Baltimore Police Use of StingRays Draws Ire, US Debated Secretly Storing Nukes in Iceland, and More: FRINFORMSUM 8/18/2016
Civil liberties groups are asking the Federal Communications Commission (FCC) to investigate the Baltimore Police Department’s use of cellphone tracking devices, commonly known as StingRays after the name of one popular model. The complaint comes “on the heels of a scathing Justice Department investigation that found that the police department routinely violated the civil rights of the city’s black residents,” and argues the use of StingRays continues in that vein, disproportionately targeting black residents. Steven Renderos from the Center for Media Justice notes that “The Baltimore Police Department uses cellphone interceptors at an astronomically higher rate than other law enforcement agencies, and mostly does so in black neighborhoods.”
The civil liberties groups argue that the Communications Act requires the Baltimore Police to obtain a license to operate the devices; an anonymous FCC official, on the other hand, said local law enforcement do not need a license, but could “not give a clear explanation of why a license is not needed.”
Last September the Justice Department required all federal law enforcement to obtain a warrant prior to using StingRay devices, but the directive does not apply to state and local law enforcement. In March of this year, however, “the Maryland Court of Special Appeals held that the Baltimore police must obtain a probable-cause warrant to use a cell site simulator and disclose the intended use to a judge.”A recently declassified letter from a U.S. ambassador to Iceland in August 1960, published this week by the National Security Archive, shows that U.S. government officials debated whether to deploy nuclear weapons in Iceland – and whether to tell Iceland or not. The author of the recently released letter, U.S. Ambassador Tyler Thompson, argued against deployment, recognizing that Iceland’s ties to NATO and the Western security system were fragile, and that if Reykjavik learned about a secret deployment, it could leave NATO. Furthermore, a “dramatic row” could “be expected to have an unfortunate effect on our friends and allies, to affect adversely our interests as far as neutrals are concerned, and to provide a propaganda field day for our enemies.” The U.S. ultimately rejected the idea, but the revelation that internal discussions took place adds to public knowledge of the broader issue of U.S. nuclear deployments overseas (not to mention nuclear duplicity) during the Cold War.
Archival documents discovered by an Icelandic historian and published by the Archive also show that the United States had plans for at least one nuclear weapons storage site in Iceland if World War III were to break out.
A joint panel of Republicans on the House Armed Services, Intelligence and Appropriations committees have found that CENTCOM “regularly produced intelligence that distorted the results of the campaign against the Islamic State, suggesting that command leaders shaped analysis in a way that resulted in a more upbeat depiction of the war.” House Republicans began looking into the matter last summer after a civilian intelligence analyst complained that intelligence was being distorted. The Pentagon Inspector General is currently conducting a separate investigation into the matter.
Steve Aftergood reported this week on several noteworthy items, including highlighting the Defense Department’s publication of a new three volume manual that examines the “conditions under which U.S. military capabilities can be brought to bear in domestic civilian affairs.” Aftergood notes that “Except in cases of imminent loss of life or similar extremes, requests for military assistance are supposed to undergo a threshold review to establish their legality.”
Aftergood also posted the Defense Department’s Chemical and Biological Defense Program’s (CBPD) 2016 Annual Report to Congress, which he obtained through FOIA. Among the report’s highlights is the role CBDP funding provided in the Food and Drug Administration’s 2015 approval of a drug “to be used as a countermeasure against Yersinia pestis, the biological agent that causes bubonic plague.” The scope of CBDP’s research is expected to shrink, however, due to budget cuts.
Bowe Bergdahl’s lawyers have filed a complaint in his desertion case, saying that “the four-star general overseeing the soldier’s court-martial should be disqualified after he burned more than 100 letters related to the case.” The lawyers argue that on August 8 Gen. Robert B. Abrams told Bergdahl’s lawyers during an interview that he destroyed the documents, which “spanned the full spectrum of opinion” on Bergdah’s desertion. In their filing Bergdah’s lawyers say the damage is “irreparable” and insist that “The Army must find some other commander to ‘own and operate’ the military justice for this case.” A spokesperson for Forces Command gave no explanation why Gen. Abrams destroyed the documents and did not acknowledge the potential impact on the case, only saying that the defense’s filing was one of an “ongoing series of legal motions.”
Last week the Archive posted a selection of eight key White House and State Department records from the Obama administration’s release of previously secret documents on Argentina during the period of its “dirty war.” President Barack Obama promised that several additional releases would be made in the coming months. Among the records are memoranda of conversation between Carter and Argentine junta leader General Jorge Videla, as well as materials revealing Carter’s personal intervention in obtaining the release of renowned newspaper publisher Jacobo Timerman. The documents also include new evidence about the consternation of U.S. officials at former Secretary of State Henry Kissinger’s efforts to challenge Carter’s human rights policy which, in essence, sought to repudiate Kissinger’s previous embrace of military dictatorships in Latin America and elsewhere.
This week’s #tbt pick is chosen with the 25th anniversary of the August Coup – the attempt to overthrow Soviet President Mikhail Gorbachev – in mind. This week’s #tbt pick is a 2015 posting on Perestroika in the Soviet Union, and includes a transcript of the First Extraordinary Session of the Supreme Soviet of the Russian Federation, August 21, 1991, which “brings the reader into the halls of the legendary Russian White House, to the extraordinary session of the Supreme Soviet of the Russian Federation at the exact moment of the triumph of the democratic resistance to the August coup. The discussions show the resoluteness of the democratic opposition and the decisive role of the Soviet army, of which key units ultimately disobeyed orders and sided with the democratic forces.”
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Declassified Dirty War Documents, PDBs from Nixon and Ford Administrations to be Released, and More: FRINFORMSUM 8/11/2016
The Obama Administration this week released what it called “the first tranche” of declassified documents on America’s role in Argentina’s Dirty War, fulfilling promises made by President Obama when he visited Buenos Aires earlier this year during the 40th anniversary of the military coup.
The release marks the first installment of thousands of CIA, NSC, Defense Department and FBI documents that are currently being gathered and reviewed as part of President Obama’s executive declassification project on Argentina. Another release of records is expected before Obama leaves office, with additional “tranches” of the most sensitive records to be released under the next administration. (During the last year of the Clinton administration in 2000, the State Department initiated a special declassification on Argentina which resulted in the release of 4,200 State Department records during the first year of the George W. Bush administration.)
The National Security Archive, which has worked on previous executive declassification projects, hailed the publication of records related to Argentina. Carlos Osorio, who directs the Archive’s Southern Cone project, told the Washington Post that “This release marks an important step forward in the quest for truth, justice and historical accountability.” Osorio also told the Buenos Aires Herald that, with this publication, “the United States government is proactively contributing to the reconstruction of memory and history.” The Obama administration, according to senior analyst Peter Kornbluh, “deserves credit for this act of declassified diplomacy and for making the declassification of secret government records a creative component of U.S. policy to advance human rights.”
This week the CIA announced that it will be releasing the President’s Daily Briefs from the Nixon and Ford administrations. An agency press release states, “Previously classified President’s Daily Briefings (PDB) from the Richard Nixon and Gerald Ford Administrations produced by the CIA are scheduled to be released on Wednesday, August 24 at the Richard Nixon Presidential Library and Museum in Yorba Linda, California.” PDBs are Top Secret documents containing the most current and significant intelligence information that the CIA believes that the President needs to know, and are records that CIA Director George Tenet once claimed could never be released for publication “no matter how old or historically significant it may be,” and that White House Press Secretary Ari Fleischer described as “the most highly sensitized classified document in the government.” The documents will be posted online here.
A Dallas woman, Malia Litman, filed 89 FOIA requests to learn more about the Secret Service after news of sexual scandals at the agency broke several years ago. (The Secret Service has been plagued by a variety of scandals recently, including posting dozens of officers to sensitive assignments without security clearances, members of the Secret Service’s elite Prowler unit being ordered by the agency director to abandon their post to watch his personal friend for two months in 2011, and leaking embarrassing information about Rep. Jason Chaffetz’s rejection from a job with the Service after he rebuked the agency for its repeated failures.) Litman’s FOIAs uncovered a number of revelations, including “A culture of ‘wheels up; rings off’” and multiple incidents of agents engaging with prostitutes. Most notable about this case, however, is not the indiscretions uncovered, but U.S. District Judge Sam R. Cummings’ ruling that Litman was not entitled to attorney’s fees because she did not show “that her pursuit of records involves a legitimate public benefit.” Cummings cited as precedent another FOIA case that ruled “that generally increasing public knowledge about the government is not a legitimate public benefit.”
The National Reconnaissance Office recently redacted information from a FOIA request that was previously released four years ago. In response to a FOIA request filed by Gizmodo’s Matt Novak with the NRO for “a bibliography of history papers,” the agency invoked the national security exemption, the personal privacy exemption, and the exemption pertaining to other statutes to fully redact the title of one 1998 paper – even though it had released the full title to Government Attic in 2012 – a paper that Government Attic posted online. The title? “Synchronous SIGINT Satellite Operations, A Continuing History.” Novak concludes that “the scariest hypothetical isn’t that they’re trying to retroactively hide information. It’s that they’re probably winging it.”
Recently released emails show that Cheryl Mills, Hillary Clinton’s State Department chief of staff, knew in December 2012 that Citizens for Responsibility and Ethics in Washington filed a FOIA request seeking all email accounts used by Secretary Clinton. The State Department gave a “no records” response to the request. Politico’s Josh Gerstein notes that “The incident is noteworthy because had the agency’s response been more thorough, Clinton’s exclusive use of a private email server as secretary of state could have been exposed years before it became public in March 2015.”
The D.C. Circuit ruled that the FBI must release more documents to Jeffrey Labow, a man the bureau “identified as an anarchist extremist” in the course of its investigation into the 2008 vandalism of Washington, D.C.’s Four Seasons hotel during anarchist’s protest of the World Bank and International Monetary Fund. Labow filed a FOIA request from the Bureau for records on himself and the Bureau responded that it had no records (this “no records” response is unsurprising considering the Bureaus’ FOIA search is designed to fail – more on that here). Labow sued, and the Bureau uncovered hundreds of pages of documents, many of which it withheld incorrectly under the FOIA’s exemption 3 (information protected by other statutes). Exemption 3 was primarily used in this case to “withhold information associated with a pen register order, a device for monitoring the phone numbers dialed on a telephone line,” but the Court ruled that “Exemption 3 of FOIA, as regards the Pen Register Act, primarily authorizes the government to withhold a responsive pen register order itself, not all information that may be contained in or associated with a pen register order.”
D.C. District Court Judge James E. Boasberg recently criticized the FBI’s national security letters (our take on the NSL’s here). Specifically, Boasberg faulted “several large loopholes” in the “new rules regarding how long the government can demand secrecy from companies when it requests data on national security cases.” Some of the loopholes Boasberg cited include various circumstances that would allow the NSLs to remain open indefinitely and the lack of review for “large swaths” of issued NSLs. Boasberg is the first judge to publicly assess the new gag-order rules mandated by the USA Freedom Act of 2015.
Earlier this month the FBI placed 18 hours of video surveillance taken during the Freddie Gray protests online in its FOIA vault. The action preceded a blistering Justice Department report faulting the Baltimore police department, which the DOJ says “regularly discriminated against black residents in poorer communities.” Kudos to the FBI not only for releasing this timely information, but for making it available to all on its FOIA site.
The Office of the Director of National Intelligence recently posted an October 2009 report on “North Korea Centrifuge Capabilities” to its FOIA reading room. The Archive’s Cyber Vault director, Dr. Jeffrey Richelson, said the release of this heavily-redacted 124-page report was notable for the or the extent of DOE reclassification and the use of FOIA’s Exemption 3 to redact U/FOUO material.
This week’s #tbt pick is a 2009 posting on Operation Sofia: Documenting Genocide in Guatemala. The posting details how internal records presented as evidence to the Spanish National Court showed that “the Guatemalan army, under the direction of military ruler Efraín Ríos Montt, carried out a deliberate counterinsurgency campaign in the summer of 1982 aimed at massacring thousands of indigenous peasants.” The National Security Archive’s Kate Doyle presented the documentation as evidence in the international genocide case; Ríos Montt was convicted in 2013 of crimes against humanity and sentenced to 80 years in prison.
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A recent FOIA ruling from the D.C. Circuit found that agencies can’t withhold non-responsive information from a record if there is no basis for exempting the information. Specifically, the panel found “no statutory basis for redacting ostensibly non-responsive information from a record deemed responsive.” The ruling, which was made in a case seeking information about immigration judge complaints, further noted that “Under the statutory framework, once the government concludes that a particular record is responsive to a disclosure request, the sole basis on which it may withhold particular information within that record is if the information falls within one of the statutory exemptions from FOIA’s disclosure mandate. But the government in this case… redacted discrete information within the records on the basis of non-responsiveness even if no statutory exemption shielded the information from disclosure. That approach cannot be squared with the statutory scheme.”
In a separate case, the D.C. Circuit found the Justice Department’s arguments – put forth by Civil Division attorney Daniel Tenny – that documents maintained by agency heads on a private server are not under agency control and therefore not subject to FOIA to be “inconsistent with the purpose of FOIA.” The Court went on to say, “If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served.” This case in particular serves as the most recent example of the Justice Department defending bad agency positions at the expense of the FOIA and FOIA requesters.
A new Freedom of Information Act release from the Army sheds some light on Dallas police shooter Micah Xavier Johnson, who was accused of sexual harassment while serving in Afghanistan and honorably discharged after “panties stolen from a female soldier” were found in his barracks. The report found that Johnson’s actions did not “constitute any of the categories or types of sexual harassment under AR 600-20.” The final recommendations made in the Army report are unfortunately withheld under the B)(5) “withhold it because you want to” exemption, despite the fact there is considerable public interest in the conclusions of the Army investigation into Johnson.
A FOIA appeal for records concerning Donald Trump’s re-development of the taxpayer-owned Old Post Office building in downtown D.C. into a luxury hotel shows how Trump “leveraged a mere $2.4 million equity investment to gain control of the $200 million project.” The documents also show how Trump funneled money to his children “through separate companies bearing each of the children’s names, and the document indicates that those companies did not invest money. Nevertheless, their stakes could earn the children a big chunk of any profits generated from the taxpayer-owned site.” As BuzzFeed notes, despite the fact the building is owned by the public, many of the key documents in the deal were heavily redacted, forcing BuzzFeed to file an appeal. The startling before-and-after images of appealed documents is a good reminder of the why you should always appeal a FOIA denial.
Steven Aftergood recently broke down some of the most important findings in the most recent annual report from the Information Security Oversight Office (ISOO). The Good news: the number of new secrets – “original classification decisions” – are the second lowest ever, albeit up from last year; the number of individuals authorized to create new national security secrets is at an all-time low; and the number of “internal classification challenges” has reached an all-time high.
The Bad news: at more than $17 billion, the cost of the national secrecy system is up 8 percent from last year; “the number of [mandatory declassification review] requests that have gone unresolved for more than a year increased significantly to more than 14,000;” and the “declassify in ten years or less” instruction is down 15 percent.
Aftergood concludes that overall the trend in national security classification policy changes are positive, but that “The White House seems barely cognizant of those changes, and did not mention them at all in a recent description of the Obama Administration’s efforts ‘to drive openness and transparency in government.’”
Are you a reporter or journalist who uses the Freedom of Information Act? If so, take a few minutes to fill out the Reporters Committee for Freedom of the Press survey on a “Release to One, Release to All” FOIA policy. The anonymous survey is 11 questions and closes August 16. The National Security Archive’s position is that “the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole.” The Archive has long been open to compromise, however, allowing for the possibility of a “release to one, release to all” method which provides for the online posting of FOIA-processed records with a short, built-in delay. The Department of State, probably the government’s best online reading room, posts its FOIA releases quarterly.
This week’s #tbt pick is chosen with the upcoming 46th anniversary of the kidnapping and murder of Dan Mitrione in Uruguay in mind. Mitrione was the Director of the U.S. AID Office of Public Safety in Uruguay, an organization that helped Uruguayan police “enhance” their counterinsurgency techniques and torture of prisoners. Mitrione was kidnapped by the leftist Movimiento Nacional de Liberación, held for ten days, and executed. Documents posted by the National Security Archive for the first time in 2010 show that the U.S., in an effort to spur Mitrione’s release, recommended a “threat to kill [detained insurgent] Sendic and other key [leftist insurgent] MLN prisoners if Mitrione is killed.”
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Effectively Utilizing Available Tech Would Go a Long Way Preventing “Aneurysm-Inducing” FOIA Frustrations: FRINFORMSUM 7/28/16
Maine Gov. Paul LePage, who vowed in 2010 that his administration would be the “most transparent” in the state’s history, is fighting to keep his work-related, handwritten notes beyond the reach of Maine’s public records law. The governor’s use of handwritten notes is well-known, and last year the Portland Press Herald/Maine Sunday Telegram requested copies of all of them under Maine’s Freedom of Access Act (FOAA) – and only received three. Defending the paltry disclosure, LePage’s staff argues that – in direct opposition to what Maine’s FOAA actually says – “the notes are personal and not public documents that must be saved and accessible to the public.” Maine’s FOAA, however, defines a public record as “any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State . . .” LePage also recently issued an anti-texting policy “after it was made public that an employee at the Maine Center for Disease Control and Prevention said she had been ordered by her superiors and LePage appointees to use text messaging as a way to circumvent FOAA requests.”
Ryan Shapiro is suing the Justice Department over the FBI’s intentionally cumbersome FOIA search software, which is designed to fail to find responsive documents. Wired’s Davey Alba has a good summary of how the FBI’s system does this, explaining how Shapiro – by piecing together testimony from federal agents – found that the “FBI’s main records database, the Central Records System, isn’t itself searchable. Agents have to conduct the search on a mirror called the Automated Case Support system via an application called Universal Index to search a card catalog-like database. But this amounts to hunting for relevant documents by relying on the topic of a book alone when the person making the FOIA request is, to extend the library metaphor, looking for a specific title or information contained on a specific page.” The Bureau utilizes the outdated software, which is so old “that it doesn’t even have a graphical user interface,” even though it has another $425 million system, Sentinel, that would allow full-text search.
FOIA shops – and government websites more broadly – are often criticized for employing outdated software – at the taxpayer’s expense – that is behind software routinely used by private sector websites. To help bring the government into the 21st century, the Obama administration launched the Digital Service team – an initiative “that pairs the country’s top technology talent with the best public servants, to improve the usefulness and reliability of the country’s most important digital services.” The service currently has charters with seven different agencies and overwhelmingly positive agency approval ratings.
This begs the question of why the same cannot be done with FOIA. Hopes were high in 2014 when 18f, a highly regarded group of technology innovators at the General Services Administration, hinted that it was being tasked to help build a government-wide FOIA portal. The project, however, did not pan out. It’s unclear (or at least unconfirmed) why, but as 18f notes, a FOIA Task Force comprised of representatives from, among other places, the Department of Justice, oversaw the project. It does not inspire confidence that the DOJ – which a FOIA request proved had lobbied to kill unanimously supported FOIA legislation and ritually defends bad agency FOIA actions in court – was in a position to influence the direction of such an important project.
ProPublica recently published an “aneurysm-inducing” collection of FOIA frustrations to highlight the ways FOIA still needs to improve as the recently-upgraded law turns 50. One ProPublica reporter – Justin Elliott – recounted his frustration upon learning that any request submitted to the Justice Department that is not actually seeking documents from its FOIA office (the Office of Information Policy) is placed in the “complex” track, requiring additional processing time. Jesse Eisinger, for his part, shared a story about a FOIA request he filed with the Securities and Exchange Commission “for all the investigative files from its closed probe of a certain bank.” While Eisinger tried narrowing his request to reduce processing time, his attempts were unsuccessful because the boxes he wanted –which were “stored in a warehouse and all pertained to the investigation into the bank” – weren’t labeled.
The 103-member Chief FOIA Officers Council, co-chaired by DOJ OIP head Melanie Pustay and acting head of the FOIA Ombuds office Nikki Gramian, met for the first time last Friday to discuss implementing a “release to one is a release to all” standard for FOIA disclosures. Journalists have expressed concerns that such a policy – while fulfilling the spirit of the FOIA – would be a disincentive from using the FOIA and ruin the possibility of scoops (although agencies regularly post FOIA logs that could conceivably do the same thing, and a natural follow-through to posting logs would be to post the actual documents).
As the National Security Archive argued in our 2015 audit, “the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole… Perhaps the best method that addresses both journalistic and FOIA advocates concerns’ is to require the documents be posted online, but not immediately. Currently, the Department of State posts FOIA’d documents quarterly.”
The Chief FOIA Officers Council, along with the Office of Management and Budget, is charged with “implementing the [release to one, release to all] policy and addressing journalists’ and agencies’ concerns by Jan. 1, 2017.” Journalists will be invited to the next meeting and given the opportunity to voice their opinions in person.
Judge James Pohl – an Army colonel presiding over the Guantanamo military commission of five of the alleged 9/11 planners – has returned “virtually all” of the prosecution’s evidence as inadequate and requiring review. Pohl noted that the prosecution has presented him with approximately 50 percent of the evidence they believe the defense is entitled to. Defense attorney Jay Connell said Pohl’s actions likely indicate the evidence was either over-redacted or “too skimpy.”
U.S. District Court Judge Rudolph Contreras recently denied the State Department’s request for a 27-month extension processing Citizen United’s FOIA request “for emails among four former State officials and individuals at the Clinton Foundation and a consulting firm close to the Clintons, Teneo.” Citing the State Department’s “drop” in resources devoted to FOIA processing since last February, Judge Contreras said “Because these facts imply that Defendant has been ‘lax … in meeting its [FOIA] obligations…with all available resources. …,’ the Court does not find a twenty-seven month extension of time appropriate.” State has maintained in other FOIA cases that because most of its FOIA processing is done by retired foreign service officers, who “are limited by law to working no more than about 1,000 hours per year,” many FOIA processors were forced to take time off.
The Pentagon has removed a clause in its Law of War Manual “suggesting that journalists could be seen as combatants.” In August 2015 The New York Times Editorial Board published a damning rebuke of the 1,176-page Law of War Manual, particularly the manual’s instructions that members of the press may in some cases be categorized as “unprivileged belligerents.” The Board called on the secretary of defense to revise its guidance on journalists; the revision now reads “in general, journalists are civilians and are protected as such under the law of war.”
Daniel Meyer, recently the “Obama administration’s top official overseeing how intelligence agencies handle whistleblower retaliation claims,” has filed his own retaliation complaint with the Merit Systems Protection Board (after the Office of Special Counsel rejected his claims in April). Meyer accuses his DOD bosses of removing damning conclusions from a DOD inspector general report on the making of “Zero Dark Thirty” – namely that Leon Panetta leaked classified information to the makers of the film. Meyer says that the “conclusion was later removed after then-acting Inspector General Lynne Halbrooks met privately with Panetta.” The National Security Archive posted the “Zero Dark Thirty” file, a collection of all the available official documents on the mission to kill Osama bin Laden, in an effort to balance the Obama administration’s decision to grant the film’s producers exclusive and unprecedented access to classified information about the operation.
US atomic tests in Bikini Atoll in July 1946 staged by a joint Army-Navy task force were the first atomic explosions since the bombings of Japan a year earlier. Documents posted by the National Security Archive about “Operation Crossroads” shed light on these events as do galleries of declassified videos and photographs. Of the more eyebrow-raising revelations is that the second test – Baker – contaminated nearby test ships with radioactive mist, making them “radioactive stoves, and would have burned all living things aboard with invisible and painless but deadly radiation.” (Footage of the Baker test was also used by Stanley Kubrick in the closing scenes of Dr. Strangelove.) International observers were invited to watch the tests; Soviets interpreted the display as a threat, responding that they were “not afraid” and that they had “wonderful planes” that could easily bomb US cities.
This week’s #tbt pick is chosen with U.S. District Judge Katherine Forrest’s recent signaling that she would not ease convicted spy Jonathan Pollard’s parole requirements, which are “preventing him from taking a financial industry job,” in mind. This week’s #tbt pick is a 2012 National Security Archive posting on Pollard’s case, including the 1987 CIA damage assessment, which was released through the Mandatory Declassification Review process by the Interagency Security Classification Appeals Panel. The assessment included new details on the specific subjects and documents sought by Pollard’s Israeli handlers, such as Syrian drones and central communications, Egyptian missile programs, and Soviet air defenses.
What Pressing Issues Will the FOIA Advisory Committee Tackle for its Second Term? FRINFORMSOM 7/21/16
The FOIA Advisory Committee’s second term gets underway this morning at the National Archives and Records Administration. The first term’s most notable deliverable was its vote to update outdated Office of Management and Budget fee guidance – written before the internet and missing a key word. A recent blog from the Archivist of the United States notes that for its second term the Committee – at the direction of the White House – will “look broadly at the challenges that agency FOIA programs will face in light of an ever-increasing volume of electronic records, and chart a course for how FOIA should operate in the future.” This directive gives the Committee a springboard for addressing some of the thorniest real-world FOIA issues agencies face, and an opportunity to provide concrete, actionable steps agencies can take to improve their FOIA shops.
The Justice Department has issued new guidance on agency response letters resulting from improvements codified by the FOIA Improvement Act. The guidance highlights that when issuing adverse determinations, agencies must provide requesters no less than 90 days to respond. It also emphasizes that agencies must advertise the availability of both FOIA Public Liaisons and the Office of Government Information Services as requester resources, including when an agency’s “unusual circumstance” will delay the processing of a FOIA request. The guidance fails, however, to remind agencies that “unusual circumstance” delays are not delays that result “from a predictable agency workload of requests, ” or that agencies cannot charge most FOIA fees if they do not meet the processing time limits (before the FOIA Improvement Act’s passage, agencies claimed they could still charge fees for late requests by deeming them “unusual”).
The American Society of Access Professionals held its National Training Conference this week in Arlington, VA. Expert panelists included the National Security Archive’s Nate Jones and Dr. Robert Wampler, MuckRock founder Michael Morisy, USAToday’s Brad Heath, FOIA litigators Mark Zaid and Scott Hodes, and FOIA specialists from across the federal government. In his keynote address, Judge Royce Lamberth hailed FOIA processors as the heroes of government accountability, a mentality that should be cultivated and reinforced. The conference was a good reminder of 1) the importance of professional, two-way dialogues between requesters and FOIA processors, and 2) that FOIA processors are negatively affected by bad agency decisions – from outdated FOIA processing software to antagonistic agency cultures – in many of the same ways requesters are (Mark Zaid pointed out that many problems heaped on the FOIA office come from managerial/non-FOIA staff).
The New York Times is suing the Defense Department under the FOIA “to force the Pentagon to release full copies of more than a thousand pages of work-related emails Defense Secretary Ash Carter sent and received from his personal account.” Last December Carter acknowledged that he used personal email for government business for the “first few months” of his tenure as Defense Secretary, which began in February 2015. News that Secretary of State Clinton used a personal email address broke in March 2015, meaning Carter continued relying on personal email to conduct government business while Clinton was under intense scrutiny for doing so while Secretary of State. The Defense Department responded to the Times’ initial lawsuit by releasing 1,300 heavily-redacted emails sent from Carter’s personal account; Pentagon spokesman Gordon Trowbridge maintains that “there was no classified material in Carter’s personal emails.” After Campaign for Accountability called for the DOD’s Inspector General to investigate, the IG sent a response letter saying that it would not investigate — only to later retract and say the letter was sent in error and no final decision had been made.
Senator Patrick Leahy is demanding that the restrictions to the Privacy and Civil Liberties Oversight Board contained in the Senate Intelligence Committee’s version of the FY2017 Intelligence Authorization Act be withdrawn. Steve Aftergood noted earlier this year that SSCI’s version would limit the Board’s scope to the privacy and civil liberties “of United States persons” only, and “does not appear to permit even ‘secondary’ consideration of the privacy of non-U.S. persons” – muddying the waters of how PCLOB would – or if it even could – act in areas where nationality is unclear. Leahy’s letter to the Senate Intelligence Committee called the proposed changes “‘completely unacceptable’ and ‘misguided.’ [Leahy] deplored what he portrayed as an emerging pattern of efforts by the intelligence panels to undermine the oversight board’s independence and authority. He also said any proposed changes to the board should go through the Judiciary Committee.”
If successful, this would be the second curtailing of PCLOB’s mandate in as many years. Last year Republicans on the House Intelligence Committee successfully advanced a provision to the 2016 intelligence authorization bill blocking PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by former PCLOB chair David Medine, which argued that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”
Congress has finally released the controversial 28-pages of the June 2003 report into 9/11 that detail “possible links” between the hijackers and Saudi officials – and the intelligence community’s Saudi Arabia blind spot. The pages describe “an ‘unacceptable’ lack of awareness by both the CIA and the FBI on Saudi activities inside the United States,” going on to note: “Only recently, and at least in part due to the Joint Inquiry’s focus on this issue, did the FBI and CIA establish a working group to address the Saudi issue.” The congressional document “was declassified by the Intelligence Community prior to its public release.”
The release of the “28 pages” does not mean that no other documents related to 9/11 are being senselessly withheld. Former Senator Bob Graham, who has long fought for the pages’ release, notes that the FBI continues to conceal important aspects of its investigation in Florida. The DOD is withholding nearly 60 pages of Donald Rumsfeld’s documents on Osama bin Laden, Al Qaeda, and the Taliban from 2001 — including the nine months preceding the attack, leaving it unclear what Rumsfeld’s office did or did not know in the lead-up to the tragedy. (The Archive requested the records a decade ago, and only recently received the heavily redacted response; all withholdings were pursuant to the national security exemption and FOIA’s “withhold it because you want to” exemption 5.) The 9/11 Commission’s interviews with Presidents Bush and Clinton are also still secret, as are interviews with Vice President Cheney.
“Even though the government denied at least part of more than 345,000 requests [in FY 2015], it only received 14,639 administrative appeals.” This statistic is part of the reason why MuckRock is launching a database of FOIA exemptions – what founder Michael Morisy hopes will be a “Google for FOIA rejections” that will help requesters understand why their request was denied, and how they can fight it. Morisy says that the goal is to chart how individual exemptions are used, and the real-world negative impacts of the exemption. MuckRock hopes to launch the database by the end of the year.
Managing editor at the New York Times, Sergio Florez, filed FOIA requests with both the CIA and the FBI on his father, Cuban diplomat and eventual defector, Dr. Armando J. Florez. The CIA issued a Glomar denial, prompting the younger Florez to appeal, and eventually sue. The district court upheld the CIA’s Glomar denial. While Florez appealed the ruling, the FBI released documents in response to Florez’s request, prompting the Second Circuit to remand the case back to the lower court; the Second Circuit found “that the FBI disclosures are relevant to the issues raised in this appeal and that those documents should be considered in this case.” In her dissent, however, Judge Debra Ann Livingston argued that the FBI documents “disclose little regarding Dr. Florez and say nothing at all about any connection to the CIA” and “are simply not helpful in assessing the logic and plausibility” of the CIA’s Glomar.
Buzzfeed recently published documents released in response to its FOIA lawsuit against the Department of Defense for information on detention practices in Afghanistan. Specifically, Buzzfeed published documents on the use of detention techniques at Bagram Air Base from January 2010 through April 2011, which highlight how the “separation” technique (solitary confinement) thrived there (and presumably at other facilities across Afghanistan and in Iraq). The documents note, among other things, that “In many cases, the prisoners were already being kept in ‘segregation’ for days or even weeks before interrogators formally asked for permission to apply separation,” and “Only once did military lawyers and top brass deny a request to apply separation. Indeed, they approved requests even in cases where military lawyers expressed reservations.”
National Security Agency director Michael Rodgers announced that Cyber Mission Force troops, a dedicated cyber unit that “will eventually contain 6,200 people split into 133 teams,” will be operational by fall. Rogers said that “He said he’s trying to build the force, made up of both military personnel and civilians, even as his agency faces budget cuts. He said it’ll be fully capable by Sept. 30, 2018.” Rogers went on to note that “he wants cyber to be integrated into the military and become a tool available to policymakers and operational commanders, as long as it’s used legally.”
This week’s #tbt pick is the 2012 posting, “Nuclear Terrorism: How Big a Threat?” The posting contains 40 declassified documents from US and other government agencies concerning assorted aspects of the current US nuclear counterterrorism effort.
The 6th Circuit Court of Appeals has ruled en banc against the Detroit Free Press and against the status quo, determining that federal booking photos and mugshots taken by the US Marshals no longer need to be released through FOIA. The pernicious ruling overrules a previous 6th Circuit decision in favor or releasing mugshots under FOIA, and forces transparency advocates to spend limited staff and resources to fight off government efforts to shrink the current transparency landscape, rather than fight to expand the public’s right to know. Adam Marshall of the Reporters Committee for the Freedom of the Press wrote eloquently last year why the secrecy surrounding federal booking photos and mugshots is troubling, noting that while there are “no privacy rights implicated by releasing photos of persons who have been arrested, indicted, and appeared in open court… there is a powerful interest in ensuring the criminal justice system remains open to the public.” Marshall’s piece, with an important history of the difficulties obtaining federal mugshots even under the FOIA prior to today’s ruling (including the need to file the FOIA from Kentucky, Michigan, Ohio, or Tennessee), is available here.
C-SPAN’s American History TV recently visited the National Security Archive to talk FOIA history with our director, Tom Blanton. The topics covered in the informative and entertaining 11-minute video range from the signing of the Freedom of Information Act in 1966 (thanks in no small part to the work done by President Johnson’s press secretary, Bill Moyers) to FOIA’s important role correcting the Flint water contamination crisis and Marines being issued defective bulletproof vests. In both instances FOIA helped draw sustained attention to the issues, prompting the Flint government to switch water suppliers and the DOD to issue a recall of the life-threatening vests, respectively.
Blanton also highlighted the important role commercial entities played in paving the way for the modern Freedom of Information Act. Prior to the 1800s access to government records was only granted after judicial proceedings that proved a requester’s “need to know” what was in the documents, rather than a “right to know.” During the 19th century, however, real estate title insurance companies argued repeatedly and effectively that courthouse records, funded by taxpayer dollars, should be public records, laying the groundwork for public availability of courthouse records and other government documents.
Earlier this week the Senate Judiciary Committee held its hearing on “FOIA at 50: Has the Sunshine Law’s Promise Been Fulfilled?” Key takeaways from the hearing include the need for more proactive posting, posting FOIA responses online for all to see, and for agencies to take advantage of available technology to improve their FOIA processing rather than sticking with proprietary software that hampers the requester (and FOIA processor) experience. Witnesses included Sunshine in Government Initiative director Rick Blum, the Office of Government Information Services founding director Miriam Nisbet, University of Arizona professor and Society of Professional Journalists chair David Cuillier, and Professor Margaret Kwoka; all of their written testimonies are available here.
In a recent War on the Rocks article, Dean of American University’s School of International Service, James Goldgeier, discusses the promises that were made (or not) by American leaders to the Soviet, and later Russian, leadership about the eastward expansion of NATO after the dissolution of the USSR – and how a FOIA release sheds light on a key moment in the debate. In February 1990 US Secretary of State James Baker told Soviet leader Mikhail Gorbachev, discussing the terms of German unification, that “there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east.” Goldgeier writes that an October 1993 meeting between US Secretary of State Warren Christopher seemed to continue in that vein, with Christopher telling Russian President Boris Yeltsin during the October meeting that the US would not support new members joining NATO. A year later, however, NATO enlargement proceedings began.
Goldgeier successfully pried loose the memorandum of conversation of the October meeting with a FOIA request, “which sheds much more light on what was said in October 1993 (and in what order) than do the memoirs of Christopher and Clinton’s chief Russia hand, Strobe Talbott.” Goldgeier’s analysis of the memcon confirms that the document “makes clear why Yeltsin later felt betrayed. The elements of the Christopher and Talbott recitations are there, but not in quite the same order as implied, and in ways that are fairly misleading.”
Marshall Project investigating and New York Times reporting are drawing attention to the for-profit prison transport service – vans that carry “tens of thousands of fugitives and suspects — many of whom have not been convicted of a crime – locally and across state lines.” The Marshall Project filed FOIA requests, obtained court documents, and conducted countless interviews to document “a pattern of prisoner abuse and neglect in an industry that operates with almost no oversight.” Some of the more alarming trends uncovered include extremely limited training for guards, sexual assault, and sporadic monitoring by the Department of Transportation (DOT). The Marshall Project found that DOT “monitoring is infrequent, and companies are typically given advance notice of an audit. Between 2000 and 2015, records indicate, the department issued fines 20 times, most below $10,000.”
A Top Secret//SI//REL USA, FVEY National Security Agency briefing on Cyber Threats and Special Source Operations (SSOs) is one of the highlights from this week’s Cyber Vault update (updated every Wednesday). The briefing discusses the surveillance programs the National Security Agency (NSA) participates in, with a breakdown of who the NSA partners with, what legal authority authorizes each program, and what various partner constraints are.
PDF page 14 provides a list of “access portfolios” the NSA maintains by who partners in the program with the agency (either unilateral, foreign, or corporate). Unilateral programs are programs in which access is enabled by US partners; the list of unilateral programs include Operations Mystic, Rampart-I/X, Rampart-M, Rampart-T, and one redacted program. Foreign access portfolios – those enabled by 2nd and 3rd parties – include Rampart-A and Windstop, while corporate access portfolios, in which access is enabled by telecom providers, include Blarney, Fairview, Stormbrew, Prism, and Oakstar.
The document also includes a slide (PDF page 17) detailing what legal authorities authorize various surveillance programs. According to the briefing: EO 12333 authorizes Rampart-A, Rampart-I/X, Rampart-M, Rampart-T, DGO, Windstop, Oakstar, Mystic, and one redacted program; FISA authorizes Blarney; Transit authorities authorize Stormbrew and Fairview; and FAA-702 authorizes Stormbrew, Fairview, Prism, and Blarney.
The FBI alleged in a legal brief last week that its network investigative techniques (NIT) hacking tool is not malware because it’s not “malicious.” The author of the brief functionally argues that techniques used to “break into the computers of suspected criminals” should not be considered malware because the breach is done with good intentions. The CATO Institute’s Julian Sanchez uncovered the brief in connection to a case on Operation Playpen, in which the FBI broke into a child pornography website by exploiting a flaw in the TOR browser. More on the creepily named Operation Playpen here.
This week’s #tbt pick is chosen with Washington Nationals’ star catcher Wilson Ramos’ first appearance in the MLB All Star game in mind, and is an April 2016 blog by Archive FOIA Project Director Nate Jones on the State Department’s declassification of a cable on the November 9, 2011, kidnapping and November 12 rescue of Ramos in response to a National Security Archive Freedom of Information Act request. According to the previously “Secret/NOFORN” cable composed by the US Embassy in Caracas, Ramos’s rescue “was the result of good police work” by Venezuela’s Corps of Scientific, Penal and Criminal Investigative Corps (CICPC).
By Lauren Harper and Sarah Chaney Reichenbach
In June 2012 Jonathan Lalley, Special Assistant to the State Department spokesperson, sent out an email alert that National Security Archive fellow and author of Fighting for Darfur: Public Action and the Struggle to Stop Genocide, Rebecca Hamilton, was “fishing around” for information on the existence of a classified annex to the 2009 Sudan Policy Review. The review, undertaken to guide the Obama administration’s strategy as the south of Sudan headed toward a secession referendum, had faced delays and bureaucratic infighting. Lalley said that if Hamilton “comes to you direct asking about an alleged classified annex to the Sudan strategy that resulted from the 2009 review process, please know that both PA [Public Affairs] and NSS [national security staff] have already responded ‘we have nothing for you.’ Please flag for us if she reaches out directly to S/USSES.”
Hamilton had been seeking clarification on contradictory statements about the existence of the annex for a 2012 Reuters investigation on the formation of US policy toward what was, by then, a newly independent South Sudan. Back in October 2009 when the State Department had released an outline of its Sudan Policy Review, then-Secretary of State Hillary Clinton told reporters there was “a classified annex to our strategy” while Maj. Gen. J. Scott Gration testified before the House or Representatives in December 2009 that there “is no annex.” But a recently declassified working draft of the strategy, “US Sudan Interagency Policy Review Strategy Paper,” dated May 2009, does have a classified annex entitled “Incentives and Disincentives,” which seems to vindicate Clinton’s claims that the annex, at least at one point, existed.
The draft was among a number of documents that were recently released to the Archive’s Genocide Documentation Project in response to a FOIA request Hamilton filed with the State Department in 2010. While the contents of the annex were redacted in the released document, other parts of the document show that the US government was prepared to “unwind sanctions and restrictive legislation” if the government of Sudan complied with the Comprehensive Peace Agreement (CPA) it signed with the Sudan People’s Liberation Movement in 2005.
The draft lays out a set of assumptions undergirding the development of the US government’s Sudan policy. Among them is the assertion that while implementation of the CPA was necessary, its implementation alone would not be sufficient to guarantee peace. This assumption seems to be reflected in the draft’s ambitious “national engagement strategy” that “supports political stability, enhances internal security, improves democratic governance, and promotes economic development for all of Sudan.” The proposal, fleshed out in detail in the May 2009 draft, is absent from the final version released in October 2009.
The draft also assumes – correctly as it turns out – the eventual secession of South Sudan in 2011, and notes that an independent South Sudan “would require a substantially increased nation-building effort resulting in a high degree of US commitment and leadership.” In hindsight, the observation is particularly poignant; the 2013 outbreak of civil war in South Sudan, less than two years after it gained independence, has killed an estimated 50,000 people and left 1.6 million more displaced.
Reviewing the declassified material, Hamilton notes that the documents “reveal the thorny debates that bogged down the review and left the US government’s Sudan strategy in limbo for the first 18 months of the Obama administration.”
The documents also highlight the frustration felt by US officials working on Sudan policy as the country headed toward the secession referendum. In a set of email exchanges, the head of the U.S. Embassy in Khartoum, Alberto Fernandez, wrote that “what Khartoum and the Sudan effort need is not necessarily more bodies but more of the right kind of people and those are often in short supply.” He wrote the email 19 days before he left the post, noting that “with my departure in May, there will be NO Arabic speaking FSOs at post.”
The same set of email exchanges also shows at least one official’s desire to stop using the term “genocide” in the policy review. In an April 27, 2009, email one official writes:
“[T]he use of the word genocide in this document seems out of date and inaccurate. Given current realities on the ground, it could simply say ‘definitive end to the conflict.’”
Then-Secretary of State Colin Powell declared Darfur a genocide before the Senate Foreign Relations Committee on September 9, 2004, saying “When we reviewed the evidence compiled by our team, along with other information available to the State Department, we concluded that genocide has been committed in Darfur and that the Government of Sudan and the jinjaweid bear responsibility — and genocide may still be occurring.”
The 2009 desire to stop using the word “genocide” draws parallels to Rwanda and the Clinton administration’s refusal to label the mass killings in Rwanda as a genocide in 1994 despite overwhelming evidence; a May 1, 1994, State Department document explicitly warns: “Be careful … Genocide finding could commit U.S.G. to actually ‘do something.'” In this case however, the word genocide ended up in the final Policy Review, a result that Hamilton suggests was the consequence of a vocal constituency of US citizens who pushed to government officials to keep using the word.
The State Department deserves credit for releasing the documents, considering the June 2012 email adds to a growing list of examples of Hillary Clinton’s Department of State scrutinizing politically sensitive documents requested under the FOIA.
The release of Lalley’s “fishing around” email, while mildly embarrassing, is in the State Department’s best interest as it attempts to rebuild public trust and meet its requirements under the FOIA in the wake of the Hillary Clinton’s email fiasco. The release of the draft Policy Review six years later begs new questions on the evolution of US policy towards Sudan and South Sudan, and the public unavailability of this information at the time.