fill out and Help Circulate

February 13, 2017

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The National Security Archive and the Project on Government Oversight are distributing a survey for both FOIA processors and FOIA requesters on how agencies conduct searches. The goal of the survey will be to collect data on disparate agency search methods and software – and the more people who fill it out, the more useful the collected data will be.

Please take 10 minutes to fill out the survey and help us circulate it as widely as possible. Please keep in mind that these answers will be made public, so don’t include any information you don’t want shared – like your name, email, etc.

The FOIA Federal Advisory Committee has a subcommittee devoted to studying searches, and a robust response to this survey will help ensure they have a representative view of issues surrounding FOIA searches from agency and requester community perspectives.

The survey will remain open until the end of February.

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General Leonard H. Perroots who Deescalated Risk of Nuclear War During Able Archer 83 Has Died; DIA Cannot Find His Letter Warning of Danger

February 10, 2017
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Lieutenant General Leonard H. Perroots

Air Force lieutenant general and director of the Defense Intelligence Agency Leonard H. Perroots has died.  I first learned of Perroots while reading the declassified President’s Foreign Intelligence Advisory Board’s report on Able Archer 83 and the 1983 War Scare.  According to this report, Able Archer 83 so closely represented a nuclear launch that the USSR began readying its nuclear forces for a possible first strike, and the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger.”

The PFIAB report (which the National Security Archive fought for 12 years to declassify) revealed that the danger of Able Archer 83 ebbed after Perroots, then a young air force officer, made the “fortuitous, if ill-informed [] decision” … “out of instinct, not informed guidance” to do “nothing in the face of evidence that parts of the Soviet armed forces were moving to an unusual level of alert” during the exercise.  By not responding to Soviet escalation in kind, Perroots essentially ended the two Super Powers’ nuclear anteing during the War Scare –and, as it turned out, the entire Cold War.

After Able Archer 83, Perroots rose through the ranks, eventually becoming the Director of the DIA.  Years later, he still had deep qualms about the lack of attention given to the risk of nuclear war present during Able Archer 83.  Central Intelligence Agency estimates on the War Scare initially downplayed the danger; and when the Agency analysts finally reversed course in 1988, acknowledging the potential danger during Able Archer 83, these findings were buried in a –still classified(!)– “annex of a tightly held assessment not authored for policymakers.”**

"...fortuitous if ill informed"

“…fortuitous, if ill-informed”

In addition to his role during Able Archer 83, Perroots must also be credited for the public’s eventual knowledge of this danger.  Before Perroots retired from the DIA in 1989, he sent a final letter stating his disquiet over the lack of treatment given to the War Scare.  He sent it to the director of the CIA William Webster and the President’s Foreign Intelligence Advisory Board.  Webster gave the letter little thought.  The PFIAB revved into action, interviewing more than 75 U.S. and British officials and reviewing hundreds of all-source intelligence documents.  The PFIAB’s 94-page report –spurred by Perroots and now largely available to the public— is the definitive account of Able Archer 83 and the 1983 War Scare.  The PFIAB agreed with Perroots’s concerns; it reported to the President that it was “deeply disturbed by the U.S. handling of the war scare, both at the time and since.”

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“…Often resulted in loss or destruction.”

While researching the War Scare, I had tried to speak with General Perroots, but was unfortunately not able to due to his health issues.  Adding even greater tragedy to his death was that on the same day he died, I received a letter from the DIA stating that it could not find its copy of Perroot’s letter about his role during Able Archer 83 and his view of the danger.  The DIA informed me that “Historical records were maintained by individual directorates which often resulted in the loss and destruction of records.”**  The death of Perroots coupled with the probable “loss or destruction” of his crucial account of Able Archer 83 has reminded this historian of the fleeting fragility of the past we try to document.


**The report is entitled “Special Program Intelligence Nuclear Missile Attack.”  The CIA has withheld the relevant portions.  The National Security Archive, of course, is appealing.

***There may yet be other copies of this record at other agencies which can be found, including at the US National Archive, possibly in the PFIAB’s working files, or at the Central Intelligence Agency.  Disturbingly, the CIA has claimed that Perroots’s letter must be classified in full and no portion of it can be released to the public without harming US National Security, despite the plethora of information about the War Scare now available to the public.

HHS Only Department to Meet Obama’s FOIA Backlog Reduction Order

February 9, 2017

By Swetha Kareti, @swethak13

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The Department of Health and Human Services (HHS) is the only cabinet level agency that was able to meet President Obama’s 2009 instruction to reduce FOIA backlogs by 10 percent per year. Out of the 15 federal departments surveyed, HHS reduced its backlog by 12.7 percent* per year. The average for all federal departments was an 8.21 percent increase. The departments of Homeland Security, State, and Housing and Urban Development are some of the worst offenders, with an average increase of nearly 30 percent per year.

In a 2009 memorandum, President Obama’s Office of Management and Budget called for the creation of an Open Government Directive, based on the “principles of transparency, participation and collaboration” to create a more accountable and open government. As part of this Directive, the administration instructed that “Each agency with a significant pending backlog of outstanding Freedom of Information requests shall take steps to reduce any such backlog by ten percent each year.” Holding agencies accountable for their FOIA backlogs, where in some instances requests have gone unanswered for years, was a giant step towards “creating and institutionalizing a culture of open government.”

A survey of the FOIA backlog numbers found in departments’ annual FOIA reports from 2008-2016 reveal that 14 out of the 15 federal departments were unable to meet this 10 percent reduction goal; in fact, 10 out of the 15 federal departments on average increased their backlogs. Measuring the effectiveness of the Open Government Directive has also been difficult, as several departments, such as the Department of Agriculture and Housing and Urban Development, inconsistently post their backlog data or post broken links to reports.

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Select non-cabinet level agencies were also included in the survey. These agencies included the CIA, the Environmental Protection Agency, the U.S. National Archives, the Defense Intelligence Agency, and the National Security Agency. The results from these agencies were also poor, with the possible exceptions of the Federal Communications Commission, NASA, and the Social Security Administration who made some gains in backlog reduction.

According to Melanie Pustay, director of the Justice Department’s Office of Information Policy, the ongoing backlog growth can be attributed to: an increase in the number of FOIA requests (a nearly 40 percent increase from 2009-2014); a government-wide reduction in FOIA staff; and budget cuts.

On the other hand, Michael Marquis, the FOIA director at HHS, may be able to provide a road-map for agencies struggling to reduce their backlogs. Marquis said the HHS was able to meet its backlog reduction goals thanks to an efficient tracking systems, improved customer communication and, most importantly, holding staff accountable. Marquis suggests that “Active management with a constant monitoring of key performance metrics” and “working with staff…to instill and create a sense of urgency” are required to improve FOIA processing. Aside from these improvements, Marquis insists that communication with FOIA requesters and providing them with insight into the process, or providing them with more efficient keywords or search terms to help craft targeted requests, is also an effective way to improve the FOIA experience.

It is important for agencies considering Marquis’ advice to be mindful of helpful vs. unhelpful communication with FOIA requesters. Helpful communication includes conference calls with customers updating them on the progress of their request, or putting them in contact with experts in the area to see which record sets will prove the most helpful. Unhelpful contact includes agencies simply sending a “Still Interested?” letter to requesters. In this instance, if the “Still Interested” letter is not responded to within a small and arbitrary time-frame, FOIA requests, even those that have gone unanswered for years, are closed.

A final consideration: agencies annual FOIA reports are self-assessments that contain data that can be useful, but that doesn’t always tell the entire story. The National Security Archive has long drawn attention to misleading statistics from agency annual FOIA reports that are routinely touted by OIP, namely statistics OIP calculates by counting nearly entirely redacted documents as successful partial releases, and excluding requests denied over fees, referrals, “no records” responses, and requests “improper for other reasons.” The backlog data in these self-assessments would likewise not capture agencies inappropriately closing out FOIA requests to artificially reduce their backlog numbers.

Percentages have been calculated using backlog data included in agencies’ or departments’ annual FOIA reports. The departments surveyed were: Agriculture; Commerce; Defense; Education; Energy; HHS; Homeland Security; HUD; Interior; Justice; Labor; State; Transportation; Treasury; and Veterans Affairs.

The agencies surveyed were: Board of Governors of the Federal Reserve System; Broadcasting Board of Governors; CIA; Consumer Financial Protection Bureau; Council of Inspectors General on Integrity and Efficiency; Environmental Protection Agency; Federal Communications Commission; Federal Trade Commission; General Services Administration; National Aeronautics and Space Administration; National Archives and Records Administration; Office of the Director of National Intelligence; Securities and Exchange Commission; Social Security Administration; DIA; NSA; CENTCOM; Army; Air Force; Navy; and the Marines. 

OGIS Regulations Need Your Comments by 2/27, House FOIA Bill Would Have Prevented FBI FOIA Email Cut, and More: FRIMFORMSUM 2/9/2017

February 9, 2017

Regulations Undercut OGIS’ Role as Go-To FOIA Experts

ogisregs

The Office of Government Information Services has published a proposed rule change to its regulations in the Federal Register. A part of its Dispute Resolution Services section – Dispute resolution process, Section 1291.14 section g – appears problematic. The section states:

OGIS issues a final response letter to the parties when the dispute resolution process concludes. This letter documents the outcome of the process and any resolution the parties reach. No party may rely on the letter in subsequent proceedings and its contents are confidential unless both parties agree in writing to allow OGIS to disclose it publicly.

Taking away the ability to rely on and publicize OGIS’ final response letters in future dealings with an agency, as precedent in possible future litigation, or even to inform the public on a blog – as OGIS itself has done – is a disservice to the FOIA community and to OGIS. A review of some of the final response letters made available by OGIS provide an important and telling (if quantitatively limited) view into problems FOIA requesters and processors encounter, like problems with agency FOIA websites, the exceptional problem of FOIA referrals, and arbitrary appeal deadlines.

Stating that no party may rely on these final response letters undercuts the premise that other agencies, agency lawyers, and judges should defer to the FOIA Ombuds office as the FOIA experts, and keeping the letters confidential would be an ironically un-transparent move for the ombuds office.

The comment period ends on February 27.

housebillFBI Shuts Down FOIA Email in Lieu of FOIA Portal, Restricting Requester Access and Raising Privacy Concerns

The FBI has abruptly announced they will stop accepting FOIA requests via email by March 1, stating that requesters wanting to file electronic requests should use the beta version of its FOIA portal, which will “significantly reduce paper costs, mailing costs, and response times associated with FOIPA records requests.”

The FBI says it will lift current restrictions on the portal – like requirements to provide a phone number with a request – by March 1. The Daily Dot reports, “Attorneys who specialize in litigating FOIA cases expressed concerns on Tuesday over the amount of personal information the FBI intended to collect from users of its online portal: phone numbers, physical addresses, and whether the records were being requested from outside the country.” MuckRock contributors Michael Best and JPat Brown go further into detail on the “arbitrary restrictions on the law” here.

The FBI isn’t alone in making it more difficult for the public to file FOIA request. The FCC, Customs and Border Protection, and possibly other agencies (let us know which!) are also no longer accepting FOIA via email.

One of the most frustrating aspects of the FBI’s move is the House’s 2016 FOIA Oversight and Implementation Act (H.R. 653), which unanimously passed the House, but was ultimately not adopted into law, required agencies “at a minimum” to accept FOIA requests via email. This commonsense provision embodied the spirit of the transparency law by allowing requesters to submit FOIA requests via their preferred platform – increasingly email – over mailing in physical requests, faxing them, or using oft-clunky FOIA portals. In short, the provision broadened access to FOIA, and the FBI’s move is a step away from increased access.

Each agency’s FOIA regulations state how that agency will accept FOIA requests. As agencies update their FOIA regulations – as mandated by the FOIA Improvement Act of 2016 – they should not take it as an opportunity to make it harder for requesters to submit their FOIAs. It’s wrong, and it’s not what the Senators and Representatives who championed improved FOIA legislation intended when the passed the bipartisan, bicameral improvements to the statute last year.

How Does Your Agency Perform A FOIA Search?

The National Security Archive will soon be distributing an unofficial survey for both FOIA processors and FOIA requesters on how agencies conduct searches. The goal of the survey will be to collect data on disparate agency search methods and software. The FOIA Federal Advisory Committee has a subcommittee devoted to studying searches.

ProPublica FOIA Shows Trump Still Closely Tied to Business

A Freedom of Information Act request from ProPublica won the release of documents showing that Donald Trump remains “closely tied” to his businesses, and an analysis by legal experts contends that Trump has not done enough to avoid conflict of interest. Specifically, the documents outline the structure of the Donald J. Trump Revocable Trust, which remains under Trump’s social security number and is holding assets for his “exclusive benefit.” The trust holds, among other of Trump’s assets, the “Old Post Office lease, golf courses and residential properties including a house in Beverly Hills, Calif.”

NRO No Longer Releasing Previously Unclassified Budget Data

The National Reconnaissance Office will no longer release unclassified budget information that it has made available since 2006. Steve Aftergood reports that the NRO “has modified its classification policies in favor of heightened secrecy, withholding budget records that were previously considered releasable and redesignating certain unclassified budget information as classified.” The NRO cites E.O. 13526 Section 1.7(e) for the change, although Aftergood argues “the fact that various unclassified items reveal additional information in the aggregate does not mean that those items meet the standard for classification.” The agency also invoked 10 USC 424, arguing that it “cannot be compelled to disclose ‘any function’ at all.”

sac-excerptDeclassified Strategic Air Command

A declassified Strategic Air Command History from 1968, recently cited in former SAC commander-in-chief Lee Butler’s memoirs and highlighted in a posting by the National Security Archive’s Nuclear Vault director William Burr, sheds light on the role of anti-ballistic missile defenses in national policies and international relations. Burr writes that, “According to the SAC history, in the late 1960s, SAC targeted over 100 Minuteman missiles, over 10 percent of the ICBM forces, on Soviet ABM sites lest Soviets disrupt a U.S. nuclear strike in the event of the outbreak of general war.” For a deeper read of the fascinating document, go here.

Tell MuckRock if Online Databases Go Missing

MuckRock has launched a survey for members of the public to alert the transparency organization if a government database has been removed from an agency website. The survey was launched after news broke that the Department of Agriculture abruptly took down its animal research database – containing “reports of inspections by USDA’s Animal and Plant Health Inspection Service.” MuckRock will use the survey to build a repository of “endangered data” and will file a FOIA request for the missing government data and try to make it public again.

MyBitcoin Hack Not Thoroughly Investigated by FBI?

New FBI documents released in response to a FOIA request filed by Jason Leopold regarding the bureau’s handling of the 2011 hacking of the popular e-wallet site MyBitcoin beg the question of whether or not the bureau understood the cybercurrency is real money. In 2011 MyBitcoin was hacked to the tune of $1 million in Bitcoins; the site urged users to report their losses and the company would reimburse “49 percent of their last-known stored value,” prompting some to speculate the hack was an inside-job. Others, however, urged MyBitcoin users to complain directly to the FBI. The documents obtained by Leopold, imply “that the FBI didn’t understand that the possible theft of Bitcoins from MyBitcoin was equivalent to a major robbery.” Leopold posits that the FBI’s view of “Bitcoins users as criminals” because Bitcoin can be “used to fund illicit activities” may have played a role in the inaction.

CIA Covert Aid to Italy

CIA covert aid to Italy continued well after the agency’s involvement in the 1948 elections – into the early 1960s – averaging around $5 million a year, according to a draft Defense Department historical study published for the first time by the National Security Archive. The study, declassified in 2016, focuses on the role of Clare Boothe Luce as ambassador to Italy, 1953-1957. The author of the study also concludes that the Eisenhower administration, faced with the possibility of civil war in Italy or the Communist Party coming to power legally, was “willing to intervene militarily only if the Communists seized power forcibly and then only in concert with other European nations.”

Social Security, Passport, and Driver’s License Numbers All Unprotected in GSA Google Cloud 

A 2015 General Services Administration Inspector General report found that personally identifiable information (PII) was unprotected in the GSA’s Google Cloud. The IG noted that within the organization’s Cloud computing – an environment that contained nearly 4 million documents at the time – PII, including social security numbers, passport and driver’s license numbers, home addresses, and medical needs, were accessible to employees and contractors without a valid need to know the information. The report indicates a number of steps GSA should take to address the privacy concerns. This document is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, February 8.

TBT Pick – State Department Intelligence and Research Predicted 1973 Arab-Israeli War

Taken in November 1973, this picture of the U.S. Intelligence Board, then chaired by Director of Central Intelligence William E. Colby, shows representatives of the organizations which collected and reviewed intelligence before and during the October 1973 War. INR Director, Ray Cline, who signed the memorandum predicting war by the autumn, sits fourth from left clockwise . (Photo, courtesy CIA History Staff)

Taken in November 1973, this picture of the U.S. Intelligence Board, then chaired by Director of Central Intelligence William E. Colby, shows representatives of the organizations which collected and reviewed intelligence before and during the October 1973 War. INR Director, Ray Cline, who signed the memorandum predicting war by the autumn, sits fourth from left clockwise . (Photo, courtesy CIA History Staff)

This week’s #tbt pick is a 2013 posting spotlighting a previously secret State Department intelligence memorandum that predicted, five months in advance, the 1973 Arab-Israeli war. Published for the first time by the National Security Archive, the INR memo from May 1973 warned Acting Secretary of State Kenneth Rush that there was a “better than even bet” that war between Egypt and Israel would occur “by autumn.” According to the INR analysis, Egyptian President Anwar Sadat would initiate a war with Israel not for specific military objectives but to spur “big power” diplomatic intervention in the Arab-Israeli conflict so that Egypt could regain the Sinai Peninsula lost in the 1967 War. On 6 October 1973 war broke out in the region.

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Declassified SAC History Indicates Massive Nuclear Strikes Planned Against Soviet Anti-Missile Sites During Cold War

February 7, 2017

sac-excerpt

Missile Defenses Then and Now

A declassified Strategic Air Command History from 1968, recently cited in former SAC commander-in-chief Lee Butler’s memoirs, sheds light on the role of anti-ballistic missile defenses in national policies and international relations. According to the SAC history, in the late 1960s, SAC targeted over 100 Minuteman missiles, over 10 percent of the ICBM forces, on Soviet ABM sites lest Soviets disrupt a U.S. nuclear strike in the event of the outbreak of general war. The assignment of large numbers of nuclear warheads against Soviet ABM sites would characterize Cold War U.S. nuclear planning.

Missile defense systems were divisive issues during the Cold War and have unsettled U.S.-Russian relations during the years that followed. Besides Russia’s invasion of the Ukraine and the tensions over NATO enlargement, one reason why arms control talks with Russia and China have foundered is that both countries object to U.S. ballistic missile defense (BMD) programs. Moscow and Beijing see BMD as a threat that weakens their nuclear strike capabilities. For example, the Russians refuse to participate in follow-on New START talks unless missile defenses are an element of the negotiation, among other considerations.[i] Voicing historic Russian anxieties about missile defenses, President Putin has argued that U.S. programs undermine the strategic balance, the threat of mutual destruction that “ensured and guaranteed peace on the planet, sparing us from major military conflict over the last 70 years.” When the Bush administration unilaterally withdrew from the ABM Treaty in 2002, Putin saw that as “major blow” to the strategic balance leaving him no recourse except to “improv[e] Russia’s offensive missiles in order to improve the balance.” [ii]

A roughly parallel situation existed in the late 1960s, but in reverse, when the U.S. military saw the Soviet Union’s developing anti-ballistic missile (ABM) system as a potential threat to U.S. deterrence. The Soviet Union had been moving ahead in deploying a network of radars and nuclear-armed interceptors for destroying incoming missiles from different directions. From the Soviet perspective of those days, missile defense was “moral” while nuclear offense was “immoral.” To offset a perceived Soviet advantage the U.S. government was trying to catch up, developing what became known successively, as Nike-X, Sentinel, and then Safeguard ABM systems. The emerging ABM competition could exacerbate the ICBM race that had begun in the late 1950s. An interest in avoiding that provided powerful impetus to Moscow for the strategic arms limitation talks that began in late 1969.

screen-shot-2017-02-06-at-11-38-51-amNuclear Targeting

Whatever arms control diplomacy accomplished, the U.S. Air Force saw the Soviet ABM system as a threat to be destroyed if war broke out. U.S. nuclear plans during the Cold War posited massive attacks on ABM systems as opening moves in general nuclear war. This remained true after the ABM Treaty (1972) because it left the Soviets the option, which they implemented, of defending Moscow, the “National Command Authority,” with a 100-interceptor anti-missile defense. In his recently published memoir, General Lee Butler recounted a briefing during 1991 on targeting plans against Soviet ABM complexes that he had received after he had become Commander-in-Chief of the Strategic Air Command and Director of the Joint Strategic Target Planning Staff:

I could hardly believe what I was hearing. Scores of thermonuclear war­heads raining down on the periphery of Moscow, creating a holocaust of destruction and radioactive debris whose effects were beyond calculation, locally or globally. Had I been more familiar with the voluminous Strategic Air Command histories, specifically page 300 of the now unclassified/FOIA edition covering January-­June, 1968, I would not have been caught so off­guard – it made quite clear the scope of attack planning going back to the dawn of the Moscow ABM system.

When General Butler received this briefing, 69 nuclear warheads alone would have rained down on the new Puskhino (Don 2N) ABM battle management radar, over and above the numbers of warheads slated against other missile defenses, according to former SAC officer and Princeton University research scholar Bruce Blair. The declassified SAC history (see page 300 of excerpt, transcript attached owing to poor quality of original) that General Butler cites shows how massive the earlier strike plans were (besides providing valuable background on the launch-on-warning posture). As of early 1968, more than a 100 Minuteman ICBMs and an unspecified number of Polaris missiles would have targeted the ABM system. Some of them could have hit the Dnestr “Hen House” early warning radars, deployed on the Soviet Union’s periphery, for detecting incoming missiles. Others would have targeted the “Tallin” air defense system deploying SA-5 surface-to-air missiles located in Estonia. Most of the Minutemen may have targeted the ABM radars and interceptors surrounding Moscow, the Dunay “Dog House” and Try Add, which tracked incoming missiles and guided the “Galosh” ABM interceptors to their targets.[iii] As Butler observed, the impact of the detonations would have been “a holocaust of destruction and radioactive debris.”

screen-shot-2017-02-06-at-11-38-29-amThat SAC was devoting 10 percent of its ICBM force to destroying Soviet ABMs indicated the high priority that it gave to that target system. Yet, U.S. strategic planners were well aware that counter-measures were available that would make it possible for U.S. Minutemen warheads to evade Soviet ABMs and strike military or urban-industrial target systems. Spurgeon Keeny, then on the National Security Council staff, wrote to national security adviser Walt Rostow in May 1966 that the Moscow ABM system “would not be particularly effective in the defense of Moscow and would have only a small perturbation on our over-all war plans.” According to Keeny, a “very small number of missiles” using chaff and decoys “could probably overwhelm the system.” Whatever U.S. planners thought of Soviet ABM capabilities at the time, it eventually became known that the Soviet ABM system of the late 1960s was “hopelessly inadequate” because it was geared to defending against only six or seven incoming ICBMs.[iv] At the same time that SAC was making its targeting plans against the Soviet ABM, Hans Bethe and Richard Garwin published a major article on “Anti-Ballistic Missile Systems” in the Scientific American (March 1968)  that explained in “general terms, using nonsecret information, the techniques an enemy could employ at no great cost to reduce the effectiveness of an ABM system.” The techniques included decoys, chaff and jammers to confuse the adversary’s radar and radar blackouts caused by a nuclear explosion. As well-known as those techniques were apparently U.S. war planners did not have enough confidence in them to re-assign the 100 Minutemen to another mission.

Missile Defenses: From Bush II to Obama

In 2007, the Federation of American Scientists’ Hans M. Kristensen first brought this SAC history to light in a fascinating Web post that raised important questions about the role of missile defenses in nuclear strategy and the Bush administration’s plans for a missile defense system in Eastern Europe.[v] While President Obama continued the ballistic missile defense system based in Ft. Greely in Alaska, he canceled the Eastern European program leaving in its place as a part of his the Phased Adaptive Approach, a land-based version of the Aegis shipborne BMD system, ostensibly designed to protect U.S. forces deployed in Western Europe from a future Iranian missile threat. So far that has involved Aegis Ashore deployments in Romania and ground breaking for a similar installation in Poland. The Navy has plans to deploy hundreds of Aegis/SM-3 interceptors on ships in the coming years:

On the East Asian front, the United States and South Korea have agreed on plans to base an Army ballistic missile defense system, terminal high altitude area defense (THAAD), although it faces Korean domestic opposition. The Japanese Government has also expressed interest in deploying the system. An element in the Obama administration’s support for THAAD in South Korea was its possible utility to strengthening the Nuclear Nonproliferation Treaty system by discouraging local interest in acquiring indigenous nuclear deterrents against the North.

How THAAD and Aegis fare in the new administration will probably depend on the balance between Secretary of Defense Mattis’s priorities, strong Republican support for expanding missile defenses, and the new President’s interest in accommodation with Russia. If missile defenses go forward, it is worth keeping in mind that the same types of countermeasures that have available since the 1960s are likely to render them ineffective. For example, with respect to possible THAAD deployments in South Korea, Jeffrey Lewis has argued that North Korea is developing its own capabilities against them. “There are many countermeasures available to North Korea to defeat missile defenses,” such as the solid-fueled KN-11 missile, which could be used for submarine-launched ballistic missiles that could defeat THAAD if launched in salvo and behind the radars. [vi] That would be the most costly one; exoatmospheric decoys would be far less expensive.

The Chinese and the Russian governments have respectively criticized THAAD in South Korea and Aegis Ashore in Romania and Poland. The U.S. has denied that these systems have any mission other than defense against Iran and North Korea, but Beijing has declared that the THAAD radar is a threat to its security interests, just as Putin has criticized Aegis deployments in Eastern Europe.[vii] In his recent speech Putin mentioned countermeasures: “ weapons that are designed to penetrate ballistic missile defense systems,” and Chinese military experts recognize their relevance to thwarting BMD.[viii] It is likely that military planners in Beijing and Moscow put U.S. missile defenses on their target lists just as SAC planners and their successors targeted Soviet and Russian ABMs. As Hans Kristensen put it, “all the major nuclear weapon states insist that they must hedge against an uncertain future and continue to adjust their strike plans against potential adversaries that have weapons of mass destruction.” As long as such conditions obtain, the U.S.’s BMD systems may remain an element in the nuclear disarmament stalemate.

* Thanks to Frank von Hippel and Ted Postol for inspiring this posting and thanks to Jordan Pyers for the transcription.

[i] Heather Williams, “Russia Still Needs Arms Control,” Arms Control Today, January/February 2016, https://www.armscontrol.org/ACT/2016_0102/Features/Russia-Still-Needs-Arms-Control.

[ii] “Meeting with Heads of International News Agencies, June 17 2016, St Petersburg,” http://en.special.kremlin.ru/events/president/transcripts/52183.

[iii] For details on Soviet ABM defenses, see Stephen Zaloga, The Kremlin’s Nuclear Sword (Washington, D.C.: Smithsonian Institution, 2002), 123, 125-126, and 163-169.

[iv] Ibid., 126.

[v] Hans Kristensen followed up this blog entry with Matthew G. McKinzie and Robert S. Norris in “The Protection Paradox,” The Bulletin of the Atomic Scientists 60 (2004).

[vi] Jeffrey Lewis, “KN-11 and Thaad,” Armscontrolwonk.com,  http://www.armscontrolwonk.com/archive/1201857/kn-11-and-thaad/.

[vii] Kingston Reif and Kelsey Davenport, “South Korea to Deploy U.S. Defense System,” Arms Control Today, September 2016 https://www.armscontrol.org/ACT/2016_09/News/South-Korea-to-Deploy-US-Defense-System; Kingston Reif, “Romania Missile Defense Site Activated,” Arms Control Today, June 2016, https://www.armscontrol.org/ACT/2016_06/News/Romania-Missile-Defense-Site-Activated.

[viii] Work on countermeasures began in the former Soviet Union during the 1950s, see Zaloga, The Kremlin’s Nuclear Sword, at 123. For perspective on countermeasures and the missile defense debate generally, see Michael Krepon, “Ritualized Anxieties over BMD,” Armscontrolwonk.com, http://www.armscontrolwonk.com/archive/403783/ritualized-anxieties-over-bmd.