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House Committee Plans September FOIA Vote, New OGIS Head, and Much More: FRINFORMSUM 7/23/2015

July 23, 2015
Chaffetz, left, told Pustay, right, that she lives in "la-la-land" if she thinks FOIA is working.

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

The House Committee on Government Oversight and Reform chair, Rep. Jason Chaffetz (R-Utah), who earlier this year told the Department of Justice’s Office of Information Policy (OIP) Director Melanie Pustay that she must be living in “la-la-land” if she thought FOIA was being properly implemented, informed the National Journal that he plans to have a committee vote on a strengthened FOIA bill in September. According to the Journal, the committee is looking to tighten the bipartisan bill, H.R. 653, by identifying “ways to make agencies face consequences for failing to comply with FOIA requests, and reduce the number of exemptions that agencies can use to justify withholding information.” The bill currently amends the FOIA in two key ways: it codifies both that agencies cannot use FOIA’s “withhold it because you want to” Exemption 5 to withhold information that is older than 25 years, and states that “records that embody the working law, effective policy, or the final decision of the agency” cannot be withheld under that same exemption.

Jim Holzer, the chief FOIA watchdog at the Department of Homeland Security, will take over as the head of the federal FOIA ombuds office, the Office of Government Information Services (OGIS) – and not a moment too soon. Prior to the announcement of Holzer’s appointment, which was made at this week’s Federal FOIA Advisory Committee meeting, the position for leading the small federal office, which is responsible for providing FOIA mediation and compliance services for the entire federal government, had been left vacant for six months. The Archive looks forward to continuing to work with the FOIA ombuds office under Holzer’s direction.

FreedomInfo.org’s Toby McIntosh recently posted an excellent article examining one of the most controversial aspects of the recently announced “Release-to-One: Release-to-All” pilot project, namely whether or not “first requesters should get a priority look at the documents released before they are made available to the public.” Interviewing OIP director Pustay vie email, McIntosh reports that OIP has no position on whether or not to provide first-requesters with a lead time on FOIA releases, noting it is something OIP will be examining throughout the six-month pilot program. McIntosh notes that although sub-components of seven agencies are participating in the program, “Those in the pilot differ in what they post and how they do it,” begging broader questions about not only first-requester priority, but also how results of the study will be extrapolated government-wide.

"Long time since Katrina. LOL."

“Long time since (Hurricane) Katrina. LOL.”

Anticipating protests in response to the announcement of whether or not Ferguson, MO police officer Darren Wilson would be indicted in the shooting death of African American teenager Michael Brown last year, the Department of Homeland Security (DHS) worked on a surveillance plan to conduct of the protests. Vice’s Jason Leopold reports – thanks to over 700 heavily redacted pages he obtained in response to a FOIA request – that DHS attempted to preemptively stymie any protest surveillance documents’ release because of concerns they would be requested under the FOIA. Specifically, “an employee with DHS’s National Protection and Programs Directorate distributed an email on November 11, 2014 reminding personnel to mark all electronic communications ‘for official use only’ because of ‘recent events and FOIA requests.’” FOIA’d documents also show that the agency investigated claims that Muslims had “co-opted” the protests based on “intelligence” from Fox News reporting “on how the Council of American and Islamic Relations (CAIR) was trying to raise awareness about the 2009 shooting death of Luqman Ameen Abdullah, an imam at a Detroit mosque.” One document also shows that DHS officers were looking forward to reuniting with old colleagues in Ferguson and St. Louis, with one writing, “Looks like we are working together again,” and another, “Long time since [Hurricane] Katrina. LOL.”

President Obama’s national security adviser, Susan Rice, allegedly presented Secretary of Defense Ashton Carter with a “memo stating that he would have 30 days to make decisions on newly proposed transfers” of Guantanamo detainees at a cabinet-level “principals committee” meeting last week. Carter’s delay in transferring the detainees since taking office is prompting anxiety among the Obama administration, which wants to close the facility before the president leaves office in 18 months. Mr. Carter did not commit himself to the administration’s 30-day timeline.

US District Court Judge Richard Leon berated the State Department and its Justice Department lawyers over DOS’ handling of a 4-year-old Associated Press FOIA request last week. AP received no response from the State Department on its request, which sought records about former Secretary of State Hillary Clinton’s schedules and staffers, including Clinton Deputy Chief of Staff Huma Abedin, now vice chairman of Clinton’s presidential campaign, until filing suit. Judge Leon harangued the government’s representatives, saying “The State Department, for reasons known only to itself … has been, to say the least, recalcitrant in responding.” Leon also told DOJ lawyers that they were responding to questions about why AP’s request was being delayed because of State’s handling of Jason Leopold’s much more recent request for Clinton’s emails with “convoluted gobbledygook.”

Wired reported recently that a staggering 89% of all wiretaps are fueled by drug cases, an increase of 27% in the last 25 years, and a strong indicator of how the War on Drugs shapes government surveillance. Reporter Andy Greenberg notes “that constant swell in drug-focused wiretaps may help to explain the general increase in all American wiretaps. In total, the count of US state and federal wiretaps has jumped from 768 in 1989 to more than four times that number today. But take out those drug cases, and the collection of wiretaps of all other kinds increased only 29 percent in those 25 years, from 297 in the year 1989 to just 384 last year.” Greenberg reports that one of the reasons drug-related wiretaps far outpace others is the money they can generate: “a wiretap costs an average of $39,485 in 2014 according to the latest report—and unlike other types of crimes, those seizures mean that drug cases can pay for themselves.”

Police photos of Julius and Ethel Rosenberg (Source: Exhibits from the Julius and Ethel Rosenberg Case File, 03/13/1951 - 03/27/1951)

Police photos of Julius and Ethel Rosenberg (Source: Exhibits from the Julius and Ethel Rosenberg Case File, 03/13/1951 – 03/27/1951)

The biggest revelations from the newly-released Rosenberg grand jury testimony shows that Ethel’s brother, David Greenglass, lied about his sister’s involvement to conceal the minor role played by his wife, Ruth. The testimony was obtained thanks to a court order in case brought by the National Security Archive and a coalition of Historical and Archival Associations. The most important passages from Greenglass’ testimony are on page 12, in which he says, “My sister has never spoken to me about this subject,” and on page 30, where he states, “I never spoke to my sister about this at all.” Ruth Greenglass’ testimony, released in 2008, undermined the core charge against Ethel, “struck the keys, blow by blow, against her own country in the interest of the Soviets.” Of the Rosenberg case Brad Snyder says, “This historical import of the David Greenglass’s grand jury testimony is bigger than the guilt or innocence of Julius and Ethel Rosenberg. It is about how the American criminal justice system treats even the most despised and politically unpopular defendants. It is about the role of the Supreme Court in policing the behavior of government prosecutors.”

Cover page of US appeals court ruling in Chiquita reverse FOIA case, July 17, 2015.

Cover page of US appeals court ruling in Chiquita reverse FOIA case,
July 17, 2015.

In a huge win for transparency and corporate accountability, Chiquita Brands International lost its bid to hide Colombia terror documents from the public (again) in a suit brought by the National Security Archive. Last week a federal appeals court in Washington, D.C., ruled that the US Securities and Exchange Commission (SEC) should release to the Archive 9,257 pages of records produced by Chiquita to the SEC as part of an investigation of the company’s illegal payments to a Colombian terrorist organization, the United Self-Defense Forces of Colombia (AUC), a group responsible for egregious acts of violence during Colombia’s civil war. In April 2011, the Archive published some 5,500 pages of Chiquita’s records released by the Department of Justice in response to similar FOIA requests. Those records revealed that Chiquita benefitted from its transactions with both AUC “paramilitary” groups and insurgents from the FARC and ELN guerrilla groups. The records call into question the Justice Department’s determination, spelled out in the 2007 plea deal, that there was no evidence of a quid pro quo with the illegal groups.

The Archive’s latest posting commemorates the 40th anniversary of the Church Committee investigation of CIA abuses, and details how that probe foreshadowed post-9/11 executive/congressional battles. Documents posted this week show, among other things, that: the White House of President Gerald R. Ford, spearheaded by deputy assistant to the president Richard Cheney, quickly seized control of the administration’s response to the congressional investigations; lists of records to which the Church Committee requested access for its investigation were reviewed in detail and Mr. Cheney ultimately decided whether to provide them in each case; and CIA accommodation measures were explicitly designed to keep Church committee investigators away from its most important records.

This week’s #tbt document pick is chosen with the recent Chiquita ruling in mind, and is one of the most startling documents released to the Archive in April 2011. This week’s #tbt pick is a January 4, 1994, Chiquita memo indicating that leftist guerrillas provided security at some of Chiquita’s plantations. The general manager of Chiquita operations in Turbó told company attorneys that guerrillas were “used to supply security personnel at the various farms.”

Chiquita

GM says Guerilla Groups used for security.

Happy FOIA-ing!

USAF Accidentally Launched Rocket into Mexico’s Mapimi Desert 45 Years Ago

July 13, 2015
Memorandum for the President.

Memorandum for the President.

By Michael Barclay

On July 11, 1970, the United States Air Force launched an ATHENA V-123-D rocket from Green River Launch Complex in Utah. While its intended target was the White Sands Missile Range in New Mexico, it impacted “180-200 miles south of the Mexican border,” according to a recently released memorandum sent from the desk of Henry Kissinger, then serving as National Security Advisor to President Nixon. The document cites “abnormal re-entry into the atmosphere” as the reason why the rocket landed in the Mapimi desert, a “sparsely populated” area in the Northeast corner of the state of Durango. While the three-paragraph memorandum may seem as though the mishap was nothing to be concerned about (noting the Mexican Government’s “willingness to grant clearance and assist in any search efforts”), the cleanup effort was long, costly, and included the construction of a road through the Mapimi desert to excavate hundreds of tons of soil from the impact site. The scale of the cleanup was due to the fact that the rocket was carrying two small vials of cobalt 57, an isotope used to enhance radioactive fallout with the intention of contaminating large areas of land (commonly referred to as a “salted bomb”).

Crash site.

Crash site.

According to a 1971 report from the Office of Air Force History, the ATHENA rocket tests at Green River were part of the Advanced Ballistic Reentry System (ABRES) program. The program “developed and tested promising reentry vehicles and penetration aid devices for use on present and future ballistic missile systems.” While the Atlas test flights under the same program “gathered valuable reentry vehicle performance data” that contributed to the development of multiple independently targetable reentry vehicles (MIRV), the Athena launch program was “suspended in July 1968 after three consecutive flight failures.” But the report notes that after its reactivation in November of the same year, the program yielded “thirteen successful Athena launches” that “carried a variety of payloads” and aided the development of “reentry vehicles [that] altered their ballistic paths upon command.“ But despite these advances, “ABRES program funding dropped from $147.7 million to $105 million” between 1966 and 1969, which forced the Air Force “to postpone development of the improved Athena H booster.” Since MIRV research and development was the program’s main concern at this time, “test range operations—deeply cut in fiscal year 1970…would have to be slashed even more than before.” Combined with the Athena program’s flight record prior to the 1970 test range budget cuts, the ATHENA rocket misfire that occurred at Green River on July 11th of the same year doesn’t seem like as much of an unexpected anomaly as Kissinger’s memorandum to President Nixon makes it sound.

“Report on Peacetime Launch From ICBM Operational Sites”

“Report on Peacetime Launch From ICBM Operational Sites”

In fact, there seems to be a good amount of evidence pointing to the fact that the ramifications of a misfired rocket impacting foreign soil were not only considered prior to the construction of Green River Launch Complex, but were taken seriously enough to halt launch plans at other facilities for fear of triggering an international incident. On August 11, 1963, a memorandum entitled “Report on Peacetime Launch From ICBM Operational Sites” was sent to the Joint Chiefs of Staff suggesting that despite “the limited record of past performance of [the Air Force’s] liquid–fueled missiles…we do not have high confidence that such tests would be completely successful.” The report goes on to note that “public acceptance of overflight by test shots in the vicinity of our national ranges has been encouraging and the public is willing to accept some risk if such tests appear necessary in the national interest.”

Several months later, an Air Force General responded to claims of political and safety concerns by noting that “system reliability can no longer be considered a limiting factor” to rigorous ICBM testing. But within a matter of days, another Air Force memorandum reiterated that the “concern of possible international and political implications” resulting from overflight “remain[ed] as the major constraint against launching Minuteman missiles from existing operational sites at [the] time.” While this may seem like an unnecessary concern if the Air Force were to take proper precautions in the construction of its launch sites and testing ranges, the description of an overflight make the author’s fears seem well warranted. In reference to the launching of Minuteman missiles from Malstrom Air Force Base in Montana, he notes that “examination of the planned flight profile indicated first stage impact just short of the Canadian border; second stage in the Hudson Bay; with re-entry vehicle impact in the North Atlantic area off the coast of Greenland. Since a malfunction similar to the failure of thrust termination control experienced on the first Minuteman Operational Test launch could result in overflight of Canada and Western Europe with flight termination in Africa, the political aspect [is] of much greater concern.” Clearly, this was a scenario worth being concerned about, which is why these tests were eventually fired from Vandenberg Air Force Base in Lompoc, California.

Soviet Capabilities for Strategic Attack.

Soviet Capabilities for Strategic Attack.

At the very least, these internal Air Force communications beg the question of why so many ICBM tests were conducted with insufficient funding after their safety and political concerns were made so abundantly clear. A National Intelligence Estimate of the USSR’s nuclear arsenal, signed by former CIA Director Richard Helms on October 20, 1966, sheds a fair bit of light on why military strategists were so anxious to begin ICBM testing despite multiple experts advising that overflight was a real and legitimate concern. Their urgency was fueled by protracted concerns of the Soviet Union matching the United States’ nuclear force. The 1966 CIA report voiced concerns that not only would the USSR “have reached approximate numerical parity with the currently scheduled US force of ground-based ICBM launchers” by 1971, but that this quantitative parity would allow the Soviets to develop a nuclear arsenal that would be qualitatively superior.1 In this frame of mind, the deployment of “multiple, independently-guided re-entry vehicles (MIRV) and other suborbital or fractional-orbital long-range ICBMs” that boast “a considerable improvement…in re-entry technology” seemed not only inevitable, but swiftly approaching.2 This explanation may seem like somewhat of an oversimplification, but the 131 ATHENA rocket test flights launched from Green River between February 4, 1964, and September 17, 1971, stand as an undeniable testament to the lengths that American policy makers and military strategists were willing to go to maintain a nuclear advantage over the Soviet Union. The fact that these launches happened despite multiple test failures, a dwindling budget, and the looming possibility of an international political incident  is further confirmation of the extent to which nuclear force parity had become central to American foreign policy by the beginning of the 1970’s.

While it could easily be written off as a military and scientific blunder, the ATHENA V-123-D launch on July 11, 1970, has a very rich back story that has a lot to teach us about the ways in which genuine diplomatic, security, and logisitical concerns can be swept under the rug in the face of myopic policymaking. In this sense, it seems almost fitting that the area of the Mapimi desert that was impacted by the rocket has become much less a symbol of the Cold War arms race than it is a magnet for paranormal and extraterrestrial folklore. Commonly referred to as the Mapimi Silent Zone, locals have latched on to the legends of radio silence and alien sightings as a means to boost tourism in an area that would have had none otherwise. While it is referenced in several news articles and Wikipedia entries, the ATHENA misfire that occurred on July 1970 rarely outshines the reports of UFO’s and paranormal activity that it provides a scandalous backstory for.


1. Soviet Capabilities for Strategic Attack, Top Secret, National Intelligence Estimate, Excised Copy, NIE 11-8-66, October 20, 1966. p. 37.

2. Ibid. pp. 37, 40.

Open Gov Groups Still Interested in OGIS Reviewing Agency Practice of Sending “Still Interested?” Letters; DHS’s Mobile FOIA App Misses the Mark, and Much More: FRINFORMSUM 7/9/2015

July 9, 2015
OIP releases new guidance for agency still-interested inquiries.

OIP releases new guidance for agency still-interested inquiries.

This week the Department of Justice’s Office of Information Policy (OIP), tasked with ensuring government-wide FOIA compliance, issued new guidance on agencies issuance of “still interested?” letters. These are letters agencies send requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. The OIP guidance is, on its face, pretty good: it requires agencies to limit the instances in which they send such letters; it requires that agencies provide requesters a reasonable amount of time to respond to the query (30 days at a minimum); and it mandates that requesters should not be disadvantaged if they miss the letter’s deadline by only a “reasonable” amount.

The overall premise behind the “still interested” letters, however, is fundamentally flawed. There is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted. While the “still interested” letters can be useful, any guidance that condones an agency closing a FOIA request without legal authority provided by the FOIA is misguided and should be revised.

"As you are aware, OGIS’s review team determined that it will take a close look at this matter. "

“As you are aware, OGIS’s review team determined that it will take a close look at this matter. “

The silence from the Office of Government Information and Services (OGIS), the FOIA ombuds office, on this issue is of additional concern. In response to several Archive requests for OGIS assistance concerning agencies’ practice of issuing such letters (and in some instance only allowing a requester 10 days to respond before closing the request), OGIS informed our office in November 2014 that “On October 30, 2014, a group of organizations including the National Security Archive contacted OGIS about agencies’ practice of sending still interested letters, citing EPA, among other agencies. As you are aware, OGIS’s review team determined that it will take a close look at this matter.” Eight months later OGIS has yet to take any action on this issue, and OIP has taken advantage of OGIS’s silence and issued guidance condoning the legality of a practice that has no legal basis in the FOIA.

The Department of Homeland Security (DHS) launched an app to submit FOIA requests this week – perhaps a little too quickly. According to Huffington Post Technology and Science editor, Alex Howard, “Instead of launching a better way for the public to make and track requests or teaming up with the Department of Justice to fund work on a universal FOIA request feature at the government’s openFOIA website, the federal agency that receives and responds to the largest number of FOIA requests in the country actually made the experience of submitting one worse.” Among the app’s sticking points are: the microscopic font; the keyboard obscures the text of the FOIA request being drafted; and the fact that the app doesn’t retain a user’s contact information. Additionally, “The app’s permissions, at least on the Android store, state that it requires access to your approximate location.” This is according to Reporters Committee for Freedom of the Press’ Adam Marshall, who went on to say, “There is absolutely zero reason for the DHS to have access to the location of my phone, and I’m not going to install an app from the federal government that allows for that functionality. FOIA is designed to ensure that the public knows what the government is up to, not the other way around.”

DHS FOIA funds would have been much better used to make its current FOIA website responsive to mobile browsers rather than creating a clunky, hard to use, unneeded app.

Last week the Senate Intelligence Committee approved legislation that would require social media sites to report content posted by suspected terrorists, although it doesn’t require the companies to remove the content. While the committee claims the bill, which doesn’t require companies to monitor their sites if they do not already do so, is a “pretty low burden,” it’s received criticism for being technically difficult – in part because “Social media sites generally do not monitor their sites for terrorism or any other content except child porn” – and vague in its wording. The legislation is contained in the 2016 intelligence authorization act and has not yet been voted on by the Senate.

A hack of the for-hire hacking company Hacking Team has revealed that the FBI, the DEA, and the Army have all bought the Italian company’s controversial software that allows “users to take remote control of suspects’ computers, recording their calls, emails, keystrokes and even activating their cameras.” The Intercept reported this week that emails, financial reports, and other Hacking Team documents show that the FBI’s Remote Operations Unit has been using the software since 2011, and that the CIA, the Pentagon’s Criminal Investigative Service, the New York Police Department, and Immigration and Customs Enforcement were all communicating with Hacking Team about potentially purchasing their software. Hacking Team reported that it had lost control of the controversial software in wake of the hack, saying “it believed anyone could now deploy its RCS software ‘against any target of their choice.’”

Multiple Somali and African Union officials have confirmed the existence of a secretive US drone base operating out of Kismayo, Somalia. These officials allege that, “a team of special operators from the Joint Special Operations Command, the elite U.S. military organization famous for killing Osama bin Laden, flies drones and carries out other counterterrorism activities” from the Somali base. The US has yet to acknowledge operating a drone base on Somali soil. The CIA’s “substantial presence” in Mogadishu was also recently reported by The Nation, which detailed the agency’s training of a clandestine Somali commando force called “Shield.”

Hammarskjold in 1953.

Hammarskjold in 1953.

A United Nations (UN) panel has found that new evidence concerning the September 1961 death of UN Secretary General Dag Hammarskjold, whose plane was shot down over what is now Zambia, warrants further investigation. A 2013 UN inquiry uncovered “persuasive evidence that the aircraft was subjected to some form of attack or threat as it circled to land.” As a result, in 2014 Sweden, Hammarskjold’s home country, appealed to all UN member states to disclose unpublished documents on Hammarskjold’s death. This appeal was likely “a reference aimed largely at securing the declassification of American and British files, particularly intercepts thought to have been made at the time by the National Security Agency.” The NSA continues to withhold two of three 50-year-old documents requested by the Archive regarding the incident on national security grounds. Despite the new evidence and calls for further investigation into the crash, the NSA holds that “files classified as top secret from the National Security Agency would not be released,” a sentiment echoed by the British.

David E. Hoffman’s “The Billion Dollar Spy: A True Story of Cold War Espionage and Betrayal,” published this week, relies on 944 declassified CIA cables to help tell the story of Adolf Tolkachev, once the CIA’s most valued and successful spy in the USSR. Tolkachev, an engineer and specialist in airborne radar, provided the CIA with “documents and drawings had unlocked the secrets of Soviet radars and weapons research years into the future. He had smuggled circuit boards and blueprints out of his military laboratory.” Tolkachev spied for the CIA from 1979 through 1985, before ultimately being compromised, arrested, and executed. A selection of the declassified CIA cables on Tolkachev are available at davidehoffman.com.

Declassified documents recently published by the National Security Archive shed new light on the 2012 creation of the DOD’s Defense Clandestine Service, the expansion of Army and Air Force HUMINT operations since 2002, the work of the Iraq Survey Group, and much more. Read the whole story on the evolution of the Pentagon’s spy units through the Obama administration here.

Operation PBSUCCESS

Operation PBSUCCESS

This week’s #tbt document pick is chosen with the possible re-opening of the Dag Hammarskjold investigation in mind. This week’s pick is a 1994 CIA History Staff document by Nicholas Cullather entitled, “Operation PBSUCCESS: The United States and Guatemala, 1952- 1954,” and is a narrative history of the CIA’s role in planning, organizing and executing the coup that toppled President Jacobo Arbenz Guzmán on June 27, 1954. One portion of the document (page 85) describes international condemnation of the plan, noting that UN Secretary General Dag Hammarskjold charged that “the United States was completely at variance with the (UN) Charter.”

Happy FOIA-ing!

 

FACA Surveys, ICE’s “Egregious” FOIA Violations, the FBI’s Convoluted FOIA Search Process, and Much More: FRINFORMSUM 6/25/2015

June 25, 2015
FACA

The FOIA Advisory Committee.

The FOIA Advisory Committee’s subcommittees on both fees and oversight and accountability have each sent out surveys to learn more about their respective issues. The federal FOIA Ombudsman, OGIS, recently reported that the oversight and accountability subcommittee – which the Archive’s FOIA Project Director Nate Jones sits on – issued a survey to each federal agency’s FOIA public liaison (FPL), who are statutorily mandated to reduce FOIA delays, increase transparency, understand the status of FOIA requests and resolve FOIA disputes. While the role of the FPL is “described in an Executive Order (Executive Order 13392, Improving Organization Disclosure of Information) and legislation (the OPEN Government of Act of 2007), the Committee has observed that how FPLs work within a particular agency seems to vary widely.” The subcommittee hopes that the survey results will shed light on what actions FPLs take at individual agencies to fulfill their mandate. For its part, the fees subcommittee sent out a survey to determine how to cut down on both the frustration and the confusion surrounding the administration of FOIA fees. Both surveys are available here.

US District Chief Judge Marsha Pechman found that the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) egregiously violated the FOIA when it ignored Prison Legal News’ request for information on the telephone costs for immigrant detainees. ICE ignored two consecutive FOIA requests from the advocacy organization despite FOIA’s clear instruction that agency’s have 20 business days to respond to requests, absent clearly stated extenuating circumstances. Judge Pechman awarded Prison Legal News attorneys fees and costs for pursuing the lawsuit.

A FOIA lawsuit seeking FBI records related to the 1995 Oklahoma City bombing is shedding light on the FBI’s convoluted FOIA search process. According to the Reporter’s Committee for Freedom of the Press (RCFP), “The latest testimony from the Trentadue case shows that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records ‘systems’ that they need to specify in order for a comprehensive search to take place.” These systems include the Automated Case Support system (ACS), which searches the FBI’s Central Records System. The ACS itself is split into three parts: the Investigative Case Management system (ICM), the Electronic Case File (ECF), and the Universal Index (UNI). The RCFP notes that “the ICM is a case management tool for documents involved in an ongoing investigation. The ECF is broader and contains all FBI law enforcement documents uploaded to the CRS except for some aged documents, or documents not uploaded for unknown reasons. Importantly, the ECF searches the text of the documents themselves.” Because the FBI routinely acts in bad faith when responding to FOIA requests and does not search the majority of its records systems unless specifically asked, FOIA requests to the FBI should include language requesting the bureau search all components of the ACS: the ICM, the ECF, and the UNI.

A Foreign Intelligence Surveillance Court judge ruled this week that a public advocate is not needed in cases where “the legal question is relatively simple.” The ruling comes on the heels of the passing of the USA Freedom Act, which “directed that the court, which typically hears only the government’s side of surveillance cases, appoint ‘amicus curiae’ or a panel of technical experts to offer an alternative perspective in ‘novel’ or ‘significant’ cases.” The Cato Institute’s Julian Sanchez said of the ruling, “I’m a little worried. If the point is to ensure the court is hearing a different perspective, whether the [amicus provision] kicks in shouldn’t depend on whether an issue seems obvious before the court has heard any counter arguments.”

Project CAMBERDADA.

Project CAMBERDADA.

WikiLeaks released documents this week showing the National Security Agency (NSA) has spied on the last three French presidents. The documents detailing the snooping include “summaries of conversations between French officials on the global financial crisis, the future of the European Union, ties between [French President Francois] Hollande’s administration and German Chancellor Angela Merkel’s government.” The Intercept also reported this week that documents leaked by former NSA contractor Edward Snowden show that the NSA and its British counterpart, the GCHQ, tried to compromise anti-virus software to track users, and tracked the email traffic of anti-virus companies “for reports of new vulnerabilities and malware” as part of Project CAMBERDADA.

The Obama administration announced a change in its hostage policy this week, noting that the Department of Justice will not prosecute families who raise ransom money for Americans who have been taken hostage overseas. The change is announced as part of a larger overhaul to the US’s hostage policy, which has been criticized for being dysfunctional and disjointed. The overhaul does not include the appointment of a “hostage czar,” an idea that had been broached to lead the multi-agency response to hostage crises. Instead, the administration announced the creation of a “fusion cell” that will be housed at the FBI and report to the White House through the National Security Council.

While the Senate Intelligence Committee reported last year that US Bureau of Prisons (BOP) officials visited a secret CIA prison in Afghanistan, the BOP responded to an ACLU FOIA request stating that it had no documents on the trip. BOP’s response to the FOIA request is confounding, considering the SSCI reports that BOP officials were “wow’ed” by the tour, having “never been in a facility where individuals are so sensory deprived.” The ACLU appealed the denial, arguing that “It’s completely implausible, we’re talking about federal employees traveling to an active war zone, making an inspection of a detention facility, making recommendations and training employees of another federal agency.” The Bureau of Prisons, unlike law enforcement and intelligence agencies, does not have the authority to classify records.

A computer glitch that hit the State Department’s system for running security checks on foreign visitors has ground the issuing visas to a halt. The glitch, which is rooted in a post 9/11 security measure that runs automatic scans of biometric data, hit US embassies around the world, and the State Department says “it will take time to catch up with two weeks of backlog, built up at an average of 50,000 visa applications every day.” The State Department attempted to use a backup system for the checks after the problems with the main system were discovered, but found the backup system “damaged and unusable.”

Maj. Gen. Dana J.H. Pittard was reprimanded by the Army for his “excessive involvement” in awarding a $492,000 contract to former classmates. (Tony Gutierrez/AP)

Maj. Gen. Dana J.H. Pittard was reprimanded by the Army for his “excessive involvement” in awarding a $492,000 contract to former classmates. (Tony Gutierrez/AP)

Documents obtained through the FOIA by the Washington Post show that the DOD reprimanded the Army’s deputy commander for operations in the Middle East, Maj. Gen. Dana J.H. Pittard, for his “excessive involvement” in awarding a $492,000 contract to his West Point classmates. The reprimand was issued this February after the Army’s Inspector General conducted a three year investigation, spurred by a whistleblower’s allegations that the general had “abused his authority by awarding lucrative renewable energy contracts to his friends.”

NPR’s Caitlin Dickerson reported this week, relying on documents obtained by the FOIA and interviews, that the Army ran chemical experiments on WWII soldiers according to their race. The DOD declassified documents in 1993 revealing that it had exposed some 60,000 enlisted men to mustard gas and other chemical agents, but concealed that the tests were conducted by race. According to Dickerson, African-American, Japanese-American and Puerto Rican enlisted men served as proxies “so scientists could explore how mustard gas and other chemicals might affect” enemy troops. The white soldiers were used as scientific control groups. One of the documents won by FOIA that contributes to the reporting is a DOD report dated June 20, 1944, entitled, “Tests on the Sensitivity of Whites and NISEI to Mustard Gas and Lewisite (Including Tests for Allergic Sensitization to Mustard Gas Following Experimental Exposure).”

“Tests on the Sensitivity of Whites and NISEI to Mustard Gas and Lewisite (Including Tests for Allergic Sensitization to Mustard Gas Following Experimental Exposure).”

“Tests on the Sensitivity of Whites and NISEI to Mustard Gas and Lewisite (Including Tests for Allergic Sensitization to Mustard Gas Following Experimental Exposure).”

This week’s #tbt document pick is chosen with North Korea’s ongoing, historic drought and potential for increased food shortages in mind. This week’s #tbt pick is an October 2006 posting entitled, “North Korea’s Collapse? The End Is Near – Maybe.” The posting contains 19 FOIA-released documents, many of which are from the State Department’s Bureau of Intelligence and Research (INR), which attempt to answer how the food crisis of the mid-90s would affect North Korea politically and the rationale for supplying food aid.

Happy FOIA-ing!

CISA’s 10th FOIA Exemption Momentarily Held at Bay, the CIA’s Domestic Spying Efforts Come Under Scrutiny Again, and Much More: FRINFORMSUM 6/18/2015

June 18, 2015
McConnell likely to continue quest to add 10th exemption to FOIA? Photo credit: Gage Skidmore/Flickr

McConnell likely to continue quest to add 10th exemption to FOIA? Photo credit: Gage Skidmore/Flickr

The Senate voted against Majority Leader Mitch McConnell’s (R-Ky.) attempt to attach CISA – the Cybersecurity Information Sharing Act of 2015 – to the National Defense Authorization Act this week. CISA would, among other controversial provisions, add a tenth exemption to the FOIA covering all “information shared with or provided to the Federal Government.” The Sunlight Foundation’s Matthew Rumsey notes, “This is a victory, but it is likely only temporary. The Senate can — and likely will — consider the bill on its own anytime McConnell decides it is appropriate. In the meantime, transparency advocates will keep fighting to kill its harmful FOIA provisions.”

A FOIA request submitted by the ACLU and subsequently shared with The Guardian won the release of a previously classified 1987 CIA document outlining the agency’s guidelines for “human experimentation.” The document shows that the agency likely broke its own rules torturing terrorism detainees. The document specifies that “The agency ‘shall not sponsor, contract for, or conduct research on human subjects’ outside of instructions on responsible and humane medical practices set for the entire US government by its Department of Health and Human Services. A keystone of those instructions, the document notes, is the ‘subject’s informed consent’.” The document, which serves as a clarification of what the agency is permitted and prohibited from doing under EO12333, also grants the CIA director the discretion to “approve, modify, or disapprove all proposals pertaining to human subject research.”

AR 2-2 (U) LAW AND POLICY GOVERNING THE CONDUCT OF INTELLIGENCE ACTIVITIES (Formerly HR 7-1)

AR 2-2 (U) LAW AND POLICY GOVERNING THE CONDUCT
OF INTELLIGENCE ACTIVITIES (Formerly HR 7-1)

The CIA recently released 49 documents in response to a FOIA lawsuit filed by the ACLU and the Yale Law School that raise alarming questions about the extent of the agency’s domestic spying. The documents, many of which are policy briefings on how the CIA complies with Executive Order 12333, “strongly suggest that the agency engages in an extensive amount of domestic spying operations that are largely kept secret from the American people.” The key takeaways from the documents are: the CIA regulation referred to as “AR 2-2″ governs a wide spectrum of the CIA’s activities; the agency’s domestic activity is often done in conjunction with the FBI; and “The rules for the handling of Americans’ information are so complex that the CIA struggled to apply them properly.” The documents raise questions about, among other things, what the CIA’s definition of “monitoring” domestic targets is, when monitoring devices may be used, and how “monitoring” differs from “electronic surveillance.” The Privacy and Civil Liberties Oversight Board is currently reviewing the Intelligence Community’s counterterrorism-related activities under EO 12333, and will hopefully shed more light on the CIA’s domestic actions.

The USS Pueblo docked in Pyongyang in 2010. For good measure, here is the official North Korean news agency report on the status of the spy ship: http://www.kcna.co.jp/item/2013/201302/news21/20130221-37ee.html

The USS Pueblo docked in Pyongyang in 2010. For good measure, here is the official North Korean news agency report on the status of the spy ship: http://www.kcna.co.jp/item/2013/201302/news21/20130221-37ee.html

The CIA has declassified five internal documents related to the agency’s performance in the lead-up to 9/11. They include a less-redacted version of a 2005 CIA inspector general report that found that the CIA did not have a comprehensive strategy for fighting al Qaeda before 9/11. The four other documents provide alternate views on the agency’s performance during this critical time period. The CIA has also released unclassified extracts from its March 2015 Studies in Intelligence publication – the agency’s in-house journal. The three articles released focus on autonomous systems, Laos, and the USS Pueblo.

On Tuesday the House of Representatives voted 247-148 to pass the 2016 intelligence authorization bill and increase spending on intelligence programs by seven percent. While most of the bill’s provisions are classified, known items include a ban on transferring Guantanamo detainees – six were transferred to Oman this week before the House vote –, and a provision that would block PCLOB – an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties – access to information on covert programs. The Washington Post’s Ellen Nakashima reported that Republicans on the House Intelligence Committee advanced the PCLOB provision after being angered by an opinion piece penned by PCLOB’s chairman. PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

The FBI recently briefed members of the Senate on its aerial surveillance program, assuring Congress – while refusing to answer certain questions about the program – that its “plane surveillance program is a by-the-books operation short on high-definition cameras — with some planes equipped with binoculars — and said only five times in five years has it tracked cellphones from the sky.” The Senate briefing was spurred by the Associated Press report last month that the bureau was operating a small air force of 115 planes across the country, some of which carried cellphone surveillance technology “generally used without a judge’s approval.”

The Department of Justice has acknowledged that there are currently two ongoing investigations into whether or not the Defense Department’s Office of Inspector General destroyed evidence during the investigation into former National Security Agency (NSA) officer Thomas Drake. Drake began cooperating with the Pentagon’s IG investigation of the NSA’s surveillance powers in 2002 and 2003, and was charged by the government in 2010 under the Espionage Act. The charge was dropped in 2011 in a case that US District Court Judge Richard Bennett called “unconscionable,” adding that it didn’t “pass the smell test.” The DOJ issued the acknowledgement in response to federal magistrate Judge Stephanie Gallagher’s own investigation into the controversy, which she launched after Drake’s lawyers accused the DOD IG of the destruction in April.

The Department of Justice sued US Investigations Services Inc. (USIS), the company that performed Edward Snowden’s background check, for billions in damages last year. USIS, which lost its contract after a whistleblower leaked that it “churned through” security clearance investigations, fraudulently signed off on over 650,000 clearances between 2008 and 2012, including checks for Snowden and the Navy Yard Shooter, Aaron Alexis. The Washington Post reported this week, however, that current security clearance contractors, KeyPoint Government Solutions and CACI, have a similar quota system and “are required to meet pre-determined numbers that dictate how many people they have to interview per day,” frequently resulting in “shoddy investigations.”

Today’s #tbt pick is chosen with the 36th anniversary of the signing of the SALT II Treaty by Leonid Brezhnev and President Jimmy Carter in mind. Today’s #tbt pick is the transcript of the proceedings of the 1994 Musgrove Conference of the Carter-Brezhnev Project, entitled “SALT II and the Growth of Mistrust.” Learn more about the Carter-Brezhnev Project, which was sponsored by the National Security Archive, the Watson Institute at Brown University, and the Norwegian Nobel Institute, here.

The Carter-Brezhnev Project.

The Carter-Brezhnev Project.

Happy FOIA-ing!

Cybersecurity Bill Tacked onto NDAA Without Debate, ISCAP Continues to Largely Overrule Agency Classification Decisions, and Much More: FRINFORMSUM 6/11/2015

June 11, 2015
Sen. Mitch McConnell tacks CISA onto NDAA without debate. Photo credit: The Hill

Sen. Mitch McConnell tacks CISA onto NDAA without debate. Photo credit: The Hill

Citing the recent hack of the Office of Personnel Management, Senate Majority Leader Mitch McConnell (R-Ky.) announced he will attach “the Senate Intelligence Committee’s information-sharing CISA bill to the National Defense Authorization Act.” OpentheGovernment.org notes CISA – the Cybersecurity Information Sharing Act of 2015 – “does far more to increase surveillance and undermine transparency than to protect against cyber threats.” Politico’s Tal Kopan notes that the bill has not been changed since it passed committee, despite privacy concerns, and that “The filing tactic means it will be very difficult for critics to amend CISA when the bill-as-amendment gets to the floor.” Senator Leahy (D-Vt.) has criticized the procedural maneuver and called for public debate on a bill that would, if passed, add a tenth exemption to the FOIA covering all “information shared with or provided to the Federal Government.” As Josh Gerstein reports, “That information could intentionally or unintentionally include information about private individuals, creating a new, opaque repository of government-held data on Americans and foreigners.”

The latest report from the Information Security Oversight Office (ISOO), housed at the National Archives and responsible to the President for policy and oversight of the government-wide security classification system, reveals that the Interagency Security Classification Appeals Panel (ISCAP) continues to overrule agency classification decisions in Mandatory Declassification Review appeals nearly 75 percent of the time. Specifically, in FY2014 ISCAP received 109 MDR appeals and ruled on 48, concerning a total of 451 documents. Out of the 451 documents reviewed for the 48 appeals, ISCAP “affirmed the prior agency classification decisions in 113 documents (25 percent), declassified 181 documents (40 percent) in their entirety, and declassified 157 documents (35 percent) in part.” Government-wide, “Agencies received 9,026 initial mandatory declassification review (MDR) requests and closed 7,798 requests.” The report goes on to note that, “Agencies reviewed 597,498 pages, and declassified 372,134 pages in their entirety, declassified 190,654 pages in part, and retained classification of 34,710 pages in their entirety. Agencies received 409 MDR appeals and closed 286 appeals.”

ISOOs 2014 Report to the President.

Images from ISOO’s 2014 Report to the President.

The ISOO report also shows that the number of both original and derivative classification decisions has fallen, while the cost to protect them has increased. Original declassification decisions, for example, dropped by 20 percent in FY2014 to 46,800 – a record low. The cost of protecting the decreasing number of secrets, however, rose to nearly $15 billion in FY2014, an increase of $3.25 billion from FY2013. The increase is due in large part to Defense Department “expenditures [of $3.2 billion] on information systems security.” The ISOO report also notes an increase in successful formal classification challenges.

The New York Times recently reported that in mid-June 2012 Department of Justice (DOJ) lawyers “wrote two secret memos permitting the spy agency to begin hunting on Internet cables, without a warrant and on American soil, for data linked to computer intrusions originating abroad — including traffic that flows to suspicious Internet addresses or contains malware.” The documents further show that while the DOJ allowed the National Security Agency (NSA) to monitor “cybersignatures” that it could tie to foreign governments, the spy agency “sought permission to target hackers even when it could not establish any links to foreign powers.” The memos were part of disclosures made by former NSA contractor Edward Snowden and do not specify what criteria are used for selecting targets.

Four hours after President Obama promised to sign a law banning bulk surveillance of American phone records, his Justice Department’s national security chief John Carlin petitioned the Foreign Intelligence Surveillance Court (FISA) to permit the NSA to continue the collection for another six months. Carlin petitioned the FISA to grant the continued collection in light of the passage of the USA Freedom Act, which calls for an end to bulk collection of the phone records in six months, and despite the Second Circuit Court of Appeals May 7 ruling “that the government had erroneously interpreted the Patriot Act’s authorization of data collection as ‘relevant’ to an ongoing investigation to permit bulk collection.” The Second Circuit stopped short of issuing an injunction halting the collection, instead deferring to the then-ongoing USA Freedom Act debate.

SEAL Team 6 - most famous for killing Osama bin Laden - faces little oversight.

SEAL Team 6 – most famous for killing Osama bin Laden – faces little oversight.

Harold Koh, the State Department’s former top legal adviser, told the Times that the Navy’s famed SEAL Team 6 – best known for killing Osama bin Laden – “is an area where Congress notoriously doesn’t want to know too much” in spite of “recurring concerns about excessive killing and civilian deaths.” The Times further reported that Team 6 has, as part of its expanding mission, cooperated with the CIA on the Omega Program, which was modeled after the Vietnam-era Phoenix Program and “offered greater latitude in hunting adversaries” in Pakistan. Compounding worries of limited outside oversight of the rapidly growing unit is the fact that it is investigated by the Joint Special Operations Command, which oversees the SEAL Team 6 missions, and rarely refers them to Navy investigators.

Guantanamo detainee Majid Khan has accused the CIA of engaging in a wider range of torture and sexual abuse than was reported in the Senate report on the CIA’s torture program. The accusations – which include assertions that CIA interrogators “poured ice water on his genitals, twice videotaped him naked and repeatedly touched his -private parts’” – were compiled by Khan’s lawyers and made public last month. Khan’s account squares with those of lower-level detainees and “match[es] those of other detainees who have alleged that they were subjected to unauthorized interrogation techniques using water.”

A group of families whose relatives died in a 2012 CIA drone strike in Yemen “have filed suit in federal court in Washington on Sunday night, asking the court to declare that the strike was unlawful.” The complainants seek no monetary damages, and instead argue they are trying to shed light on, and bring a measure of accountability to, the lethal targeting program. Legal scholars say the suit, which “challenges the legality of the strike under the Torture Victim Protection Act and the Alien Tort Statute,” is unlikely to succeed, as the torture law does not allow claims against American officials.

One of these leaks is not like the other? Photo: International Security Assistance Force.

One of these leaks is not like the other? Photo: International Security Assistance Force.

The federal judge in the General David Petraeus case has unsealed nearly three dozen letters of support filed on the general’s behalf from members of Congress, former British Prime Minister Tony Blair, and others. Petraeus “was sentenced to two years of probation and fined $100,000 for unauthorized removal and retention of classified information.”

While attempting to beef up security at the White House after numerous breaches, the Secret Service posted dozens of officers to sensitive assignments without security clearances. Secret Service director Joseph Clancy promised to fix the problem as soon as possible, noting that “the agency is struggling to work through an ‘administrative backlog’ in issuing security clearances with the higher-than-normal volume of new hires.”

A FOIA request filed by The Washington Post showed that the Special Operations commander in Central and South America, Army Brig. Gen. Sean P. Mulholland, was removed for repeated incidents of public intoxication. Mulholland “also got into altercations with civilians on two occasions last year after drinking at a golf club bar near his Florida headquarters, according to military records.” He is the fourth general to lose his job or be reprimanded for alcohol-related reasons in two years.

In response to an Archive FOIA request, the Department of Justice Office of Information Policy recently provided our office with a breakdown of how many times FOIA’s exemption b(5) was applied across the government in FY2014. The Archive filed a FOIA request for this figure because in its FY2014 summary report, OIP only provided the percentage of times b(5) was applied across all citations — without providing the total number citations the percentage was calculated from. In previous years, OIP provided a total number of times an exemption was applied across the government. OIP‘s response to our FOIA shows that in FY2014 b(5) was used 71,005 times government-wide. At the very least, OIP’s reporting should indicate the total number of citations the percentages it cites are calculated from. Even better, it should revert to reporting hard numbers.

Chinese CNE Capabilities

Capability of the People’s Republic of China to Conduct Cyber Warfare and Computer Network Exploitation.

This week’s #tbt document pick is chosen with the recent hacking of the Office of Personnel Management by Chinese state-sponsored hackers in mind. This week’s #tbt pick is an October 9, 2009, report prepared for the US-China Economic and Security Review Commission entitled, “Capability of the People’s Republic of China to Conduct Cyber Warfare and Computer Network Exploitation.” The report “focuses largely on Chinese computer network exploitation (CNE) as a strategic intelligence collection tool. It examines Chinese CNE operations strategy and operations during conflict, key entities in Chinese computer network operations, cyber-espionage, an operational profile of an advanced cyber intrusion, and a chronology of alleged Chinese computer network exploitation events.”

Happy FOIA-ing!

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