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Pernicious FOIA Ruling on Federal Mugshots Stands, and More: FRINFORMSUM 5/25/2017

May 25, 2017

SCOTUS Won’t Hear Mugshots Case, Keeping Federal Mugshots Secret

The Supreme Court left a July 2016 6th Circuit Court of Appeals ruling, which says that federal mugshots don’t need to be released under the FOIA, in place this week.

Last July the appeals court ruled en banc against the Detroit Free Press and against the status quo, determining that federal booking photos and mugshots taken by the U.S. Marshals no longer need to be released through FOIA. The pernicious ruling SCOTUS let stand 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 has eloquently written 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 last year’s ruling and SCOTUS’s recent decision (including the need to file the FOIA from Kentucky, Michigan, Ohio, or Tennessee), is available here.

Army Lost Track of More than 1 Billion in Weapons in Iraq

Amnesty International recently published a Defense Department Inspector General audit it obtained via the FOIA that shows “The US Army failed to keep tabs on more than $1 billion worth of arms and other military equipment in Iraq and Kuwait.” The transfers were a part of the “Iraq Train and Equip Fund” (ITEF), which was allocated $1.6 billion in 2015 to combat ISIS, and the equipment included hundreds of Humvees and thousands of assault rifles and mortar rounds, all intended for the central Iraqi Army. The IG audit faulted “fragmentary record-keeping,” record-keeping practices that increase the likelihood of human error, and incomplete records.

Hawaii Ramps up Emergency Plans Because of North Korea Threat

FOIA-released documents show how Hawaii is “massively overhauling its archaic nuclear contingency plans” and planning to counter new threats posed by North Korea. Motherboard reporter Sarah Emerson filed a FOIA request with the Hawaii Department of Defense for its nuclear evacuation plans, and was told “that no current materials exist, and that extremely outdated plans had been rescinded. Hawaii stopped planning for an attack in the 1980s, due to the low risk of an attack, although it did simulate a half-kiloton nuclear explosion near Oahu’s Honolulu Harbor in 2006.” The agency instead provided Emerson with a PoAM – a plan of action and milestones – for a new ballistic missile defense initiative and details on how the agency is responding to North Korean threats.

Were Trump Disclosures Legal?

Steve Aftergood’s recent summary of the legality President Trump’s disclosure of classified information to Russian officials, drawing primarily from a May 17 Congressional Research Service Legal Sidebar, concludes that “it still seems fairly clear that the Trump disclosures last week are not a matter for the criminal justice system, though they may reverberate through public opinion and congressional deliberations in a consequential way.” Aftergood notes that a handful of experts may disagree with this conclusion, insisting “that it’s more complicated, and that it remains conceivable that Trump broke the law. See:

“Don’t Be So Quick to Call Those Disclosures ‘Legal’” by Elizabeth Goitein, Just Security, May 17, 2017

“Why Trump’s Disclosure to Russia (and Urging Comey to Drop the Flynn Investigation, and Various Other Actions) Could Be Unlawful” by Marty Lederman and David Pozen, Just Security, May 17, 2017

“Trump’s disclosures to the Russians might actually have been illegal” by Steve Vladeck, Washington Post, May 16, 2017

Update, 05/23/17: But see also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23, 2017.”

Historic Jump in FOIA Lawsuits

Numbers crunched by The FOIA Project.

FOIA lawsuits have reached a 25-year high, according to the latest report from The FOIA Project. There were 63 FOIA lawsuits filed in April alone, and 60 to-date this May. The FOIA Project crunched the numbers and found that, “If the pace of FOIA filings during the first seven-plus months of this fiscal year continues at the same rate, FY 2017 will see upwards of 579 FOIA suits filed. This would be up from 512 such suits filed during the last fiscal year of the Obama Administration.” The numbers were based on court records analyzed by the Transitional Records Access Clearinghouse (TRAC).

The Chiquita Papers

The National Security Archive’s Chiquita Papers collection represents key evidence behind a “communication” calling on the International Criminal Court (ICC) to investigate officials from Chiquita Brands International for facilitating crimes against humanity committed by armed groups the company paid in Colombia. The petition to the ICC’s Office of the Prosecutor was brought by the International Human Rights Clinic of Harvard Law School, the International Federation for Human Rights, and the Colectivo de Abogados José Alvear Restrepo, a Colombian human rights organization, and was made public recently at a press conference in Bogotá, Colombia.

The Archive provided more than 48,000 pages of internal Chiquita records to the ICC as part of the communication, including financial records, legal memoranda, handwritten notes, and the secret, sworn testimony of company officials that help to identify individuals at Chiquita who steered millions of dollars in “sensitive payments” to Colombian insurgent groups, government security forces, and right-wing paramilitary militias.

The ICC action comes at an important moment, just as Colombia begins to implement a historic peace agreement ending more than 50 years of conflict with rebels from the Revolutionary Armed Forces of Colombia (FARC).

The Archive’s recent posting features a selection of key excerpts from the evidence and a dozen full-text documents from the case.

National Security Archive Founder in NYT on ‘What to Remember About Watergate’

The National Security Archive’s founder, Scott Armstrong, penned an op-ed for the New York Times identifying key lessons from Watergate that are “worth remembering” during the investigation into the Trump administration’s ties to Russia. Armstrong notes that bipartisanship will be crucial; Armstrong, who was a staff member on the Senate Watergate Committee, reminds readers that in 1972 “A reclusive Mr. Nixon worked behind the scenes to impede investigators and prosecutors. He believed that his secret tapes would bring down John Dean; instead they fertilized the bipartisan outrage that brought about his own demise. But that bipartisanship didn’t exist when the Watergate committee began its work.”

Anatoly S. Chernyaev Diary, 1977: Inside the Central Committee during Brezhnev’s stagnation

The National Security Archive marks what would have been Anatoly Sergeyevich Chernyaev’s 96th birthday today with the publication for the first time in English of his extraordinary diary for 1977, written from inside the Central Committee of the Communist Party of the Soviet Union, where he was then a Deputy Director of the International Department.

The Archive’s dear friend and partner in opening historical records passed away this past March, but his voice is with us and remains irreplaceable for anybody who wants to understand not only the end of the Cold War in the 1980s, but also what was going on at the very top of the political hierarchy in Moscow in the darkest years before the dawn of the new thinking that would put Chernyaev at the right hand of Mikhail Gorbachev.

Read the diary here.

#TBT – 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)

This week’s TBT pick is a 2013 posting on a fabled but previously secret State Department intelligence memorandum that predicted, five months in advance, the 1973 Arab-Israeli war. The document was rescued from classified vaults that were so obscure that even State Department historians and CIA FOIA officers could not penetrate them. Published for the first time in 2013 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.” Get the rest of the story here.

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Newly declassified FOIA document discusses 2016 Obama order to fight ISIS in cyberspace

May 5, 2017

By Michael Martelle

Cyber Vault Highlights:
40+ Primary Sources Every Cyber Student Needs

A FOIA request filed by the National Security Archive’s Intelligence Analyst, Dr. Jeffrey Richelson, has won the partial release of documents on the US’s cyber offensive against the Islamic State, providing a valuable look into the integration of cyber-operations into multi-domain battle and global counter-terrorism.

In July 2016 the Washington Post reported that the United States Cyber Command had created a new unit to develop and use cyber weapons against the Islamic State, prompting Richelson to FOIA documents on the establishment of the unit – Joint Task Force (JTF) Ares. In response, US Strategic Command released partially redacted versions of Task Order 16-0063 and Fragmentary Orders 01 and 02, which were sent to related cyber commands in the US military to establish the task force.

These documents establish JTF Ares with the mission of developing and using malware and other cyber-tools to damage and destroy ISIL networks, computers, and mobile phones. They also give JTF Ares instructions to coordinate and deconflict with other commands, but do not place limits on pursuing and attacking ISIL networks and hardware globally.

The mission assigned to JTF Ares aligns with the fourth strategic goal in the Department of Defense’s Cyber Strategy to “build and maintain viable cyber options and plan to use those options to control conflict escalation and to shape the conflict environment at all stages. […] If directed, DoD should be able to use cyber operations to disrupt an adversary’s command and control networks, military-related critical infrastructure, and weapons capabilities.”

The mission, difficult enough in isolation, is complicated significantly by related operations in the land, air, and sea domains. Thus, cyberspace operators must coordinate, or deconflict, not only with each other, but also with units acting in other domains as well as intelligence agencies. Effective deconfliction allows warfighters to work in concert with one another to weaken or destroy opponents. Ineffective deconfliction, however, results in a multi-domain campaign that is less than the sum of its parts. Thus, instructions are given to JTF Ares:

US Central Command and Special Operations Command:

As well as a name-redacted intelligence entity:

Keeping in mind the heavy need for deconflicting operations, it is notable that command and control of JTF Ares is given to the commander of Cyber Command (Admiral Rogers, also the head of the NSA) instead of Central Command or even Operation Inherent Resolve. This suggests that JTF Ares is meant to operate globally against ISIL. Without a geographic limit in place, and with ISIL fighters scattering globally as territory in Syria and Iraq is lost, the mission assigned to JTF Ares is reminiscent of the 2001 Authorization for the Use of Military Force in its potential for open-ended interpretation.

The control of Cyber Command over JTF Ares also highlights the importance of the NSA to the task force. While personnel for JTF Ares come from the cyber bodies of each service, they are required to meet NSA standards.

The leadership of Cyber Command (dual-hatted as head of the NSA), co-location with the NSA at Fort Meade, and emphasis on NSA standards underlines the close relationship between the NSA and Cyber Command as well as the blurring of the line between passive surveillance and active disruption in the cyber domain.

FBI Says Closed Investigation Still Ongoing in FOIA Denial for Trump-Related Records: FRINFORMSUM 5/4/2017

May 4, 2017

Anonymous Phone Call Threatens Violence if Bankruptcy Lawyer Keeps Bothering Trump; FBI “Inadvertently” Claims Call Investigation Still Ongoing in Response to Records Request

FOIA releases from the FBI raise new questions about President Trump’s business tactics, particularly when things were not going his way. The FOIA responses – to Buzzfeed’s Jason Leopold and MIT’s Ryan Shapiro – also shed new light on two previously unreported threatening phone calls – one the FBI characterized as “overt extortion” – related to Trump’s business dealings that were investigated by the bureau.

The more recent is a 2009 call that was received by a high-profile bankruptcy lawyer representing clients who “stood to lose more than a billion dollars” over Trump’s failed casino venture, Trump Entertainments Resorts. The caller told the lawyer, Kristopher Hansen, that “My name is Carmine. I don’t know why you’re fucking with Mr. Trump but if you keep fucking with Mr. Trump, we know where you live and we’re going to your house for your wife and kids.” Hansen reported the call to the police and the FBI, who traced the call to a public payphone – located across the street from where Trump was filming The Late Show with David Letterman on the afternoon the call was received.

Of special interest to frequent FBI FOIA requesters is that in the course of Buzzfeed fighting for these records, reporters noted that “Some of the FBI documents pertaining to the call have been tagged with a code indicating that the bureau was withholding information because its investigation into the incident was ongoing. A day after Buzzfeed News asked for confirmation that the investigation was still continuing, the FBI sent a letter saying that use of the code indicating an ongoing investigation had been ‘inadvertent.'” (emphasis added)

Buzzfeed also reported a similar incident that occurred in 1982, at a time when the New York City Housing Commissioner, Anthony Gliedman, refused to grant Trump a $20 million tax abatement for the construction of Trump Tower that would have significantly reduced, or entirely eliminated, the taxes on the building. After Gliedman’s decision, he received a call from someone threatening to kill him over the refusal. FBI records also show that, bizarrely, the day after the menacing phone call was made, “Trump himself called the FBI, saying he had received a telephone call from a person ‘who read about Trump’s tax abatement problem with Commissioner Gliedman.’ The caller said that someone — the name is blacked out in the FBI files — ‘had been ‘shafted’ by Gliedman and for that reason, was going to retaliate.’” Trump, he claimed, notified the FBI out of concern for Gliedman’s safety. (Gliedman would later retire and go on to work for Trump.)

OIP Still Hawks Misleading 91% FOIA Release Rate

The Department of Justice’s Office of Information Policy yesterday released its 2016 summary of all agency FOIA reports – again touting the very misleading release rate of 91.3%. The National Security Archive has consistently debunked this claim online and in congressional testimony. The figure is disingenuous because, as Archive Director Tom Blanton told the Senate Judiciary Committee in 2015, “The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming ‘no records,’ ‘fee-related reasons,’ and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.”

The report also shows that the US government spent $36.2 million dollars defending agency FOIA positions in 2016, up nearly $5 million from 2015.

Civil Penalty Proposed for Non-Compliance with Open Gov Law

The California Assembly Judiciary Committee recently – and unanimously – approved AB 1479 on April 25. The bill “creates a civil penalty of up to $5,000 for public agencies if a court finds that ‘bad-faith non-compliance’” with the California Public Records Act has occurred. East Bay Times reporter Thomas Peele pointedly argues that, even if the bill does not become law, “it should make government employees pay the penalties for failing to act on requests in good faith out of their own pockets.”

Michigan State University Sues ESPN over Public Records Request

MSU is suing ESPN over its FOIA request for information on ongoing sexual assault investigations. The February 10 FOIA request specifically sought “all police reports containing allegations of sexual assault since Dec. 10, 2016, as well as records of arrests made between Feb. 6 and Feb. 9, according to court documents. The request came one day after MSU announced the suspensions of three MSU football players and a staff member associated with the team amid a sexual assault investigation.” (ESPN won a separate lawsuit against MSU in 2015 for a 2014 FOIA  “for incident reports involving 301 student-athletes.”) MSU is asking the court to decide “whether the police reports can be withheld through a FOIA exemption relating to open police investigations.” The Lansing State Journal notes that MSU routinely uses the police investigation exemptions to deny documents that are not police products, including internal university investigations and emails.

Oversight Trumps Intelligence Secrecy

A new DOD directive highlighted by Steven Aftergood mandates that, “when it comes to internal Pentagon oversight, even the most tightly held intelligence programs are required to cooperate without reservation.” This includes providing “complete and unrestricted access to all information concerning DoD intelligence and intelligence-related activities regardless of classification or compartmentalization, including intelligence special access programs.” Aftegood notes that, in theory, this should strengthen the existing framework of internal intelligence oversight, although it is hard to gauge how well it works currently.

Chiquita Papers: Uncertainty Fueled Staff Concerns about Payments to Guerrillas and Paramilitaries

Chiquita’s Colombia-based staff questioned the company’s payments to illegal armed groups, and asked whether Chiquita had gone beyond extortion and was directly funding the activities of leftist guerrillas and right-wing paramilitary groups, even while top company executives became “comfortable” with the idea. The New Chiquita Papers are the result of a seven-year legal battle waged by the National Security Archive against the U.S. Securities and Exchange Commission, and later Chiquita itself, for access to tens of thousands of records produced by the company during an investigation of illicit payments made in Colombia.

This is the second in a series of stories jointly published by the National Security Archive and VerdadAbierta.com documenting how the world’s most famous banana company financed terrorist groups in Colombia.

The first posting in this series can be found here.

Trump Continues U.S. Declassified Diplomacy with Argentina

The Trump administration recently released over 900 previously classified State Department records on human rights abuses in Argentina, providing important insights into the notorious Southern Cone multinational entity known as Operation Condor.

The records reveal that Condor members considered opening “field offices” in the U.S. and Europe, and offer new information about the fate of disappeared militants from the 1970s and 1980s.

This is the third tranche of records the U.S. government has released going back to a March 2016 commitment by President Barack Obama to open historical materials relating to Argentina’s earlier military dictatorship.

What’s NeXT at the NSA?

In 1989 the National Security Agency reviewed the NeXT Computer – Steve Jobs’s first post-Apple project -, discussing its hardware, its software environment, and application toolkits. The review also notes the computer’s ergonomic features, suggesting that with the 1-foot cube, a 17″ monitor and a keyboard with mechanical mouse – NeXT was conscious about the system size. The NSA concluded that the computer “has the potential to make significant advances in workstation computing within the Agency… in the smallest, cleanest packaging available today.”

This review is one of 11 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, May 3.

Zero Dark Thirty Movie Poster

TBT Pick – The Zero Dark Thirty File

Today’s #tbt pick is chosen with the sixth anniversary of the killing of Osama bin Laden in mind (May 2, 2011) and is the Archive’s 2013 posting, the “Zero Dark Thirty” file, a collection of all the available official documents on the mission to kill Osama bin Laden. The posting was an effort to balance the Obama administration’s decision to grant ZD30’s film’s producers exclusive and unprecedented access to classified information about the operation. The documents published include:

  • The earliest known official document mentioning Osama bin Laden, a 1996 CIA biographical sketch and his FBI “Most Wanted Fugitive” poster which spelled his name “Usama,” but included his now ubiquitous mug shot.
  • A leaked memo from Guantanamo Bay, describing the “Autonomy of a lead” and how the CIA determined that Abu al-Kuwaiti, once Khalid Sheikh Mohammad’s courier in Kandahar, may have escaped Tora Bora with bin Laden, and continued to deliver his messages.
  • The National Geospatial Agency’s satellite images of the Abbottabad compound pre- and post-construction and the DOD’s official conceptual illustration of its floor plan.

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CIA Tries to Roll Back History of Eisenhower’s Rollback Doctrine

May 4, 2017

Newly declassified documents demonstrate the continuing haphazard application of United States secrecy regulations. The progress of declassification remains a one step forward-two steps back dance, with authorities responsible for the release of records misapplying applicable regulations, laws, and secrecy guidelines. Today’s illustration of this resides in a recently-declassified history of United States policy toward unrest in Eastern Europe during the period up through 1956.

Among the most pernicious practices in records release is the continuing predilection of authorities to, in effect, re-invent the wheel, regarding as “secret” information that has previously been declassified into the public domain. Whether this results from authorities not keeping track of what they have previously declassified, from carelessness, or from a desire to reclassify information is not clear. In combination with the treatment of so-called “equities,” wherein government agencies are given the opportunity to delete information from documents originated elsewhere, because a document cites that agency’s information, or even simply that the data is of a type another agency deals with, this practice has the effect of absorbing a substantial fraction of the scarce resources the U.S. government devotes to records declassification. It also increases the cost of records security, since the partially released/partly secret records must be housed in fully secure storage facilities.

Today’s subject document is one of several studies written by Ronald Landa of the Historians’ Office of the Office of the Secretary of Defense (OSD). Landa, an experienced analyst, had previously worked in the State Department on the Foreign Relations of the United States series starting from the 1970s. He had graduated the University of Chicago and earned his PhD from Georgetown University. At OSD Landa wrote a series of historical studies profiling United States actions in a succession of situations that arose during the presidencies of Harry S. Truman and Dwight D. Eisenhower. This particular paper, “Almost Successful Recipe: The United States and Eastern European Unrest prior to the 1956 Hungarian Revolution,” serves to introduce U.S. policy for that region, which becomes problematic in Landa’s further treatise on the Hungarian Revolution. This study was declassified in January 2016.

The Landa OSD history importantly shows the continuities in United States policy toward Eastern Europe during a period when that region remained under Soviet domination. From 1949, when the Truman National Security Council (NSC) adopted the policy paper NSC 58/2, through Eisenhower’s NSC-174 paper, and then NSC-5608, Washington’s policy remained one of encouraging unrest among the populations of the Soviet satellite countries, but always stopping short of any measure that could be construed as active intervention.

This point is especially important in the context of the transition from Harry Truman’s presidency to that of Dwight Eisenhower, because the latter had campaigned on promises of liberating the satellites, a so-called “policy of boldness,” and one of “rolling back” the Iron Curtain. Once in office Eisenhower held a policy review of Rollback versus Containment, famously dubbed the “Solarium Study” for the White House room where participants met. The Solarium study found the Rollback policy impossible to implement without inviting Soviet military action, potentially World War III.

Ronald Landa contrasts this formal policy with the events of the period. He points to the central role of Eisenhower adviser C. D. Jackson, who had been a psychological warfare operative for Ike when the president was a general in World War II, and who favored Rollback policies. This Washington debate encountered repeated situations that demanded policymakers take a stance. In Poland the Soviets manipulated a fictive resistance movement to call on the West for intervention. Later there were food riots and labor unrest. The Polish troubles helped catalyze the Hungarian revolution. Czechoslovakia had food riots. In East Germany there was labor unrest and riots, most notably in the summer of 1953. Landa’s work features some of the best analysis of the broadcasting of Radio in the American Sector (RIAS), which some held to be instigators of the East German riots, especially those in Berlin. The OSD history shines new light on these events and the challenges they posed for U.S. policy.

It is in covering the Central Intelligence Agency (CIA) role that the government declassifiers have exceeded their bounds. A good deal of the CIA material, particularly on Poland and Albania, has been deleted in this 2016 redaction. Historian Landa shows, in passages that survived to be released, that senior CIA officials agreed it had become too difficult to operate in Eastern Europe, despite the political rhetoric of the Eisenhower campaign. Yet in Albania the U.S. itself, in a Central Intelligence Agency (CIA) covert operation, was doing the acting. In February 1953 the CIA completed an operational plan to overthrow the communist government there. More than ten thousand exile fighters were to enter Albania from bases in Greece, Italy and Yugoslavia to accomplish this. The projected date for the invasion was set at July 1, 1954. This extravagant covert invasion was planned even though Anglo-American efforts to infiltrate Albania with exile agent teams had consistently failed, with the covert operation registering few intelligence gains. The Albanian invasion plan was shelved when the Eisenhower administration decided to employ the CIA against Iran and Guatemala during that same time frame.

Explicit mention of the CIA’s Albania invasion plan is almost entirely deleted in the Landa history. Yet we know about it in considerable detail because of documents declassified under the Nazi War Crimes Disclosure Act (P.L. 105-246), which mandated the release of information on this subject. The law created an interagency working group with the power to release records. Between 1999 and 2007 some 8.5 million pages of wartime and postwar records were declassified under the Act. Because many Albanian exiles had been parties to war crimes (as collaborators of German or Italian occupiers) or victims of them the Albania records were included. Among 114,000 pages of CIA-era documents declassified under the Act are the files for the Albanian operation.

Thus in a 2016 declassification action the CIA is going back on document releases of a decade before. The CIA is certainly aware of the prior release—it has put out statements lauding the work as the largest congressionally-mandated single-subject declassification effort in history. And the agency spent $3.1 million on its Nazi War Crimes Act work. Going back on the Albania releases also appears to be against the current Executive Order governing secrecy, which mandates that agencies must apply for special permission to keep secret documents more than fifty years old. Equally deplorable, under the “equity” formula the Department of Defense has acquiesced in these CIA actions.

 

FOIA Shows How CIA Broke Down “Some of the Popular Terms of Today’s Homosexual Society”: FRINFORMSUM: 4/27/2017

April 27, 2017

The CIA’s Homosexual Investigations

In 1980, the same year the Democratic Party endorsed a gay-rights platform, the CIA issued a three-page memo on how to “ferret out” homosexuals during investigations, possibly for blackmail. MuckRock recently published the memo as part of a post of the CIA’s cringe-worthy (and insulting) practices and assumptions about the LGBT community. The memo notes that gay men have a penchant for PO boxes and reserve their “preferably foreign” car for the weekend (the memo makes no mention of lesbians or other sexual minorities). The document also labels “gay,” “straight” and “bi” as “gay passwords.” The same document also has a section entitled, “What is a Homo?” Perhaps it goes without saying that the CIA’s official view – before being sued in 1982 – was that “the homosexual has a problem.”

The text of the memo is published in Harper’s Magazine May 2017 edition, in its “Queer Theory” section.

DOJ Defends Agriculture Dept. Sidestepping Disclosure Rules

USDA animal welfare reports no longer public. Photo by Michael S. Williamson, The Washington Post, Getty Images.

On February 3, 2017, the Agriculture Department yanked from its website voluminous databases on animal abuse that it had previously provided without the public needing to file a FOIA request. Agriculture citied privacy concerns for the opaque move, which was condemned by animal rights activists from National Geographic to People for the Ethical Treatment of Animals.

Aside from the privacy concern argument being bogus (because, in theory, anyone could publish the exact same information – albeit after a long FOIA requesting process – after filing a FOIA), it also likely runs afoul of the FOIA and the Federal Records Act.

The Justice Department’s Peter Bryce recently argued in court filings, however, that the Agriculture Department had no obligation to post animal abuse data on the department website in advance of FOIA requests, noting that, “Perversely, plaintiffs seem to suggest that such routine, proactive posting of records should itself trigger a mandatory legal obligation…thereby making such proactive disclosures legally obligatory (and, according to plaintiffs, irrevocable) once the records are posted to the agency website.”

Bryce is misrepresenting the statute. The FOIA clearly states (5 U.S.C. 552(a)(2)) that agencies are required to identify records, “that because of the nature of their subject matter… have become or are likely to become the subject of subsequent requests for substantially the same records,” and make them available in electronic format – in other words, post them on their website. This is why, prior to the Trump administration, the Agriculture Department had been following the clear language of the law and posting the databases that were widely used by the public.

The strong language in the FOIA is reinforced by the Federal Records Act (44 USC 3102), which states that each federal agency must have a records management program that establishes “procedures for identifying records of general interest or use to the public that are appropriate for public disclosure, and for posting such records in a publicly accessible electronic format.”

The animal abuse data fits the FOIA and FRA requirements and should be proactively posted once more by the Agriculture Department.

United Airlines Audio Released

Judicial Watch, through the FOIA, has obtained audio recording from “the city of Chicago of emergency workers and Department of Aviation police officers communicating about a disturbance on United Flight 3411 at O’Hare International Airport on April 9, 2017.” The Washington Post recently posted it online. The airline and the Department of Aviation have faced questions and blistering criticism about their policies after video emerged of Dr. David Dao being forcibly and traumatically removed from a flight earlier this month.

Fannie, Freddie, and FOIA

H.R. 1694 seeks to subject Fannie Mae and Freddie Mac to the FOIA. The bill, introduced by Jason Chaffetz (R-Utah), would direct both organizations to accept and process FOIA requests, but “would only apply to the mortgage giants while they are under federal conservatorship, and the administration could be already looking at plans for GSE reform. The Mortgage Bankers Association recently released its roadmap to GSE reform that breaks down what it sees as the best option for reform.”

IRS Pays for Dark Web Scour

A FOIA request to the IRS – recently published on Motherboard – shows that the tax agency paid $65,000 to the intelligence firm Flashpoint, “a company focused on extracting intelligence from hard-to-reach areas of the internet inhabited by cybercriminals.” The IRS specifically paid for Flashpoint’s platform and API. The IRS isn’t the first to pay for Flashpoint’s services; a previous Motherboard report shows Immigration and Customs Enforcement paid $150,000 for its products. Motherboard’s Joseph Cox says these Flashpoint contracts “ highlight that an increasing number of agencies are paying so-called threat intelligence firms in exchange for information, and Flashpoint in particular.”

FOIA Post

The Justice Department’s Office of Information Policy (OIP) is seeking feedback and participants for the development of the National FOIA Portal – a project that will be built in collaboration with the General Service Administration’s (GSA) 18f. According to its website, “OIP and 18F will focus on user research and discovery of issues necessary to inform future development. If you’re interested in joining the effort and providing feedback throughout the process, please email us at National.FOIAPortal@usdoj.gov(link sends e-mail) by April 28, 2017.”

Newly Declassified FOIA Document Discusses 2016 Obama Order to Fight ISIS in Cyberspace

A FOIA request from the National Security Archive has won the release of the May 5, 2016, order to establish a joint task force – Joint Task Force Ares – to counter ISIS in cyberspace. Ares was assigned the mission of developing malware and other cyber-tools in order to escalate operations to damage and destroy ISIS networks, computers, and mobile phones. The document, released to the Archive by U.S. Strategic Command, sheds more light on the unit that was the subject of Washington Post reporting in July 2016.

This document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, April 26.

The New Chiquita Papers: Secret Testimony and Internal Records Identify Banana Executives who Bankrolled Terror in Colombia

Ten years ago, Chiquita Brands International became the first U.S.-based corporation convicted of violating a U.S. law against funding an international terrorist group—the paramilitary United Self-defense Forces of Colombia (AUC). But punishment for the crime was reserved only for the corporate entity, while the names of the individual company officials who engineered the payments have since remained hidden behind a wall of impunity.

As Colombian authorities now prepare to prosecute business executives for funding groups responsible for major atrocities during Colombia’s decades-old conflict, a new set of Chiquita Papers, made possible through the National Security Archive’s FOIA lawsuit, has for the first time made it possible to know the identities and understand the roles of the individual Chiquita executives who approved and oversaw years of payments to groups responsible for countless human rights violations in Colombia.

This posting features the first in a series of articles published jointly by the National Security Archive and Verdad Abierta highlighting new revelations from the Chiquita Papers, identifying the people behind the payments, and examining how the Papers can help to clarify lingering questions about the case.

CIA memo for the record describing a September 15, 1970, meeting between Agustin Edwards Eastman and CIA Director Richard Helms in Washington, D.C.

Agustin Edwards: A Declassified Obituary

Media mogul Agustin Edwards Eastman, who was widely regarded as the Rupert Murdoch of Chile, died on April 24, at age 89, leaving a legacy of close collaboration with Henry Kissinger and the CIA in instigating and supporting the September 11, 1973, military coup.  Edwards was the only Chilean—civilian or military—known to meet face-to-face with CIA Director Richard Helms in September 1970 in connection with plans to instigate regime change against Socialist leader Salvador Allende, who had just been elected president.

Declassified CIA and White House documents posted by the National Security Archive show conclusively what Edwards repeatedly denied – that he and his newspaper, El Mercurio, became a critical part of U.S. plans to foment a military coup against President Allende.

TBT – Bush Administration’s First Memo on al-Qaeda Declassified

This week’s #TBT pick is a posting on the first terrorism strategy paper of the Bush administration – a January 25, 2001 memo on al-Qaeda from counterterrorism coordinator Richard Clarke to National Security Adviser Condoleezza Rice. Clarke’s memo “urgently” requested a high-level National Security Council review on al-Qaeda and included two attachments: a declassified December 2000 “Strategy for Eliminating the Threat from the Jihadist Networks of al-Qida: Status and Prospects” and the September 1998 “Pol-Mil Plan for al-Qida,” the so-called Delenda Plan, which remains classified.

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DREAMer Files FOIA Suit for Info on His Deportation Same Day DHS Secretary Tells Critics to “Shut Up” and Assume Agency Follows the Law: FRINFORMSUM 4/20/2017

April 20, 2017

Deported DREAMer Files FOIA Suit for Info; Kelly Tells DHS Critics to “Shut Up” And Assume Agency Following Law

Juan Manuel Montes, 23, was brought to the United States from Mexico by his parents 14 years ago and is protected under the Deferred Action for Childhood Arrivals (DACA) program; he is also believed to be the first DREAMer deported by the Trump administration. Montes filed a FOIA lawsuit this week for information on his mid-February deportation from Calexico, Calif.; the suit is brought against U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services, both Department of Homeland Security components that failed to respond to his initial FOIA requests for information on his deportation.

Department of Homeland Security Secretary John Kelly told a crowd at George Washington University on April 18, the same day Montes filed suit, that critics of the department’s tactics should “shut up” and assume the agency is following the law.  The comment was not related to the Montes case. Kelly also said that “criticism of the agency’s work is often misguided and based on inaccurate reporting.”

Trumped Up Secrecy Charges

This is a White House lie,” said National Security Archive director Tom Blanton of the White House’s recent decision to no longer disclose the routine visitor logs maintained by the Secret Service and published online by the Obama administration since 2009, claiming national security and privacy risks. Blanton went on to counter the White House’s claims, “There is no national security risk to releasing the visitor logs; we have seven years of nearly 6 million Obama visitors that prove no problem. Privacy was protected there too. What’s really going on is the swamp suits Donald Trump just fine.”

Anticipating the Trump administration’s move, the National Security Archive and its senior analyst Kate Doyle joined with the Knight First Amendment Institute at Columbia University and CREW, the watchdog group that first sued Presidents George W. Bush and Obama for copies of the visitor logs, in a new FOIA lawsuit against the Department of Homeland Security, parent agency of the Secret Service, to open the Trump logs – including at Trump Tower and Mar-a-Lago.

Everything you need to know about the suit and the history of access to the White House visitor logs can be found here.

Iran FRUS Hidden

The State Department has indefinitely postponed the publication of its Foreign Relations of the United States (FRUS) volume on the 1953 Iran Coup, a coup in which the CIA participated and a long-delayed publication that had, in recent years, looked like it might finally come to fruition. (For a thorough treatment of the CIA’s role in the coup and the State Department’s 1989 iteration of the Iran FRUS that omitted any such involvement, sparking an outcry and 1992 legislation that required the FRUS be accurate and reliable, read this posting by the National Security Archive’s Iran expert, Malcolm Byrne.) The State Department Historical Advisory Committee (HAC) noted in its annual report that it was “severely disappointed” by the Department’s decision, which was based on a political environment it deemed “too sensitive.” Nate Jones reported in March, during HAC’s March 7 public session, that HAC and undersecretaries backing their position fought “until the final day” of the Obama administration arguing for the volume’s release, but were rebuffed “at the highest levels.”

Steve Aftergood notes that the State Department made this decision despite recent declassifications on US involvement in the coup – including by the CIA itself in 2013. This is likely one of the reasons that the HAC report, after noting several bright spots in the FRUS publications – like the first on-time FRUS publication in the last 20 years , concluded that “the declassification environment is discouraging.”

A first page of a classified DOD instruction that was one of many FOIA-ed because it was listed on the DOD’s Issuances page.

Classified Directives Listings Disappear from DOD and JCS Websites

FOIA requesters who relied on lists of classified directives published by both the Defense Department and the Joint Chiefs of Staff to know what documents to file FOIA requests for may now be out of luck. In a transparency backslide, both the DOD and JCS websites no longer publish lists of classified directives and instructions, making it impossible to know what to FOIA. The National Security Archive’s Jeff Richelson is one of many scholars who used these lists to file FOIA requests for historically significant documents. Check here for a sampling of first pages of classified directives that Dr. Richelson knew existed – and was then able to FOIA – because of their listing on the DOD Issuances page.

Microsoft Publishes First National Security Letter from FBI

Microsoft has released its biannual transparency report covering  the first half of 2016, for the first time publishing one of the national security letters it received – a surveillance order from the FBI seeking information on one of the company’s customers that are largely hidden by strict gag orders. The report also notes that the technology company received “at least a thousand surveillance requests” from the government during the first half of the year, which “was more than double what the company said it received under the Foreign Intelligence Surveillance Act (FISA) during the preceding six-month interval.”

OGIS Advisory Opinions Would Help Clarify Acceptable FOIA Practices

The National Security Archive’s FOIA project director, Nate Jones, submitted comments on the Office of Government Information Services’ (OGIS) reviews and reports in anticipation of OGIS’s public meeting this morning, April 20. Jones expresses the National Security Archive’s hope that the office will continue to expand its legal requirement to “identify procedures and methods for improving [FOIA] compliance” by issuing advisory opinion, which it has yet to do in its 9-year existence and would help clarify what are acceptable FOIA practices.

Today at the FOIA Advisory Committee meeting the committee members will be discussing the results of the National Security Archive and the Project on Government Oversight’s FOIA search survey, which found that much of the poor search situation FOIA shops find themselves in today is due to the fact that their agencies bought software that “does not play well” with FOIA.

Is ISCAP a Victim of Its Success?

The Archive’s Bill Burr asks in a recent blog if the Interagency Security Classification Appeals Panel (ISCAP) success rate for regularly overturns agency classification decisions may be diminishing its effectiveness – in the form of an ever-growing backlog that means it can take the panel years to process an MDR appeal. Burr notes, “It does not appear that ISCAP has been able to use its authority to create an effective feedback mechanism. Admittedly, the Executive Order’s language ‘shall consider’ does not give ISCAP much clout with the agencies and an effective feedback mechanism would require more demanding language, such as ‘must consider,’ or requiring the agencies to revise instructions and manuals in light of ISCAP decisions…But from long-standing patterns of denials at agencies such as the CIA and the Defense Department, it is hard to tell whether ISCAP decisions have had an impact. At some agencies, over-classification remains endemic.”

The solution remains elusive, but “Whatever happens, ISCAP and ISOO should make even greater efforts to ensure that ISCAP decisions have an impact across the bureaucracy. ”

Reps. Want Info on Rapid Spread of North Korea Cyber Attacks from Treasury

Representatives Robin Kelly and James Himes recently wrote Treasury Secretary Steven Mnuchin, in so doing providing additional information on the Lazarus group, a hacking operation linked to the North Korean regime that has targeted banks in 18 different countries. The group successfully stole $81 million from the Bangladeshi Central Bank’s account at the Federal Reserve Bank of New York last year. The Members of Congress note, “these high profile attacks are symptomatic of a shift in North Korean hacking strategy from destroying systems to directly acquiring funds…For rogue states like North Korea, we are concerned that these attacks will help fund missile tests and the development of nuclear weapons.” The lawmakers conclude their letter requesting a briefing from the Treasury Secretary on the department’s efforts to counter these threats.

This document is one of 11 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, April 19.

Iranian Prime Minister Mohammad Mosaddegh, overthrown in the 1953 coup.

TBT Pick – CIA Confirms Role in 1953 Iran Coup

This week’s TBT pick is chosen with the recent State Department FRUS decision in mind and is a 2013 posting on the CIA’s first confirmation of its role in the 1953 Iran coup. The posting features newly declassified CIA documents on the United States’ role in the controversial operation; “The explicit reference to the CIA’s role appears in a copy of an internal history, The Battle for Iran, dating from the mid-1970s.”

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OGIS Advisory Opinions Would Help Clarify Acceptable FOIA Practices

April 19, 2017

Office of Government Information Services Sunshine Week Program. David S. Ferriero, Archivist of the United States (left), and Dr. Carla Hayden, NARA Photo by Jess Deibert.

Below are the National Security Archive’s comments on the Office of Government Information Services’ (OGIS) reviews and reports, submitted in anticipation of OGIS’s public meeting, tomorrow, 4/20, at 9 in the U.S. National Archive’s McGowan Theater

Thank you for holding your annual meeting with the public and soliciting comments on OGIS’s reviews and reports, in accordance with the new requirements of the Freedom of Information Act.

OGIS has done good work in 2016 and early 2017, including leading its annual Sunshine Week Celebration, ushering in the provisions of the FOIA Improvement Act, facilitating the FOIA Advisory Committee,  publishing its blog, The FOIA Ombudsman, conducting five compliance reports, reviewing agency FOIA regulations updates, issuing government-wide FOIA recommendations, and authoring an illuminating Annual Report.

In the view of the National Security Archive, the OGIS report that had the largest tangible impact was its three-part Compliance Assessment on the use of “still interested letters” –letters used to close older FOIA cases if no response is received from the requester.  Authored at the request of a coalition of open government groups, the report found that that the “available data [on the use of ‘still interested letters’] does not capture requester frustration.”

Moreover, after the publication of this report, OGIS fulfilled its role as the bona fide Ombuds Office.  When requesters informed OGIS that some agencies were still sending improper “still interested letters,” OGIS went to these specific agencies and was ultimately able to correct their improper closing of requests.  This was emblematic of the actions of the independent “FOIA beat cop” that Congress intended when it created OGIS in 2007.

It is the National Security Archive’s hope that OGIS will continue to expand its legal requirement to “identify procedures and methods for improving [FOIA] compliance.”  Since its founding nine years ago, OGIS has not yet utilized its statutory ability to issue a single FOIA advisory opinion.  Despite the efforts of OGIS and others, government-wide FOIA compliance is clearly not at a satisfactory level.   Clear advisory opinions by the FOIA Ombuds Office would do well to delineate what are acceptable FOIA practices, and what are not to other government agencies.

Finally, The National Security Archive would like to underline the important and unique role that OGIS plays. The Freedom of Information Act is the crown jewel of America’s transparency repertoire; it is the only law that gives the public a chance to win the release of documents that their government may want to keep secret.  Other executive branch agencies have competing priorities and may ignore or violate FOIA to achieve the aims that they deem more important.  Fortunately, the public and agency FOIA officials have the Office of Government Information Services, whose only priority is ensuring that the law of the Freedom of Information Act is followed.  The National Security Archive is optimistic that OGIS will continue growing into the FOIA Ombuds Office that Congress envisioned it to be and will continue using its statutory authority to improve agency compliance with FOIA.