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Compliance is the Best Gift Agencies Can Give FOIA for its 50th Anniversary: FRINFORMSUM 5/26/2016

May 26, 2016

CommerceDept

Too many agencies are still under-performing on FOIA in the weeks leading up to the law’s 50th anniversary. For its part, the Commerce Department is refusing to release certain records under the FOIA, instead charging reporter David Yanofsky $173,775 for two databases because “it only gives that information to people and companies that pay for the privilege.” The databases are the only comprehensive records on who enters the US; one database is on anonymous immigration records and the other statistics about international air travelers. Yanofsky says “a representative for the International Trade Administration initially told him that the DOC bureau ‘did not want to release the records to [him] because it wanted to protect the revenue the data generated.’” Yanofksy correctly argues, however, that “Just because there may be a market for this information shouldn’t make it exempt from public disclosure.”

The National Institute of Health told FOIA professionals listening to its May 24 “All About Grants” podcast that FOIA requests must be “very specific” – a problematic misinterpretation of the statute’s actual requirement that the request be “reasonably described.” The NIH FOIA office would do well to revisit the Department of Justice’s Office of Information Policy procedural guidance, which clearly states ‘the fact that a FOIA request is very broad or “burdensome” in its magnitude does not, in and of itself, entitle an agency to deny that request on the basis that it does not “reasonably describe” the records sought. The key factor is the ability of an agency’s staff to reasonably ascertain exactly which records are being requested and then locate them.’

The State Department inspector general yesterday delivered a report to Congress rebuking Clinton’s use of personal email. The bottom line for all federal employees as Clinton seeks to wrap-up the Democratic nomination is that flouting the FOIA and federal records requirements is bad for future career goals. The IG findings echo those made by Nate Jones and I more than a year ago; namely that when Clinton used a personal email and server, there was a “law on the books at the time (the Federal Records Act), federal regulations on the books at the time (36 CFR 1263.22), and NARA guidance which the State Department received (NARA Bulletin 2011-03) that should have prevented Clinton’s actions.” The report also makes clear that Clinton, who was turned down for a National Security Agency Blackberry and did not want to carry more than one device, “worried that personal emails could be publicly released under the Freedom of Information Act.”

A FOIA request for the Attorney General’s written responses to questions from the House Judiciary Committee following a June 7, 2012, hearing shows that “A definitive accounting of the number of lawsuits in which the U.S. Government has invoked the state secrets privilege cannot be provided because some of those cases may be too sensitive to acknowledge or disclose.” The DOJ did note that the Attorney General had invoked state secrets privilege in six known cases between 2009 and 2013 – including Gen. Petraeus’s use of the privilege while head of CIA in an employee discrimination case, which is not widely considered a state secrets case.

Which fees can be charged by requester category if the government misses its deadline (and does not proclaim your request as "unusual.")

Which fees can be charged by requester category if the government misses its deadline (and does not proclaim your request as “unusual”)?

The D.C. Circuit Court of Appeals has ruled that students are entitled to the same FOIA fee considerations as teachers. In his ruling, Appeals Court Judge Brett Kavanaugh said, “It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.” For more on a thorough examination of FOIA fee categories and fee issues, see Nate Jones’s article on “Unnecessary Freedom of Information Act Fees.”

Timothy Foster used Georgia Records Act to uncover prosecution records showing racial bias in jury selection. AP Photo

Timothy Foster used Georgia Records Act to uncover prosecution records showing racial bias in jury selection. AP Photo

Timothy Foster, a Georgia man convicted of murder after a 1987 trial and sentenced to death, used the Georgia Open Records Act to obtain documents “showing that prosecutors were keeping track of which jurors were African-American and that they seemed to be trying to minimize the number of blacks on the jury.” The Supreme Court ruled 7-1 (Justice Clarence Thomas was the only dissenter) that prosecutors violated the Constitution in allowing racial considerations “taint” jury selection. SCOTUS’s ruling does not overturn the death sentence, but it compels the Georgia Supreme Court to revisit its ruling denying Foster relief. Politico’s Josh Gerstein notes that, “It is unclear how broad an impact Monday’s ruling will have, in part because state public records laws vary and most inmates seem unlikely to be able to obtain copies of prosecutors’ files. In addition, defense attorneys suspect that many prosecutors are careful not to make written notes that could later support a claim that a juror was struck on the basis of race.”

On Friday President Obama will visit Hiroshima and will speak on the US dropping an atomic bomb on the city at the end of World War II (he will not, however, be visiting Nagasaki). The National Security Archive’s collection “The Atomic Bomb and the End of World War II” — which has been updated three times and now houses nearly 100 declassified documents — addresses, among other issues, the Trinity Test, the first nuclear strikes and their impact, and President Eisenhower’s early misgivings about nuclear use. As the Nuclear Vault’s director William Burr says, the unmatched collection “can help readers to make up their own minds about long-standing controversies such as whether the first use of atomic weapons was justified, whether President Harry S. Truman had alternatives to atomic attacks for ending the war, and what the impact of the Soviet declaration of war on Japan was.”

Matthew Aid recently highlighted the release of two National Security Agency collections on World War II. The first is nine volumes on the history of AXIS SIGINT operations during WWII, and the second is more than 29,000 pages of “material related to the World War II-era Target Intelligence Committee (TICOM).” Thanks to Matthew for pointing out these great resources.

British Columbia has announced it will post every Freedom of Information request online – including the name of the requester and the substance of their request. The plan is causing some concern among privacy activists and journalists, who are wary that such a policy will cost them “scoops,” but the controversy overshadows the fact that BC has yet to post any actual released documents online. In the US this unofficially happens with FOIA logs, which are lists agencies maintain of all the FOIA requests they receive and are published online, and the US FOIA has no expectation of requester privacy. The National Security Archive strongly supports posting FOIA releases online – and 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).

Page from Anatoly S. Chernyaev Diary, January 3, 1976.

Page from Anatoly S. Chernyaev Diary, January 3, 1976.

The Anatoly S. Chernyaev diary for 1976 – published in English for the first time this week by the National Security Archive – provides, among other insights, an inside look at the Central Committee and close-ups of Brezhnev and the Soviet system. Read the 1976 diary, as well as previous volumes, here.

On Friday, May 27th the Archive’s Kate Doyle will chair a Latin American Studies Association “Presidential Session” on “Mexico After Ayotzinapa: A Conversation with the International Investigatory Panel.” The investigatory panel was appointed by the Inter-American Commission on Human Rights to investigate the Ayotzinapa student abductions and concluded there was a massive cover-up by the Mexican government. The LASA session will offer an opportunity to converse directly with two members of the Ayotzinapa panel, both with long trajectories in the field of human rights in Latin America. It will be held from 4:15 to 5:45 PM in the Rhinelander Gallery South. Please note that attendance is limited to LASA members attending the conference (although members of the press can attend for free if they present credentials).

kingofplanes

This week’s #tbt pick is chosen with the recent confirmation of the death of Taliban leader Akhtar Mohammad Mansour in a drone strike in mind. This week’s pick is a declassified 2002 State Department cable on terrorism financing that notes Mansour was Afghanistan’s former Minister of Civil Aviation and nicknamed the “King of Planes” for his control of all military flights. The cable is one of 17 declassified documents found in the National Security Archive’s “Taliban Biography” – which charts the structure and leadership of the group from 1996 through 2002.

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Happy FOIA-ing!

Soldiers Exposed to “Chemical Unknown” in Iraq not Getting Adequate FOIA Responses from DOD, and More: FRINFORMSUM 5/19/2016

May 19, 2016
The two-page 2003 Camp Taji Incident report -- released a dozen years after the dangerous exposure.

The two-page 2003 Camp Taji Incident report — released a dozen years after the dangerous exposure.

The Defense Department is telling soldiers that were exposed in 2003 to a “chemical unknown” in Taji, Iraq that it has no documents on the incident – after a decade of saying that documents on the event were classified.

C. J. Chivers of the The New York Times reported in May 2015 that, for over a decade, the US military denied FOIA requests on the chemicals soldiers were exposed to, resulting in chronic illnesses. The Army only released the two-page 2003 Camp Taji Incident report, written by the multinational Iraq Survey Group, after years of FOIA requests; the report found that the chemical soldiers came in contact with was a potentially fatal “carcinogen and poisonous chemical.” The Archive’s Director Tom Blanton told the Times in 2015 that, in addition to the secrecy trumping common sense, that “the outrage here is extraordinary.” Blanton noted, “Soldiers exposed to something really dangerous cannot find out what it was because ‘Sorry it’s classified’?” he said. “It’s creepy and it’s crazy.”

Now, according to reporting by Samantha Foster at the Topeka Capital-Journal, the Army is telling soldiers like Army Spc. Sparky Edwards and former Sgt. First Class Dennis Marcello that there are no documents on the chemical they were exposed to or the incident. Nate Jones, the Archive’s FOIA project director, notes that the DOD may be claiming to have no documents because they were possibly destroyed or misfiled during the war – or because the large, decentralized Defense Department genuinely doesn’t know where to look to find the records. Jones identifies this as a prime example of why FOIA requesters “must specify exactly where they want to search or risk the agency not going the extra mile” to find them, and that it is always a good idea to appeal a “no records” response.

According to Department of Justice statistics, last fiscal year an obscenely high 130,113 FOIA requests (16.9 percent of requests processed) were deemed to result in “no records” responses. As the Archive has learned, more often than not, appealing a “no records” response and explaining why you think the records exist and even suggesting which records (including the Washington Records Center –control f) the agency should search leads to more records being found.

A Shell oil drilling rig.

A Shell oil drilling rig.

The countdown to FOIA’s 50th anniversary this July 4th has begun. To celebrate, OpenTheGovernment.org is spear-heading a campaign that will highlight the importance of FOIA, “while promoting the passage of meaningful reform legislation that now has the potential to become law by the time the statute turns 50 in less than two months.” This week OTG is promoting FOIA success stories; featured successes include Interior Department FOIA releases showing that big oil is abandoning billions in Arctic drilling rights, and the National Security Archive’s Cyber Vault, which is filled with FOIA-obtained documents on US cyber policies and activities. Next week OTG will partner with MuckRock to highlight technical advances that can improve the FOIA.

The preservation of the Senate’s report on the CIA’s Torture Program is increasingly in doubt; the DC Circuit Court of Appeals recently affirmed the District Court’s ruling that the report “is a congressionally generated and controlled document that is not subject to disclosure under FOIA.” Days after the appeals court decision, news broke that the CIA Inspector General’s office “accidentally” destroyed its copy of the report. The recently revealed destruction allegedly took place last summer – months after the CIA’s IG, David Buckley, resigned. Before his resignation Buckley issued a report finding that five CIA officials improperly monitored Senate Intelligence Committee staff working on the Torture Report; while his report admonished the involved officials, the agency opted not to punish them. A CIA panel handpicked by Director John Brennan, “in what was widely seen as an embarrassing rebuke to Buckley,” went so far as to clear the officials of any wrongdoing, concluding that the officials had acted reasonably in the face of a potential security breach. The Obama administration has yet to nominate a permanent replacement.

Cause of Action is suing the Obama administration under the FOIA, accusing it of illegally delaying the FOIA process by forcing agencies to send records that may be contain White House equities to the West Wing for review. The policy stems from a 2009 memo instructing agencies to send “to the White House records sought in FOIA requests on a wide variety of topics, including some where the only obvious interest the White House would have in the files appears to be political in nature.” The Cause of Action suit seeks a judicial ruling that agency compliance with the 2009 memo “is unlawful to the extent that it delays compliance with FOIA deadlines.”

A FOIA request to the Department of Homeland Security shows that DHS views Twitter as a “constant provider [of intelligence] and is fairly reliable” – but it is redacting information from publicly available tweets in response to FOIA requests. DHS’s Intelligence and Analysis Division, after discovering tweets that advocated using the Baltimore police brutality protests as an incentive to advocate Islamic State goals and killing police, circulated a report on how to prevent the protests from turning into a “hotbed of potential terrorist activity.” Ironically, DHS redacted the public Twitter handle from the report – marked For Official Use Only – under FOIA’s law enforcement exemption, and “argued that some of the user’s other publicly available information is private and could not be disclosed.”

The Director of National Intelligence officially approved the use of publicly available social media postings in security clearance investigations, meaning that while investigators cannot “friend” someone on Facebook, for example, to gather information, they can use any information that is “public” on Facebook. Steve Aftergood notes, however, that “The utility of social media for background investigations remains to be demonstrated, particularly since any public posts that do not voluntarily advertise behavior that is at odds with official guidelines would not trigger investigative attention.”

The Defense Department has updated several doctrinal manuals. Steve Aftergood highlighted the updates in a recent blog, noting that the DOD has upgraded its manuals on the use of biometric data and the military and intelligence applications of that data, as well as its manual on the challenges of mountain warfare and cold weather operations. Yet another document featured in the post is an Air Force publication covering offensive and defensive space operations.

The ACLU’s FOIA lawsuit for the CIA’s rationale for targeting US citizens Anwar al-Awlaki and Samir Khan in a drone strike has also brought down Jason Leopold’s parallel – albeit more targeted – suit. The ACLU’s broader suit sought, in addition to the CIA’s “white paper” Leopold was requesting, about a dozen other documents. “Leopold said in an interview that his appeal stood a better chance, and his attorney said as much to the ACLU, which pursued its case anyway, and lost it in an unpublished decision that sank Leopold’s case Monday.”

General Torsten Rapp, Supreme Commander of the Swedish Armed Forces (1961-1970) made persistent efforts described by INR to secure funds for nuclear weapons research during the mid-1960s.

General Torsten Rapp, Supreme Commander of the Swedish Armed Forces (1961-1970) made persistent efforts described by INR to secure funds for nuclear weapons research during the mid-1960s.

Recently declassified State Department intelligence reports –posted by the National Security Archive – illuminate a range of important questions about nuclear weapons in world politics during the 1950s and 1960s, including whether new nuclear weapons states would raise the risks of nuclear proliferation. Highlights from the 28 documents published in the posting include: the first comprehensive U.S. government report on the problem of nuclear proliferation, prepared by INR in May 1957, covering possible developments in Europe, Latin America, South Asia, and East Asia; Swedish debates over whether to develop programs for nuclear weapons; and West German opposition during early 1967 to details of the proposed Nuclear Nonproliferation Treaty. The reports also address Indian nuclear capabilities, the Chinese nuclear missile program, French nuclear weapons developments, Soviet strategic decisions, the Soviets and nuclear nonproliferation negotiations, Japanese nuclear policy, nuclear forces in Western Europe, and European reactions to anti-ballistic missile programs.

An ex-CIA officer recently claimed to have tipped off South African authorities on Nelson Mandela’s location, leading to his 1962 arrest — and subsequent 27 year prison sentence. The admission reignites a fierce debate about the extent of the agency’s involvement in the arrest. The National Security Archive’s work on South Africa includes reporting on our blog concerning the United States’ South Africa policy at the time of Mandela’s arrest, and coverage of Ryan Shapiro’s FOIA lawsuit to reveal USG involvement in the arrest. Other highlights include our digital South Africa collection (South Africa: The Making of U.S. Policy, 1962–1989), which provides a contemporary record of changing US responses to historical events in South Africa from the time of Mandela’s arrest in 1962 through 1989.

Unnamed and undated, this U.S. intelligence document confirms that Pakistan is providing the Taliban with both financial and military assistance.

Unnamed and undated, this U.S. intelligence document confirms that Pakistan is providing the Taliban with both financial and military assistance.

This week’s #tbt pick comes from the Archive’s Taliban Project vault, and is a 2007 post addressing the question of whether or not Pakistan is “The Taliban’s Godfather”? The 35 documents in this posting — released under the FOIA – detail US concern over Pakistan’s relationship with the Taliban during the seven-year period leading up to 9/11. The documents, first published by the Archive in 2007 days after Pakistan’s president Pervez Musharraf acknowledged “Afghan militants are supported from Pakistan soil,” clearly illustrate that the Taliban was directly funded, armed and advised by Islamabad itself. As Barbara Elias notes, “As to Pakistan’s end-game in supporting the Taliban, several documents suggest that in the interest of its own security, Pakistan would try to moderate some of the Taliban’s more extreme policies.”

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Happy FOIA-ing!

FOIA Ombudsman’s Departure Worrisome, Archivist Will Not Call Torture Report a Federal Record, and More: FRINFORMSUM 5/12/2016

May 12, 2016
Freedom of Information Act (FOIA) Advisory Committee. From left to right: James Holzer, Mark Zaid, Ginger McCall (forner member), Brent Evitt, Larry Gottesman, Melanie Pustay, Nate Jones, David Ferriero, Lee White, Sean Moulton, Marty Michalosky, Jim Hogan, David Pritzker, Clay Johnson.

Freedom of Information Act (FOIA) Advisory Committee. From left to right: James Holzer, Mark Zaid, Ginger McCall (forner member), Brent Evitt, Larry Gottesman, Melanie Pustay, Nate Jones, David Ferriero, Lee White, Sean Moulton, Marty Michalosky, Jim Hogan, David Pritzker, Clay Johnson.

The head of the Office of Government Information Services (OGIS), Jim Holzer, is stepping down after less than a year on the job – and only two months after telling attendees of the Newseum’s National Freedom of Information Day celebration that OGIS was “in its best position yet to act as a change agent in FOIA, thanks to [its] robust mediation and compliance programs.” Holzer has led the small federal FOIA ombuds in mediating requester/agency disputes and monitoring agency FOIA compliance since August 2015. The sudden departure is worrisome, in no small part because it took nine months to confirm that Holzer would replace his predecessor, Miriam Nisbet. If, as it appears will happen, the key FOIA compliance position remains vacant when President Obama leaves office, it will be another significant blight on his administration’s transparency record.

OGIS is tasked with the large – and sometimes unenviable – job of improving the FOIA process across the federal government, and its staff of eight people (not including the director and a currently vacant position on the mediation team) is woefully understaffed. It is also hamstrung by bureaucratic requirements forcing OGIS to send proposed recommendations for policy changes through the intra- and inter-agency review process –allowing agencies that would be subject to OGIS’s recommended policy changes to review them before OGIS can go forward. As Miriam Nisbet testified before the House Oversight and Government Reform Committee in February 2015, “If you do want recommendations, reports and testimony that have not had to be reviewed, changed and approved by the very agencies that might be affected, then you should change the statute. Such a change also would accord with the long-established ombudsman model that is followed in the US and in other countries, independence being one of the criteria.”

Both FOIA reform bills in the House and the Senate, however, would grant OGIS more independence by giving it the ability to communicate directly with Congress and issue advisory opinions in mediation. Holzer’s departure begs the question of whether he was skeptical of the potential success of FOIA reform, or if the language in the bills – even if they are successful – does not go far enough. If the latter is true, it raises the troubling question of whether or not OGIS advocated strongly enough for its own independence with the Senate Judiciary Committee and the House Oversight and Government Reform Committee – both groups that would likely have taken requests from OGIS for more autonomy seriously.

Holzer will be returning to the Department of Homeland Security’s FOIA office, which receives the largest number of FOIA requests annually and whose staff will be statutorily required to listen to his good FOIA guidance, unlike agencies that currently can choose to disregard OGIS’s opinions.

Cover page of the executive summary of the Senate report on the CIA's torture program. The fate of the full report remains in danger.

Cover page of the executive summary of the Senate report on the CIA’s torture program. The fate of the full report remains in danger.

The Archivist of the United States, David Ferriero, denied a formal request from the National Security Archive and others to call the Senate Intelligence Committee’s report on the CIA torture program what it is – a federal record. The denial came a week after The Constitution Project’s Katherine Hawkins sent Ferriero a letter, which was signed by the Archive and 30 other groups, requesting that he do precisely the opposite. Weeks before, Democratic Sens. Patrick Leahy of Vermont and Dianne Feinstein of California sent a similar letter to the Archivist, citing NARA’s responsibility “to advise other parts of the United States government of their legal duty to preserve documents like the Senate Report under the Federal Records Act, the Presidential Records Act, and other statutes.”

Ferriero was “unmoved,” saying that he would not declare the report a federal record because doing so would interfere with an ongoing Freedom of Information Act case brought by the ACLU.  The Archivist appears to be acting on behalf of the DOJ, which earlier insisted that Ferriero make no determination on the report while the FOIA suit plays out in court – despite his statutory authority to do so.

This unwillingness to stand up to the DOJ, which insists on defending bad agency FOIA stances as a matter of routine, endangers the public’s ability to ever read the report. As I have argued before, “it looks as though the NARA is content to abdicate its responsibility to preserve and maintain federal records and its statutory independence for the sake of placating the DOJ and allow the report to slip into obscurity.”

(It’s worth noting that not everyone believes this is a threat to the ultimate preservation of the report; Steve Aftergood, for example, says that he would be astonished if the report “were not preserved for posterity one way or another, and eventually published… If it became possible to erase it from the historical record in some kind of Stalinesque act of suppression, then we would all have bigger problems to worry about.”)

Senator Feinstein initiated the torture report after learning that Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program, authorized the destruction of 92 video recordings of suspected Al-Qaeda leader Zain Abidin Mohammed Husain Abu Zubaydah being waterboarded 83 times in one month at a black site prison in 2005. It is a sad irony that at the same time the report’s preservation remains unsecured, that evidence in ongoing Guantanamo 9/11 trials is being destroyed.

Defense lawyers for alleged 9/11 mastermind Khalid Sheik Mohammed have submitted court filings accusing the federal judge overseeing the death penalty case and prosecuting attorneys of secretly destroying evidence that would be “favorable” to Mohammed and other defendants. Specifically, defense lawyers are “asking for the judge overseeing the case, Col. James Pohl of the Army, and the prosecution team, led by Brig. Gen. Mark S. Martins, to be recused from further involvement, and for the case to be shut down.” The classified nature of the evidence involved prevents the defense from explaining what the evidence was, but media outlets indicate it may center on the CIA’s “black site” prisons, “which were reportedly in Thailand, Poland, Romania, Lithuania and Afghanistan, and at a secret site at the Guantánamo base.” Pohl issued a public order in late 2013 granting the defense’s request to preserve evidence of overseas detention facilities; defense lawyers learned in February of this year, however, that months after Pohl’s 2013 order, “prosecutors had obtained from Colonel Pohl a secret order that reversed his previous decision. By the time they found out, the government had already destroyed the evidence, giving them no opportunity to challenge the move.”

The Government also inadvertently emailed classified information to Guantanamo detainee defense lawyers during the discovery process in February, a mistake caused in part because the exhibits “had not been marked as such at the time the Government turned them over.” Politico’s Josh Gerstein reports that the classified material made “its way onto computers used by defense lawyers, prosecutors, and the military judge, according to a recently-released court filing.” The mistake was exposed in a court submission from defense lawyers that complained of the excessive secrecy in the case, limiting the defense’s options.

Vice News’s Jason Leopold recently won the release of a February 2012 ten-page Defense Department IG report through the FOIA that shows that the DOD had no policies in place that “specifically addressed how detainees will be treated once transferred to another country.” Two years after the IG report, the DOD did adopt policies “barring the transfer of detainees to foreign countries if US authorities determined ‘that it is more likely than not that the detainee would be subjected to torture.’” The 2012 IG report also disclosed for the first time the number of detainees held in Afghanistan (802) and Iraq (259) between August 2010 and August 2011.

One of the FOIA-released photos shows the president being "consoled by Lt. Col. Cindy Wright of the White House Military Office aboard Air Force One. After leaving Louisiana, the president was flown to Offutt Air Force Base in Nebraska before he headed back to Washington D.C."

One of the FOIA-released photos shows the president being “consoled by Lt. Col. Cindy Wright of the White House Military Office aboard Air Force One. After leaving Louisiana, the president was flown to Offutt Air Force Base in Nebraska before he headed back to Washington D.C.”

Photographs taken by President George W. Bush’s personal photographer on 9/11 – released thanks to a FOIA request filed by Colette Neirouz Hanna and Frontline with the George W. Bush Presidential Library – show Bush’s response to the attacks. The batch of photographs is the third released to Hanna and her team; the previous two photo sets were released by NARA. “One batch, released by the National Archives in July 2015, contained more than 350 behind-the-scenes images of 9/11 by Vice President Dick Cheney’s personal photographer. A set of 2,664 images released one month earlier provided a rare glimpse of Cheney’s tenure in office.”

frontline

There’s no rule against nuclear weapons in space provided they don’t enter into an earth orbit or explode. This fact is found in the “Space Law” section of an unclassified 1999 DOD General Counsel assessment on international legal issues — obtained through the FOIA and recently posted to the National Security Archive’s Cyber Vault. In discussing the Outer Space Treaty (OST), the assessment summarizes that the OST “permits placing in orbit weapons other than nuclear weapons and other weapons of mass destruction. Also, the treaty contains no prohibition against nuclear weapons transiting outer space, as long as they do not enter into an earth orbit and they do not explode in outer space.”

The National Security Agency promised it would work towards its goal of “owning the net” in its Presidential Transition 2009. In addition to the eyebrow-raising passage on “owning the net” (PDF page 69), the document – also recently posted to the National Security Archive’s Cyber Vault — includes sections on discovering vulnerabilities in information systems (PDF pages 38-39) and protecting privacy rights (PDF pages 48-51).

The Archive’s Cyber Vault is updated every Wednesday.

American-Nuclear-War-Plan-1956-screenshot-600x364

Alex Wellerstein, the creator of NUKEMAP, recently captured the results of Future of Life Institute’s interactive map of the nuclear targets listed for potential destruction in the Strategic Air Command’s nuclear weapons requirements study for 1959, which was released to the National Security Archive through the Mandatory Declassification Review process. Wellerstein ran a series of studies on the data, concluding that, in addition to the declassification of the list being remarkable, the “1956 target list is pretty nuts, especially given the high-yield characteristics of the US nuclear stockpile in 1956. This strikes me as going a bit beyond mere deterrence, the consequence of letting military planners have just a little bit too much freedom in determining what absolutely had to have a nuclear weapon placed on it.”

The Office of the Director of National Intelligence recently posted ten documents requested under the FOIA to its Tumblr, IC on the Record. Kudos to ODNI for continuing to proactively post FOIA-requested records for all to read. One of the documents posted is the Federal Intelligence Coordination Office Phonebook 2013 and 2014. IC orientation briefing, “Unlocking the Secrets: How to Use the IC;” another is the 2011 National Intelligence Council Annual Report to Congress on the Safety and Security of Russian Nuclear Facilities and Military Forces.

The CIA's declassified map of Groom Lake/Area 51.

The CIA’s declassified map of Groom Lake/Area 51.

Hillary Clinton said that if elected president she would, barring threats to national security, make files on the Nevada Air Force base – Area 51 – and unexplained aerial phenomenon (UAP) public. The position may reflect a sign that she’s learned a transparency lesson in the wake of her email scandal; she is the only candidate to release years’ worth of tax returns, and Ben Geman recently wrote in the National Journal that Clinton’s “vulnerability to charges of excessive secrecy could spill over into federal policy by providing momentum to open-government advocates pushing for reforms.” The Archive’s Nate Jones concurred, saying Clinton’s “transparency record is so poor that she can’t afford not to establish strong pro-FOIA, pro-openness policies.”

Clinton’s stance may also be political savvy, since opening up Area 51 and UAP files would make headlines, mobilize an impassioned group of voters, and distract from said email scandal.

The promise may also reflect the special interest in the subject by her campaign chairman, John Podesta,  who famously called for the declassification of all documents on aliens. Podesta was behind many of the Clinton administration’s important declassification decisions when he was Chief of Staff, including playing a role in E.O. 12958 that requires the declassification of most government documents over 25 years old. Unfortunately for many, Podesta tweeted that his “biggest failure of 2014: Once again not securing the #disclosure of the UFO files.”

This week’s #tbt pick is chosen with Clinton’s recent promise in mind, and is the Archive’s “Area 51 File,” a collection of declassified documents on the Nevada base including the first official acknowledgement of Area 51, which is contained in a CIA history of the U-2 spy plane.

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Happy FOIA-ing!

 

Interactive Map of SAC Nuke List Targets, Bipartisan and Bicameral Approach to Fixing FOIA, and More: FRINFORMSUM 5/5/2016

May 5, 2016
nukemap

Potsdam’s fate were it targeted according to the SAC list.

 

The full map.

The full map.

MIT’s Future of Life Institute has built a remarkable interactive map of the nuclear targets listed for potential destruction in the Strategic Air Command’s nuclear weapons requirements study for 1959, which was released to the National Security Archive thanks to the Mandatory Declassification Review process. The map, created by Professor Max Tegmark and his partners at NukeMap, allows users to “detonate” any of the 1,100 nuclear targets from the SAC list to “see how large an area would be destroyed by the bomb of your choice, as well as how many people could be killed.” For example, selecting Vilnius, Lithuania and clicking “detonate” shows that an attack described in the SAC study would kill an estimated 19,180 people and injure 160,930 more. “Detonating” the Potsdam, Germany target shows that an attack there would kill an estimated 78,830 and injure 231,110. Pyongyang? 489,310 estimated fatalities and 1,186,870 injuries. If you have similar ideas of ways to map or crowdsource the data and documents obtained by the National Security Archive, drop us a line!

In an encouraging example of bipartisan, bicameral work to strengthen the FOIA, members of the House Oversight and Government Reform Committee, the House Judiciary Committee, and the Senate Judiciary Committee sent the US comptroller general “a letter requesting the General Accountability Office (GAO) conduct a comprehensive review of the federal government’s compliance with the Freedom of Information Act.” The letter seeks reports on seven key FOIA topics, including a catalog of the number of exemptions described under Exemption 3 and the use of such exemptions by each agency, and audits of agencies on compliance with, and implementation of, the FOIA’s requirements.

The bipartisan, bicameral move comes as the House weighs adopting the Senate’s FOIA reform bill, which is likely FOIA reform’s best chance for passage at this late point in the legislative session.

A FOIA lawsuit brought by MIT’s Ryan Shapiro shows that agricultural lobbying groups, including the United Egg Producers, the National Cattlemen’s Beef Association and the National Pork Producers Council, are promoting a controversial rider to FY 2017’s Agriculture Appropriations bill, whose reporting language (guidance that does not have statutory force) would exempt the lobbying groups’ communications with the USDA’s research and promotional boards under the FOIA. The lobbyists argued that the exemption of these communications from FOIA was justified on the grounds that the USDA boards “are funded solely with producer dollars, and therefore are not agencies of the Federal government or subject to the Freedom of Information Act (Foia).” This characterization of the USDA boards has already been disproved by the Supreme Court, which has ruled that since food producers’ contribution to the boards’ funding is mandatory, “that they constitute government speech.” The bill was approved by the House Appropriations Committee but has not yet passed.

The move to hide communications between food producers and the USDA comes a year after a FOIA request filed by Shapiro revealed that the USDA boards colluded with the egg industry to halt the rise of a Silicon Valley egg-replacement startup, and adds another layer to the complicated relationship between USDA regulators and food producers. Shapiro says, “Now that some of their blatantly improper dealings have been exposed via Foia, instead of cleaning up their acts, these boards are attempting to exempt themselves from Foia altogether.”

The FOIA cutout in the House appropriations bill is not supported by the National Farmers Union, among others. The NFU correctly says, “To prohibit the use of Freedom of Information Act (FOIA) requests with Research and Promotion boards would suggest that we, as producers, have something to hide. That is a troubling message in the areas of research and promotion, and is a particularly bad message to consumers about their food.”

Senators Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa) recently thwarted another attack on FOIA from the agriculture sector after language was inserted into the Commodity Futures Trading Commission reauthorization bill, which would have exempted information under FOIA’s Exemption 3, but was removed during its markup. It’s unclear why food producers feel such a need to hide their dealings from FOIA, but it’s likely this isn’t the last time we will see such tactics.

Director of National Intelligence General Counsel Robert S. Litt.

Director of National Intelligence General Counsel Robert S. Litt.

2012 testimony by the Office of the Director of National Intelligence’s General Counsel, Robert Litt, before a closed Senate Intelligence Committee hearing indicates that the Obama administration “sought administrative penalties for leaks — rather than criminal ones — with equal or greater vigor.” The effectiveness of the stance is questionable, as Litt’s testimony preceded Edward Snowden’s leaks by a year, and the total number of individuals sanctioned administratively was not disclosed. The revelation comes thanks to a FOIA request and will likely be another black mark on the administration’s quest to be the most transparent ever.

The Office of Government Information Services has released Part Two of its examination of agencies’ use of “still interested” letters, finding, among other things, that “Of the 46,019 requests the FOIA programs we reviewed processed in FY 2014, about 5.5 percent (2,535 requests) were closed using a method that might be related to a still interested letter.” OGIS examined seven agencies’s FOIA programs for its assessment, and noted in their findings “that the FOIA programs reported variations in how requests closed using still interested letters are reported and that the programs did not have written policies regarding how the letters should be used.” This report, like Part One, does not examine the legality of this practice, as nothing in the FOIA itself allows an agency to close a request if the agency does not receive a response from a “still interested” letter.

The FBI ignored its own rules impersonating an AP journalist in 2007, and then deemed the rule-breaking reasonable when it came to light, thanks to a FOIA lawsuit brought by AP and Reporter’s Committee for Freedom of the Press. The bizarre story began in 2007 when the FBI created a fake story on bomb threats made at a Seattle-area high school, attributed it to the AP, and then sent it in a private MySpace message to the student suspected of making the threats against the school. “By clicking on the link, the suspect unwittingly downloaded a piece of malware, a computer bug that enabled agents to identify his Internet protocol address.” The Electronic Frontier Foundation (EFF) obtained hundreds of pages of documents on the story through the FOIA, and the AP and RCFP sued under the FOIA. Documents obtained from the suit include details on the “sensitive circumstances” that must be met for an undercover agent to impersonate a member of the news media. The lawsuit also spurred the release of documents from the FBI’s Cyber Division that concluded after the 2007 ruse became public that “the FBI’s failure to observe its own guidelines was not unreasonable.”

The FBI is not the only law enforcement agency impersonating people on social media in controversial ways to further its investigations. In 2014 a Drug Enforcement Agency (DEA) agent impersonated a young woman on Facebook, posted racy photos of her and pictures of her underage son and niece on the social media site, all as part of a drug investigation.

One DEA agent impersonated a young woman on Facebook, posting these photos of underage children as part of an investigation.

One DEA agent impersonated a young woman on Facebook, posting these photos of underage children as part of an investigation.

The FBI’s social media guidance for employees (presumably not for the people its agents are impersonating, however) was released thanks to FOIA, and are “ham-fisted but smart.” The guidance does not address Instagram, Snapchat, or Tumblr. The overarching principle for the platforms that are mentioned – like Twitter, Facebook, Myspace, YouTube, and LinkedIn – is to not speak about the FBI, and not to discuss the bureau’s “weaknesses, vulnerabilities, or loopholes.” Perhaps the most eyebrow-raising quote from the guidance: “Social networking and media are potentially attractive to those who want to revive representative democracy, to those who promote participative approaches, or to both.”

The CIA marked the five-year anniversary of the raid that killed Osama bin Laden last Sunday with a deeply bizarre social marketing move – live-tweeting the events of five years ago as though they were currently happening. The agency’s Twitter account, which has been repeatedly called tone-deaf, “is run by a woman named Carolyn Reams, who is the agency’s social media manager and who is referred to around the agency as ‘the social Khaleesi’ — a reference to the ‘mother of dragons’ from the popular ‘Game of Thrones’ book and television series.” The move may, however, make it more difficult for the CIA to issue “Glomar” responses to FOIA requests on the Abbottabad raid, which it has done continually despite providing Hollywood filmmakers unparalleled access to information about the raid.

The National Security Archive joined 30 other groups in urging the National Archives to ensure the preservation of the Senate Intelligence Committee’s report on the CIA’s torture program by calling it what it is – a federal record. The Archive has repeatedly urged the Archivist of the US to use his clear statutory authority to label the report a federal record, noting that the most important thing is to preserve this record for history and not let it be destroyed, even if it can’t be declassified anytime soon.

From United States v. Oliver L. North, Office of the Independent Counsel (OIC) Papers, National Archives & Records Administration, College Park, Maryland.

From United States v. Oliver L. North, Office of the Independent Counsel (OIC) Papers, National Archives & Records Administration, College Park, Maryland.

29 years ago today Congress began investigating the Iran-Contra scandal (here’s a video of the Archive’s Deputy Director and Iran Project Director Malcolm Byrne discussing the scandal and Reagan’s legacy). With this historic date in mind, our #tbt pick this week is the Archive’s “Oliver North File” – which contains Mr. North’s diary entries, noting multiple reports of drug smuggling among the contras, and his White House emails recounting his efforts to spring a Honduran general who could “spill the beans” on the secret contra war from prison, even though the Justice Department termed the Honduran a “narcoterrorist” for his involvement in cocaine smuggling and an assassination plot.

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Happy FOIA-ing!

 

Exemption 5 FOIA Reform Would Not Have Chilling Effect on Agency Deliberations, MDR Fees Should Be Comparable to FOIA Fees, and More: FRINFORMSUM 4/28/2016

April 28, 2016
House Oversight chair Chaffetz and his Committe's B5 language would not allow OLC memos to be withheld, among other documents. Brett Carlsen/Associated Press

House Oversight chair Chaffetz and his Committe’s B5 language would not allow OLC memos to be withheld, among other documents. Brett Carlsen/Associated Press

A recent Congressional Research Service (CRS) report provides a helpful side-by-side comparison of the FOIA reform bills currently in the House and the Senate (the National Security Archive’s analysis of both bills can be found here, here, and here). In comparing the bills’ treatment of Exemption 5, the exemption that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public, and is applied with such frequency that it is often called the “withhold it because you want to” exemption, the report notes that both bills would prohibit applying the exemption to documents 25 years or older.

However, the report misses the mark on the House language on Exemption 5,  reiterating a common – and inaccurate – argument, that House language placing additional limits on Exemption 5 would have a chilling effect on agency deliberations, and fails to identify that the language authored by Rep. Jason Chaffetz (R-Utah), Chairman of the House Oversight and Government Reform Committee, and his colleagues, would ensure that “records that embody the working law, effective policy, or the final decision of the agency” (such as Office of Legal Council memos) cannot be withheld.

While the House’s language on Exemption 5 is stronger than the Senate’s, at this late point in the legislative session FOIA reform’s best chance for passage is for the House to adopt the Senate’s bill and ensure that necessary fixes to Exemption 5 are codified. This would still prevent agencies from making the most spurious of Exemption 5 claims in the future, like the DOE’s use of Exemption 5 to withhold a 1978 letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the Comprehensive Test Ban Treaty (CTBT) in full – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject – on the grounds that releasing any part of the document could “confuse the public about the Government’s later policy decisions.”

confusion

It would also stop the CIA and the Department of Justice from using Exemption 5 to successfully conceal a volume of the CIA history on the Bay of Pigs, saying its release could “confuse the public”.  Amazingly enough they did so in Court when the Archive sued over the ridiculous secrecy – and they won.  And then won again after the National Security Archive’s appeal was denied in the DC Court of Appeals. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge in a meaningful, bipartisan, and bicameral way. The National Security Archive would commit, of course, to working with Rep. Chaffetz and others to continue to strengthen FOIA and B5 reform in the future, should the House adopt the Senate bill this session.

The Court punted to the Congress and Congress took up the challenge.

The Court punted to the Congress and Congress took up the challenge.

The Office of the Director of National Intelligence, in response to comments submitted by the National Security Archive, OpenTheGovernment.org, and others, has issued a revised rule amending excessive fee provisions that would have priced out Mandatory Declassification Review requesters. ODNI’s initial plan could have charged requesters up to $72 per hour to review MDR requests, even if no information was found or if all of the information that was found must be withheld, and was out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures. As OTG notes, “ODNI agreed with the recommendations it received, and indicated that the proposal would be replaced with fee provisions comparable to those in ODNI’s FOIA program.”

In response to ODNI’s misstep – and an earlier, identical misstep by the CIA – a mark-up to the Intelligence Authorization Act of 2016 includes language codifying that agencies’ MDR fees must be comparable to their FOIA fees, and that agencies may waive or reduce any MDR processing fees, just as with FOIA.

The Office of Government Information Services has released Part One of its examination of agencies’ use of “still interested” letters, finding, among other things, that “using still interested letters to reduce a backlog is an ineffective strategy.” The full report, available here, analyzes data from FOIA Annual Reports across 17 fiscal years (FY 1998 – FY 2014) to draw lessons from the controversial letters – which agencies send to requesters, often after years of delay, to inquire if the requester still wants their request processed. They frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. OGIS importantly notes that the data gathered from the FOIA Annual Reports “does not capture requester frustration about the use of still interested letters. Ironically, the requesters most likely to be annoyed by correspondence of this type—those who wish for their requests to remain open, and respond by the agency’s deadline—will  never show up in data about the number of requests closed using still interested letters.”

This report does not, however, examine the legality of this practice, as nothing in the FOIA itself allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted.

220px-AngletnThe CIA is playing a game of hide-and-seek with documents on famed CIA mole-hunter James Angleton that were – until recently – publicly available at Georgetown University’s Lauinger Library. In a recent article for The Intercept, Jefferson Morley, who is currently writing a biography on Angleton and his mole hunt that destroyed the careers of dozens of innocent people, detailed how the CIA caught wind of his intentions to view the library’s material, recalled the decades-old documents from the library to review them for “security material,” and then proceeded to claim that the records couldn’t be released under FOIA because the library is still in the process of sending the documents. Georgetown spokesperson John Kenchelian agreed with the CIA, saying that “the CIA has not taken possession of the documents, they are still in Georgetown’s possession,” going on to say “The CIA will be reviewing the documents at a yet to be determined time and date for potentially classified material.”

Records released thanks to a FOIA request show that FBI officials instructed agents not to reveal tech secrets to federal prosecutors out of fear the lawyers might one day work as defense attorneys, offering a timely look at the lengths to which the FBI goes to guard its technology. The revelation raises red flags for privacy advocates, who question the extent to which judicial oversight can be effective in light of such practices, and Justice Department lawyers, who are consulted extensively in sensitive cases. Former US Attorney Rachel Paulose says, “The fact that somebody may at some point go over to the other side is not a legitimate basis to withhold relevant information.”

The Defense Department recently issued a directive instructing agencies to pay equal attention to declassifying national security information as they do to classification efforts. Steve Aftergood notes that the directive is commendable, if not aspirational, saying that it is unclear what the DOD means by equal attention, arguing that it does not mean equal resources or personnel. Yet Aftergood concludes that “in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.”

John F. Kennedy was a member of Congress when he first met Prime Minister David Ben-Gurion in 1951. In this photograph taken at Ben-Gurion’s home, Franklin D. Roosevelt, Jr., then a member of Congress from New York, sat between them. (Image from Geopolitiek in Perspectief)

John F. Kennedy was a member of Congress when he first met Prime Minister David Ben-Gurion in 1951. In this photograph taken at Ben-Gurion’s home, Franklin D. Roosevelt, Jr., then a member of Congress from New York, sat between them. (Image from Geopolitiek in Perspectief)

President John F. Kennedy worried that Israel’s nuclear program was a potentially serious proliferation risk and insisted that Israel permit periodic inspections to mitigate the danger, according to declassified documents published recently by the National Security Archive, Nuclear Proliferation International History Project, and the James Martin Center for Nonproliferation Studies. Kennedy pressured the government of Prime Minister David Ben-Gurion to prevent a military nuclear program, particularly after stage-managed tours of the Dimona facility for U.S. government scientists in 1961 and 1962 raised suspicions within U.S. intelligence that Israel might be concealing its underlying nuclear aims.  Kennedy’s long-run objective, documents show, was to broaden and institutionalize inspections of Dimona by the International Atomic Energy Agency.

This week’s #tbt pick is chosen with this week’s 30th anniversary of the Chernobyl disaster in mind, and is a collection of original Russian-language sources from the Russian Archives on the disaster that are newly available on the National Security Archive’s Russian page. Among the documents are: Yuri Andropov’s report from 1979 on deficiencies in the original construction of the Chernobyl power station; the initial 1986 report about the explosion, which stated that there was no need to evacuate nearby residents; Central Committee decisions on emergency measures and containing the radioactive contamination; Shevardnadze’s review of foreign reactions to the accident; and excerpts from the Politburo discussions related to Chernobyl.

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Happy FOIA-ing!

22 Years Later, US Still Classifying “Bombshell” Plan to Pull Peacekeepers Out Before Rwanda Genocide

April 26, 2016
Left: Redacted State Department "Bombshell" document, Right: Excerpts from cables reporting on the "bombshell" from the Czech Republic, New Zealand, United Kingdom, and the United Nations' Kofi Annan.

Left: Redacted State Department “bombshell” document, Right: Excerpts from cables reporting on the “bombshell” from the Czech Republic, New Zealand, United Kingdom, and the United Nations’ Kofi Annan.

The tinderbox of Rwanda’s ethnic tensions ignited in April 1994 and mass violence engulfed the country in one of the swiftest campaigns of genocide in history. The National Security Archive’s Genocide Documentation Project’s collection of declassified documents on Rwanda numbers in the thousands, and includes an April 15, 1994, State Department cable on the U.S.’s decision to pull United Nations forces out of Rwanda; a fact still withheld by State Department redactors even though the information has been released by the Czech Republic, New Zealand, United Kingdom, and the United Nations and published on the Archive’s website.

On April 20, 1994, the Advisor on African Affairs to French President Mitterrand, Bruno Delaye, stated, “There is nothing to say.” According to UNHCR, 100,000 Rwandans would be dead by the end of April and 800,000 would be displaced. The following day, the International Committee of the Red Cross (ICRC) reported that the fighting that started in central Rwanda at the beginning of the month had spread to the rest of the country. Tens of thousands were dead and hundreds of thousands had fled their homes.

However, a plan by the U.S. and the UN to reduce and eventually withdraw the United Nations Assistance Mission for Rwanda (UNAMIR) was already well underway. On April 15, 1994, the U.S. Mission to the UN dropped a “bombshell” on the Security Council, arguing for the complete termination of UNAMIR and the pullout of all peacekeepers in Rwanda. 

Reviewers redacted the historic “bombshell” from a State Department cable, however, even though the fact that the U.S. called for the withdrawal of UNAMIR troops, was previously released to the National Security Archive by the governments of the Czech Republic, New Zealand, and the United Kingdom, and the UN’s Kofi Annan in response to FOIA requests. The information had even been published on the Archive’s website and in the critical oral history conference briefing book, “International Decision-Making in the Age of Genocide: Rwanda 1990-1994,” in June 2014.

Susan Rice Handwritten Notes

Declassified notes from a April 21, 1994, Peacekeeping Core Group meeting, written by Susan Rice, detailing discussions surrounding the withdrawal of UN peacekeeping forces from Rwanda.

On April 21, 1994, the same day of the ICRC report, Susan Rice, then the deputy to Richard Clarke of the National Security Council, attended a meeting of the Peacekeeping Core Group (PCG). Her handwritten notes stated, “[Maurice] Barril  wants to withdraw 900 tonight,” followed by concerns about setting a “bad precedent, potentially.”1 She then begs the question, “How do we protect people if forces are withdrawn?”

Rice’s prescient notes, among hundreds of pages of other pertinent documents, were declassified in 2015 after the Archive sent a Mandatory Declassification Review (MDR) request to the Clinton Presidential Library, and can be found in the Clinton Digital Library.

The same day of the PCG meeting, the UN Security Council adopted Resolution 912, which cut the size of UNAMIR forces down to 270 people. An April 26, 1994, declassified State Department cable described the policy as, “retain[ing] a small group, including the Force Commander and SRSG, with necessary staff, an infantry company to provide security, and some military observers.”

An April 25, 1994, confidential National Security Council memo from Donald Steinberg, the Council’s Senior Director for African Affairs, reads, “Stories throughout the weekend seem to suggest that we are sitting on our hands while the blood-letting in Rwanda rages. It is true that our capacity to end the killing is painfully limited, but we are undertaking a series of measures.”

Steinberg Memo

An April 25, 1994, confidential memo to the National Security Council addresses the perception that the U.S. was “sitting on [their] hands” during the genocide.

22 years later, it is clear that the international community’s policies in Rwanda were a catastrophe, with an estimated 800,000 to 1 million slaughtered over the course of 100 days. The National Security Archive’s research found that these very decisions contributed to the failure to protect millions of Rwandan civilians from death, rape, and displacement.

In a September 2001 interview, Susan Rice said:

There was such a huge disconnect between the logic of each of the decisions we took along the way during the genocide and the moral consequences of the decisions taken collectively. I swore to myself that if I ever faced such a crisis again, I would come down on the side of dramatic action, going down in flames if that was required.

The Genocide Project’s conference at The Hague in June 2014,  in partnership with the United States Holocaust Memorial Museum, assessed these policy decisions with key actors and added to the historical record of the Rwandan Genocide, a record that should not, 22 years later, continue to be hampered by needless secrecy of historically important documents like the “bombshell” cable.

Image 5

UN Peacekeeping Troops in Rwanda circa September 1994. Photo from personal collection of Prudence Bushnell.

The Genocide Documentation Project, launched in January 2013 in partnership with the United States Holocaust Memorial Museum, explores the failures of the international community to prevent or effectively respond to past cases of genocide. Through detailed case studies, the project’s research seeks to inform international policies regarding the prevention of and response to genocide and mass atrocity. By examining the role of the international community in past incidents of genocidal violence, these case studies help shape the views of a new generation of policymakers both within the United States and around the world. 


1. Major General Maurice Barril was the military advisor to UN Secretary General Boutros Boutros-Ghali and in charge of the Military Division of the Department of Peacekeeping Operations during the genocide.

Vote to Update OMB’s Three-Decade-Old FOIA Fee Guidelines, “28 Pages” Not the Only 9/11 Documents Still Senselessly Withheld, and More: FRINFORMSUM 4/21/2016

April 21, 2016
Group shot of the Advisory Committee, which voted unanimously to update OMBs outdated guidance, April 19, 2016.

Group shot of the Advisory Committee, which voted unanimously to update OMB’s outdated fee guidance, April 19, 2016.

The FOIA Federal Advisory Committee voted unanimously to update the Office of Management and Budget’s three-decade-old FOIA fee guidelines during its most recent meeting on Tuesday, April 19. Toby McIntosh of FreedomInfo.org notes that the unanimous vote was achieved only after an acceptable compromise on language was agreed upon “after some members, mainly from government agencies, voiced last-minute concerns about language” on when agencies have discretion to not charge FOIA fees. The last-minute changes cropped up, briefly calling into question whether the vote to bring the fee guidance into the 21st century would be successful, even though the agreed upon changes could have very likely been communicated and agreed upon before the meeting.  Still, the live amendment process added a flash of drama, and fortunately unanimous consensus recommendations were reached. The final recommendations are available here.

The advisory committee also received a report from the Subcommittee on FOIA Oversight and Accountability that concludes that the government’s FOIA oversight methods “are not sufficient.” The Archive’s Nate Jones, a member of the Oversight Subcommittee, told the Advisory Committee, “Reporting is important but it can’t be the be all and end all of FOIA compliance.” Jones argued that a FOIA watchdog – with the independence and authority to enforce compliance – is needed to compel lagging agencies to improve their FOIA performance.

George Will recently added his voice to the chorus calling for the declassification of the 28 pages that detail Saudi involvement in the 9/11 attacks that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. Will calls on President Obama to release the 28 pages upon return from his trip to Saudi Arabia in a recent op-ed, noting the release “would be mild punishment for complicity in 2,977 murders.”  Will doesn’t stop there; he argues that Obama should “further curtail senseless secrecy by countermanding the CIA’s refusal to release its official history of the 1961 Bay of Pigs debacle.”

bayopigsThumb

The Archive couldn’t agree more. The National Security Archive filed a FOIA lawsuit for the full release of the CIA’s history of the invasion, only to have the D.C. Circuit uphold the CIA’s cover-up by ruling that a 30-year-old volume of the CIA’s draft “official history” could be withheld from the public under the “deliberative process” privilege. This obfuscation was upheld even though four of the five volumes of the invasion have previously been released with no harm either to national security or any government deliberation. Both the House and Senate FOIA bills would fix this problem by adding a 25-year sunset to the “deliberative process” exemption, but both bills appear stalled despite unanimous support.

The infamous “28 pages” are not the only documents related to 9/11 still being senselessly withheld. 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.  Exemption 5 is the “deliberative process” exemption and potentially covers any “inter-agency or intra-agency memorandums or letters” and, according to DOJ guidance, “hold[s] the greatest potential for discretionary disclosures.” The Archive is of course appealing this misapplication of the b5 exemption, increasingly used to prevent embarrassment or hide errors and failures –, and will keep fighting for the release of these historically significant documents.

Senators Chuck Grassley (R-Iowa)and Patrick Leahy (D-Vt.) recently scored a FOIA win during the reauthorization of the Commodity Futures Trading Commission (CFTC), preventing “the CFTC’s FOIA exemptions from going beyond what is necessary.” The senators introduced an amendment, which was accepted, that ensured that data compiled by the commission remains subject to FOIA. Grassley said of the amendment’s success that “FOIA already strikes a proper balance between the public’s right to know and the government’s need to protect certain information.  But special interests wanted to give the CFTC additional, nearly carte blanche authority to fully exempt certain information from public accountability through FOIA.  That was unacceptable to Senator Leahy and me.”

FOIA records obtained the nonpartisan advocacy group, Protect Our Defenders, show that top brass at the Pentagon deliberately misled Congress on the military’s handling of sexual assault cases to blunt support for a Senate bill that would transfer certain authorities to independent prosecutors. Military officials used “vague or inaccurate language” to portray the bill –which would grant independent prosecutors the authority to determine whether or not charges should be brought, rather than unit commands – as unnecessary, or even detrimental. To do so, officials cherry-picked 93 cases – later disproved – of civilian prosecutors refusing to handle certain sexual assault cases to claim that less sexual assault cases would be brought to trial. Protect Our Defender is calling for additional Congressional hearings to address “this latest deception,” and the group’s full analysis of the documents is available here.

The Bureau of Prisons (BOP) told the ACLU that it had no records in response to the ACLU’s FOIA request for records on BOG officials’ visit to a CIA detention site in Afghanistan in 2002. The BOP made this outrageous claim even though “A U.S. Senate report revealed the Bureau of Prisons said the CIA site was ‘not inhumane,’ adding that the visiting team was ‘wowed’ by the level of sensory deprivation the CIA achieved against suspects.” The ACLU is filing a FOIA lawsuit to compel the release of documents that, in all likelihood, do exist.

Microsoft is suing the government over the nondisclosure provisions contained in national security letters – letters which are overwhelmingly sent by the FBI and demand business records from a wide array of organizations for national security investigations. The gag orders are often indefinite, meaning companies like Microsoft “are forever barred from speaking, and our customers are forever barred from hearing that the government has accessed their email or other content.” The National Security Archive’s review of these powerful –and largely unchecked– letters, helps contextualize both the FBI’s concerns altering one of its key investigative tools, and the serious civil rights concerns that tool elicits.

Screen-Shot-2016-04-17-at-4.12.38-PM-640x524

Sean Gallagher highlighted a fascinating document from the Archive’s “Cyber Vault” in a recent Ars Technica posting. The document is a 1970 Defense Science Board Task Force on Computer Security Security Controls for Computer Systems Report, and attempts to examine “the risks associated with the rapid growth of ‘multi-access, resource-sharing computer systems,’” and offers a list of conclusions and recommendations that Gallagher says many have failed to heed. Gallagher notes the document is “a classic text of computer security,” going on to say that “as much as technology has changed in the 46 years that have passed, the [document] would still hold up pretty well today with a few notable edits.”

This week’s #tbt pick is chosen with news that the Mexican army is withholding “key evidence from international investigators in the case of 43 trainee teachers abducted and apparently massacred in late 2014, hampering their efforts to reach the truth,” in mind. This week’s #tbt pick is a 2015 Archive posting on the prelude to the massacre, which showed – thanks to a 2011 declassified cable from the US Embassy in Mexico obtained by the Archive – that “U.S. Ambassador to Mexico Earl Anthony Wayne said that ‘evidence of heavy-handed police tactics’ was ‘strong and disconcerting’ after a 2011 clash with student protesters from Ayotzinapa normal school left two youths and a gas station employee dead and several others wounded.”

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Happy FOIA-ing!

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