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FOIA Helps Show How Conservative TV Giant Could Find its Way Into 7 out of 10 Homes: FRINFORMSUM 8/17/2016

August 17, 2017

The FCC’s Ajit Pai’s calendar notes a meeting with Sinclair executives and business partner.

FOIA Helps Show How Conservative TV Giant Could Find its Way Into 7 out of 10 Homes

FOIA requests to the Federal Communications Commission won the release of hundreds of pages of documents showing how the TV giant Sinclair Broadcast Group stands to benefit from the agency’s “deregulatory blitz.” Most important is a deregulation that effectively removes a cap on how many stations a single broadcaster can own and that could put Sinclair in the vast majority of American’s homes.

Sinclair, already “the nation’s largest television station operator by coverage,” is trying to merge with another TV giant – Tribune Media. Current rules, however, mandate that no one company can own TV stations that reach more than 39 percent of the nation. But FCC chair Ajit Pai approved a measure in April – that reinstates “an obsolete loophole called the ‘UHF discount,’ which allows broadcasters to discount by 50 percent the reach of local stations that use ultra-high-frequency (UHF) TV signals” – that will all but ensure the media giant can work around this constraint.

If approved, the merger would “transform Sinclair into a media juggernaut, with reach into seven out of 10 homes through more than 200 stations in cities as diverse as Eureka, Calif., and Huntsville, Ala. The company would have a significant presence in important markets in several electoral swing states, including Pennsylvania, Ohio and North Carolina, and would gain entry into the biggest urban markets: New York, Los Angeles and Chicago.”

The move alarms critics. Former FCC Commissioner Michael Copps says, “No one company should have such power over the news and information that citizens must have to successfully practice the art of self-government. And that doesn’t even get into the vices of this particular company.” The Washington Post reported in December 2016 that, “A review of Sinclair’s reporting and internal documents shows a strong tilt toward Trump” and that local affiliates were forced to air “must-run” pro-Trump specials.

FCC chair Ajit Pai has also come under fire in recent months for his proposed net neutrality rollbacks. More on those stories here and here.

FOIA Sheds Light on Harassment of Trump Org Whistleblowers by Trump Security Again

A family’s harassment at the hands of the Trump Organization’s security team is the subject of a recent Buzzfeed article. The story – bolstered by FOIA responses from the FBI – details how Trump security guards terrorized the wife and 12-year-old son of a Trump Organization employee who threatened to reveal financial malfeasance at the company. The employee, Daut Bajrushi, “believed he had evidence the Trump company had ripped off homeowners of about $300,000.” When his wife and son went to his office to retrieve paperwork, guards allegedly intimidated them and threatened to hurt the family if they went public.

This is not the first accusation of Trump security intimidating would-be whistleblowers. FBI FOIA responses to Buzzfeed’s Jason Leopold and MIT’s Ryan Shapiro and published in May of this year detailed previously unreported threatening phone calls – one the FBI characterized as “overt extortion” – related to Trump’s business dealings that were investigated by the bureau. The more recent was a 2009 call that was received by a high-profile bankruptcy lawyer representing clients who “stood to lose more than a billion dollars” over Trump’s failed casino venture, Trump Entertainment Resorts. The caller told the lawyer, Kristopher Hansen, that “My name is Carmine. I don’t know why you’re fucking with Mr. Trump but if you keep fucking with Mr. Trump, we know where you live and we’re going to your house for your wife and kids.” More on this story here.

FBI Sued for Records on Roger Ailes for Second Time this Month

 Ryan Shapiro and Property of the People’s Operation 45 are suing the FBI under the FOIA for records on ousted Fox News head, Roger Ailes, as well as documents concerning Fox News Channel, Fox Television Stations, and 21st Century Fox. The complaint was filed in the US District Court for the District of Columbia.

This is the second FOIA suit filed this month for the FBI’s records on Ailes. Gizmodo sued the FBI after the bureau didn’t respond in that statutory 20-day time period. The complaint was filed in the US District Court for the Southern District of New York.

We Need to Have Our History

Information Security Oversight Office (ISOO) director Mark Bradley recently gave an enlightening interview to Federal News Radio’s Meredith Somers that should be a must-read for classification authorities and records management officials alike. Of the approaching tsunami of email and electronic records Bradley says, “I worry about what historians will face 50 years from now when they write the history of what’s going on now, what kind of records they’re going to have, whether they’re going to have access to them at all.” Bradley also says agencies need to stop approaching classification and declassification efforts as a zero-sum game; “If you ask an agency like the Central Intelligence Agency [CIA] to focus more on classification, they’ll ask whether you’d rather the agency combat terrorism or spend money on looking at what happened during the Bay of Pigs. The answer obviously is we all want to be protected, but we also need to have our history.”

The 50-Year Rule Not Working

Our “FOIA Yoda” and Nuclear Vault director, Dr. William Burr, takes a look at some more dubious secrets in “The Fifty-Year Rule: Its Use and Misuse.” A key question? How can DOD reviewers seriously believe that these 50-year old documents remain so sensitive that disclosing them would cause serious harm to U.S. foreign relations?

TBT Pick – JFK and Top Aides Considered Preventative Military Action Against Chinese Nuclear Facilities

Today’s #tbt pick is a 2001 posting detailing how President John F. Kennedy and top advisers considered bombing strikes and covert paramilitary operations to destroy China’s nascent nuclear weapons program in the early 1960s. Some of the highlights from the declassified documents behind the posting are:

  • JFK saw the prospect of a nuclear-armed China as a dangerous threat and the Pentagon and the CIA looked closely at the possibility of covert para-military operations to destroy China’s nuclear weapons installations.
  • National security adviser McGeorge Bundy played a key role in encouraging covert planning against China’s nuclear program, which included discussions of paramilitary operations such as raids by Taiwanese commandos as well as the prospect of joint action with the Soviet Union.
  • Other officials, including State Department analysts, were not persuaded by worst-case analyses of a nuclear China and argued that Beijing would be more cautious, not more aggressive.

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The Fifty-Year Rule: Its Use and Misuse

August 15, 2017

The Department of Defense and military agencies use the foreign policy exemption in Executive Order 13526 to deny or heavily excise documents that are well over 50 years old.  According to Pentagon claims, declassifying information from that far back could cause significant harm to U.S. diplomacy. That many of the same documents have been declassified since the 1990s raises questions about the discernment of those agencies and whether they should be in a position to unilaterally substitute their judgment on U.S. diplomatic necessities for the State Department’s.

Under Executive Order 13526 signed by President Barack Obama in December 2009, and still in effect, classified documents 50 years or older, must be declassified unless they include the names of confidential intelligence sources or information on weapons of mass destruction technology.  The executive order includes an escape clause for the 50-year rule; under section 3.3 (h) (2), “in extraordinary cases” agencies can request permission to exempt “additional specific information.”  In practice, this means, for example, that agencies can use the standard Executive Order exemptions deny information.  For example, Defense can apply Section 3.3 (b) (6) of the executive order to restrict old documents whose content would supposedly “reveal information, including foreign government information, that would cause serious harm to relations between the United States and a foreign government, or to ongoing diplomatic activities of the United States.”  As it turns out, this gives the Pentagon authority that it has misused.

In recent decisions on mandatory review cases, Defense Department reviewers used the E.O. foreign policy exemption to deny or heavily excise documents that have been in the declassified public record for a number of years.  Examples are discussed below.  The purpose of the discussion is not to rebuke Pentagon declassification reviewers for being unaware that documents have been declassified. There are many declassified documents at U.S. government archives and presidential libraries.  The point is to raise questions about the judgement of the reviewers.  How can they seriously believe that these 50-year old documents remain so sensitive that disclosing them would cause serious harm to U.S. foreign relations?

Documents on the Cuban Missile Crisis

 

A recent example of the evident misuse of the foreign policy exemption concerns documents from the Cuban Missile Crisis, October 1962, held among State Department records at the National Archives (College Park).   In response to a mandatory declassification review request by journalist Michael Dobbs, the National Archives organized security review by agencies that were deemed to hold information “equities” in the documents.  In the first response to the request, NARA informed Dobbs that the Department of Defense had withheld in their entirely 18 documents (over 190 pages) from declassification on the basis of E.O. exemption (6) as well as the Atomic Energy Act [6.2 (a)]. It is not clear whether the Defense Department had exempted all, or just some, of the 18 documents on the basis of both two exemptions.  As indicated below, some of them have nothing to do with nuclear weapons.  Even though the collection is in State Department records, that agency withheld no information from Dobbs’ request.

Notwithstanding the fact that these documents were produced nearly 55 years ago during a crisis whose basic contours and substance have been declassified for years, everything from invasion plans and intelligence collection to secret negotiations and alliance diplomacy, it is perplexing that the Pentagon finds it necessary to use E.O. exemption (6) to withhold information on those events.  Apparently, declassifying information about the crisis could damage U.S. foreign relations!  Yet, as it turns out, more than a few of the exempted documents have been declassified in their entirety since the 1990s, when the State Department was declassifying documents in response to requests from the National Security Archive and when, in 1998, the State Department published documents on the crisis in its historical series, Foreign Relations of the United States.  Specific identification is possible because the withdrawal sheets in the collection provide dates and titles of the documents that remain in the vault at NARA.

As for the Atomic Energy Act claims mentioned above, a few of the documents exempted in this case, but previously published by the State Department, might be said to include information characterized as “formerly restricted data.”  As they have been in the State Department’s open record for nearly 20 years, however, their special status weakens any claims about FRD.

One of the documents exempted by the Defense Department is an intelligence community product, published on 19 October 1962, “Joint Evaluation of Soviet Missile Threat in Cuba.”  This document was published in 1998, in the FRUS microfiche supplement.  In 1992 the CIA published the same information in its collection, CIA Documents on the Cuban Missile Crisis, edited by Mary S. McAuliffe. Whether the Defense Department believes that this item is classified atomic energy information or harmful to U.S. foreign relations is unclear.

Another document withheld by Defense, “Air Strike Scenario,” is also published in the 1998 FRUS microfiche supplement. This document reviews the political and diplomatic approach that would be taken if the United States attempted to destroy the Soviet missile deployments with a surprise attack. What may have contributed to Defense Department hackles is a sentence on page 3 referring to nuclear weapons in Italy and Turkey. As sensitive as this information was at the time, U.S. nuclear deployments in Italy and Turkey have become one of those open secrets that the classification system cannot conceal.

Also exempted by the Pentagon was a State Department memorandum from about 20 October, 1962, “Quarantine” a timetable for military and diplomatic action that would be taken up to the moment when the United States imposed a blockade of Cuba.  The State Department declassified this document in response to a request from the National Security Archive during the late 1980s.

Also exempted by the Pentagon are the Joint Chiefs of Staff’s instructions, sent 22 October 1962, to the Commander in Chief Atlantic Command (CINCLANT) Admiral Robert Dennison ordering him to make preparations for the blockade. This document is available in the FRUS microfiche supplement. The Pentagon’s reasons for classifying this telegram are inscrutable.

A State Department document titled “Cuba,” dated 23 October 1962, and released in its entirety by the Department to the National Security Archive during the 1990s, was also exempted.  The Pentagon may regard it as sensitive because of the discussion of withdrawing Jupiter ballistic missiles from Turkey as part of a diplomatic settlement.  Even though the Defense Department’s official history of Robert McNamara as Secretary of Defense includes detailed discussion of the role of Jupiter deployments in both Turkey and Italy during the crisis, the Department’s reviewers go to absurd lengths to avoid declassifying information about the Jupiters. A sentence concerning U.S. nuclear weapons in West Germany is another non-secret because the fact of the deployments was declassified during the 1990s.

A White House Meeting in September 1959

The Department of the Navy and the Defense Department jointly provide another recent example of silly foreign policy secrecy.  In response to a request made in 2011, the Navy recently released a heavily excised version of a memorandum signed by Chief of Naval Operations Arleigh Burke concerning a White House meeting on nuclear policy issues, held on 22 September 1959.  President Dwight E. Eisenhower attended the meeting, as did Atomic Energy Commission chairman John McCone and Under Secretary of State C. Douglas Dillon.  According to the Navy’s letter, the Navy Department and the Defense Department withheld large chunks of the document by citing the 3.3 (b) (6) foreign relations exemption. In addition, one piece of information in the memorandum on page 3 was excised under exemption 3.3. (b) (2), designed to protect “information that would assist in the development, production, or use of weapons of mass destruction.” Tellingly, the Department of Energy (the successor to the AEC) had no objection to declassifying this document in its entirety.

White House staff secretary Andrew J. Goodpaster attended the meeting and prepared a detailed account of it, which has been declassified in its entirety in a FRUS microfiche supplement published in 1998, although not on-line.  The Goodpaster version shows that the withheld portions on pages 1 through 3 concern the staging of special experiments (generally known as “hydronuclear tests) to check the safety of the fission primaries incorporated in thermonuclear weapons.  “CREEP testing” referred to the use of high explosives and increasingly larger, but minute, quantities of plutonium (they would creep up in size) tested in a weapons configuration to determine the safety of a particular device.  Such tests have been called “zero nuclear yield”, but the actual yield exceeded zero, although only fractions of a pound. (See Eric Schlosser, Command and Control: Nuclear Weapons, The Damascus Accident, and the Illusion of Safety, at 197-199) These safety tests were a subject of continuing discussion in the Eisenhower and Kennedy administrations and more information on them has been declassified in the FRUS. As sensitive as this topic may have been in 1959, policy discussion on hydronuclear experiments has been declassified for years.

The Defense and Navy Department’s belief that declassifying much of the discussion of the safety experiments could harm U.S. foreign relations suggests that they were grasping for a reason to restrict the information.  That the Energy Department had no objection to release indicates that the Navy-Defense decision that declassification of a passage on page 3 would disclose information about weapons of mass destruction is highly suspect.

The declassified Goodpaster version indicates that the information excised on pages 4 through 6 of the Arleigh Burke version concerned the Netherlands government request for an atomic cooperation agreement concerning access to U.S. nuclear submarine technology. This involved complex alliance issues because other NATO governments, France, Italy, and West Germany, were also interested in developing nuclear-powered submarines.  One concern expressed at the meeting was the security of technical nuclear information; e.g. whether it would be safe in France where, according to Douglas Dillon, the “atomic activity is penetrated by Communists.”  On the Netherlands, Eisenhower argued that “if we have allies we must treat them like allies.” Dutch security was good, according to CIA director Allen Dulles.  McCone, however, wanted the U.S. to build the submarine for the Netherlands, although he acknowledged that they would rather do it themselves to save money. Again, declassifying Arleigh Burke’s version of this discussion could in no way harm U.S. foreign relations more than fifty years after the fact.

The routine misuse of the foreign relations exemption by the military agencies demonstrates the need for tightening up of the 50-year rule in the Executive Order.  An updated Executive Order should include checks on the discretion of the military agencies to use the foreign policy exemption to excise or withhold documents. (That should also be true of FRD under the Atomic Energy Act because it is evident that Defense officials do not know what is already declassified).  As the Defense Department has also applied exemption (6) to more recent information, e.g. from the 1970s, further constraints should be considered.   But with the Pentagon pulling the weight that it does today, and State Department leadership in retreat, it is doubtful that any reasonable reforms will occur in the foreseeable future.

My criticisms notwithstanding, I appreciate the work that the defense agencies put into handling mandatory review requests.  All the same, if they want their declassification processes to have reasonable credibility, they need to develop far better criteria for reviewing historical documents.

Federally-Funded Private Prisons Should be Subject to FOIA: FRINFORMSUM 8/10/2017

August 10, 2017

Federally-Funded Private Prisons Should be Subject to FOIA

The National Security Archive joined a large coalition of open government groups calling for the passage of legislation that would apply FOIA to federally-funded private prisons, closing a routinely abused loophole. The Private Prison Information Act of 2017 (S. 1728) was introduced by Senator Ben Cardin (D-Md.) and “extends the obligation to respond to Freedom of Information (FOIA) requests on the federal contracting agencies using existing FOIA procedures.”

Private prisons that receive government funding provide (ostensibly) the same service as government-run prisons, and 18 percent of federal inmates are housed in such facilities – but the companies claim they are exempt from disclosure laws.

The joint letter spearheaded by OpenTheGovernment and sent to members of Congress notes:

Despite the fact they are holding people in federal custody under federal law, nonfederal entities are not subject to the federal FOIA. Private contractors abuse this loophole by marking field reports for internal use only and shielding from public scrutiny information on security breaches, overcrowding, and unaccountable spending. Moreover, federal agencies that contract out for jail and prison beds often rely on FOIA Exemption 4 – the business trade secrets exemption – to avoid responding in full to FOIA requests pertaining to privately-run facilities. This loophole leads to a lack of information needed to understand the cost of detention in private facilities and allow the public to understand the fiscal and human impact of privatized detention and incarceration.

The proposed legislation comes on the heels of the Trump administration’s decision to reverse the Obama administration’s plan to phase-out federal use of private prisons.

MuckRock’s Private Prison Project is an invaluable resource for people concerned with this critical issue.

Transparency should also extend to the companies that operate interstate prison vans and transportation systems, which have long existed without appropriate oversight. (Visit The Marshall Project’s Prison Transportation project for more.)

Blackwater Founder Wants to Privatize Afghan War

Blackwater founder and Education Secretary Betsy DeVos’s brother, Erik Prince, has been making the rounds in recent weeks to advocate privatizing the war in Afghanistan – an idea reportedly supported by Stephen Bannon and Jared Kushner, if not the DOD. The change could have, among other ramifications, profound implications for transparency. The Atlantic Council’s Sean McFate warns that the world of contracted armies “is more opaque than the CIA or the DOD. … And the trend is invisible to most Americans.”

Blackwater’s record in Iraq does not provide assurances. Documents obtained through a FOIA request in 2012 shed light on how the Department of State rates, grades, and oversees the work assigned to its contractors. One assessment reported that Blackwater’s poor performance in Iraq caused the Department of State “to lose confidence in their credibility and management ability.”

Nisour Square Resentencings

The push for privatization comes at the same time a U.S. Appeals Court threw out one of the four first-degree murder convictions for Blackwater contractors involved in a 2007 shooting in Baghdad’s Nisour Square, which left 14 people dead and 17 wounded. The court ordered resentencings for the other three convictions, finding that the 30-year terms constituted “cruel and unusual punishment.”

In 2015 The New York Times obtained emails showing the FBI agent that led the investigation into four of the seven Blackwater contractors “became convinced that political appointees in the Justice Department were intentionally undermining the case.” The records showed that senior DOJ officials initially balked at bringing two machine-gun charges against the contractors, which are primarily levied against gang members and “carried mandatory 30-year prison sentences”; prosecutors ultimately only brought one machine-gun charge.

Pilot Program at Defense Department for Access to Classified Docs on Secure Tablets

Secure 8-inch screen tablets are being issued to senior officials at the Defense Department for accessing classified documents. The Defense Information Systems Agency initiated the program, which is part of the DOD Mobility Classified Capability – Secret program, this May. Reports indicate that the tablets “include features like the United Video Dissemination System that allows full-motion video from intelligence, surveillance and reconnaissance sources.”

1953 Iran Coup: New US Documents Withheld from FRUS Confirm British Approached US in Late 1952 About Ousting Mosaddeq

State Department memorandum of conversation dated December 3, 1952, describes a meeting between U.S. and British officials on the subject of: “British Proposal to Organize a Coup d’etat in Iran.”

The British Foreign Office approached the Truman administration on more than one occasion in late 1952 to propose a coup to overthrow Iranian Prime Minister Mohammad Mosaddeq, according to freshly declassified State Department documents. Posted by the National Security Archive for the first time, two previously Top-Secret memoranda from senior officials at State refer to a series of communications and meetings beginning in October 1952 in which British officials tried to win US approval of Mosaddeq’s ouster.

The posting consists of the most explicit, officially declassified records on the subject released to date by any government.

The two documents were originally considered for inclusion in the latest official US publication on the coup period. In June 2017, the State Department published a 1,007-page compilation of declassified State, Central Intelligence Agency, and National Security Council documents as part of its Foreign Relations of the United States (FRUS) series. But while both records are mentioned in the volume by title and date, their content was withheld in its entirety.

The Cuban Missile Crisis Revisited

Longtime National Security Archive fellow Michael Dobbs recently penned an opinion piece for the Washington Post on what President Trump – recently threatening Kim Jong Un with “fire and fury” – should know about the Cuban Missile Crisis. In writing his 2008 book One Minute to Midnight, Dobbs concluded “that the real risk of war arose not from the conscious designs of Kennedy, Nikita Khrushchev or even Fidel Castro. It stemmed from the possibility that the opposing sides could trigger a nuclear conflict that nobody wanted through miscommunication and freak accidents, which became increasingly likely at higher levels of military alert.”

Dobbs wrote a series of five postings for the Archive highlighting the key primary sources behind One Minute to Midnight: Kennedy, Khrushchev and Castro on the Brink of Nuclear War. The information includes such episodes as a startling Soviet plan to destroy the Guantanamo naval base, the storage and handling of Soviet nuclear weapons on Cuba, and the “Eyeball to Eyeball” confrontation between US and Soviet ships that never happened. The posts can be found below:

What Cyber Treats Does STRATCOM Fear Most?

The classified testimony Brig. Gen. Mary F. O’Brien, USAF, gave the Senate Armed Services Committee this April is the newest FOIA release to the National Security Archive’s Cyber Vault project, and maps the threats that most concern U.S. Cyber Command. Many of the priority items are redacted, but usable unredacted portions of the document outline the role of Gen. O’Brien’s specific command, the Intelligence Directorate, in supporting USCYBERCOM operations. The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, August 9.

Tbt pick – Danger of Nuclear War through Miscalculation – 1983 Edition

This week’s #tbt pick is a 2015 posting from our Able Archer Sourcebook that highlights a 1990 Soviet “War Scare” report – previously classified “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON” and published only after a 12-year fight by the National Security Archive. The report reveals that the 1983 War Scare was real. According to the President’s Foreign Intelligence Advisory Board (PFIAB), the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during the 1983 NATO nuclear release exercise, Able Archer 83.

The PFIAB report also shows that President Reagan learned about, and reacted to, the danger of nuclear war through miscalculation. After reading a June 19, 1984, memorandum from CIA Director William Casey describing “a rather stunning array of indicators” during the War Scare that added “a dimension of genuineness to the Soviet expressions of concern,” the president “expressed surprise” and “described the events as ‘really scary.'”

The cover page of the PFIAB report, previously classified as “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON”. It took over 12 years to win this document’s release from the George H.W. Bush Library.

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Additional Documents to The Atomic Bomb and the End of World War II

August 7, 2017

Washington Embassy Telegram 5599 to Foreign Office, 14 August 1945, Top Secret

To commemorate the anniversary of the atomic bombings of Japan in August 1945, the Nuclear Vault is adding two documents to the posting: The Atomic Bomb and the End of World War II: A Collection of Primary Sources.

Document 91 is a British embassy telegram from 14 August 1945, portraying President Harry S. Truman weighing the possibility of a third atomic bombing in Japan, hours before he received the Japanese surrender notice.  Document 96 is the text or draft of the speech that Truman gave to the Gridiron Club dinner in December 1945, in which he discussed his role in the decision to use the bomb and its devastating consequences. Both documents have been in the open public record for years, but they are worth including by shedding further light on Truman’s thinking and his early justification for the use of the bomb.

The British embassy telegram, sent by Minister John Balfour, depicts a mid-day discussion with Truman on 14 August 1945.  Truman and his advisers were waiting for the official Japanese surrender announcement, but it had not yet arrived. During the course of the meeting, Truman observed “sadly that he now had no alternative but to order an atomic bomb to be dropped on Tokyo.”  Truman may not have known that another bomb would not be available for use for another week.  Moreover, the atomic bombing of Tokyo would have been a gratuitous act given that the March 1945 firebombing had destroyed the central city.  In any event, such an option quickly became irrelevant because the surrender announcement arrived in a few hours that day.

Months later, on 16 December 1945, Truman gave a speech at the annual dinner of the Gridiron Club, an exclusive society of newspaper bureau chiefs, publishers, and editors.  The event was off-the-record, although The Washington Post reported the skits and other entertainment.  While what Truman said on the spot appears to be unknown, he did prepare in long-hand a 15-page text that may have provided the basis of his remarks.  Concerning the atomic bombings, Truman said:

You know the most terrible decision a man ever had to make was made by me at Potsdam. ….  It was a decision to loose the most terrible of all destructive forces for the wholesale slaughter of human beings …  It occurred to me that a quarter of a million of the flower of our young manhood was worth a couple of Japanese cities, and I still think that they were and are. But I couldn’t help but think of the necessity of blotting out women and children and non-combatants. We gave them fair warning and asked them to quit. We picked a couple of cities where war work was the principle industry, and dropped bombs. Russia hurried in and the war ended.

President Harry S. Truman, Handwritten Remarks for Gridiron Dinner, circa 15 December 1945

Plainly, Truman was troubled by the bombings, but he found the use of the bomb justifiable by sparring the lives of U.S. troops.  The quarter of a million figure, however, far exceeded the estimate made by General Marshall in June 1945, which was in the range of 31,000 (comparable to Battle of Luzon) [See document 26]. By citing an inflated casualty figure, Truman was deploying the rationale that would become central to official and semi-official discourse about the bombings during the decades ahead.

Despite Truman’s claim that he made a “terrible” decision at Potsdam, he assigned himself more responsibility than the historical record supports. On the basic decision, he had already concurred with the judgments of Stimson, Groves, and others that the bomb would be used as soon as it was available for military use. On a targeting decision, however, he had a role.  At Potsdam, Secretary of War Stimson raised his objections to targeting Japan’s cultural capital, Kyoto, and Truman supported the Secretary’s efforts to drop that city from the target list.

CBP Response to Travel Ban Under Renewed Scrutiny Thanks to FOIA Request: FRINFORMSUM 8/3/2017

August 3, 2017

Photo Credit: CNN

CBP Response to Travel Ban Under Renewed Scrutiny Thanks to FOIA Request

Documents released through the FOIA confirm that the agency ordered its employees to stonewall members of Congress and lawyers during the first hours of the travel ban. The released emails show a number of reactions from Customs and Border Protection to the ban, ranging from senior agency officials being “caught off guard just as badly as those travelers,” to instructing employees to intentionally ignore attorneys calling with questions about the Executive Order and detainees. CBP employees were ostensibly told to forward all Congressional inquiries to the office of Congressional Affairs, but at least one member of Congress – Rep. Gerry Connolly, Democrat from Virginia – says that the OCA didn’t answer any of his questions during the ban either, adding “They built a stone wall and gave us the middle finger.”

The FOIA-released documents also show how carefully CBP monitored the protests. “One email listed how many protesters were at major airports as of the evening of Jan. 29: 2,500 at JFK in New York, 1000 at Dallas-Fort Worth, 1000 at LAX, 800 in San Francisco, and 300 at Dulles.” The emails also contained “more than a dozen photos of groups protesting at airports,” alarming some privacy advocates.

Coast Guard Spent $6.6 Million to Protect Trump at Mar-a-Lago

The Coast Guard has spent $6.6 million protecting Mar-a-Lago over the course of President Trump’s seven weekend trips there (a running tally of Trump visiting his properties can be found here). The figure was revealed thanks to a FOIA request from The Washington Post to the Coast Guard – and shortly after Trump threatened to cut the agency’s budget by 14 percent (the White House later adjusted the cut from 14 percent to 2.4).

Trump’s Mar-a-Lago visits cost the Guard (and taxpayers) roughly $1 million a trip. At the same time, Coast Guard commandant Adm. Paul Zukunft said in a recent interview with CBS that the Guard was delaying fleet maintenance and didn’t have enough planes and ships to pursue potential drug shipments.

In response to questions about the extraordinary cost of safeguarding Trump, his family, and his properties, White House spokesperson Stephanie Grisham said: “He is not vacationing when he goes to Mar-a-Lago. The president works nonstop every day of the week, no matter where he is.”

Drone Program in Pakistan Not a Legitimate Secret

The ACLU is asking an appeals court to compel the government to take a sensical approach to secrecy surrounding the drone program in Pakistan and allow the public a fair fight under the FOIA.

While former Secretary of State John Kerry and President Obama have both acknowledged the program – in interviews and Google Plus hangouts respectively, the government continues to maintain that the program has not been officially acknowledged and refuses to process the ACLU’s FOIA request on the subject. Problematically, “Under FOIA, courts have held that information is ‘officially acknowledged’ only when the government has made public, on-the-record statements that specifically confirm it.”

Taking the Alice-in-Wonderland secrecy a step further, in response to the ACLU’s challenge, the government has even redacted “a court ruling against government secrecy (yes, really), hiding from the public its reasons for why the ruling should remain secret. Then, it also hid its reasons for appealing that ruling to a higher court.”

Image credit: ACLU

The ACLU is asking the court, in effect, for a fair shot at the documents: “The ACLU has endeavored to respond to the government’s arguments as comprehensively as possible. However, almost 60% of the publicly filed version of the government’s opening brief is redacted, and the government has eliminated every reference to the district court ruling that it challenges from its brief and the opinion itself. It is therefore possible that the ACLU misconstrued or failed to identify some of the government’s arguments.”

Judge Tells FBI 17 Years Too Long to Wait for FOIA Response, Make it Three

US District Court Judge Gladys Kessler told the FBI it couldn’t make a FOIA requester wait until 2034 for a response to a FOIA request. The request, filed by George Washington University professor and documentary filmmaker Nina Seavey, seeks agency records “pertaining surveillance of anti-war and civil rights activists in the 1960s and 1970s.” Seavey is specifically interested in records focusing on “the ‘ripple effects’ of the May 4, 1970, shooting deaths of four students by national guardsmen at Kent State University in Ohio.”

The FBI, which says it has “a policy of processing and releasing large requests at a pace of 500 pages a month” and estimated Seavey’s request would require processing 110,000 pages, argued that it would take 17 years to complete processing. The DOJ went further, arguing that “going faster than 500 pages a month would disrupt the agency’s workflow and create the possibility of a few massive requests effectively shutting down the rest of the their FOIA operation.”

Judge Kessler shot the DOJ down, saying “The agency’s desire for administrative convenience is simply not a valid justification for telling Professor Seavey that she must wait decades for the documents she needs to complete her work.” Kessler, who also called the information the FBI provided to justify why it could only process 500 pages a month “unilluminating,” ordered the agency to process 2,850 pages a month, meaning Seavey will get the records within three years.

The FBI’s “Sex Deviate Program”

The FBI recently lost a FOIA suit to the Mattachine Society of Washington over an Eisenhower-era program, known as the “Sex Deviate Program,” to fire gay employees. (NPR has more on the program here.) The Executive Order that served as pretext for firing gay employees is EO 10450, signed in 1953, “and ostensibly gave the heads of federal agencies the ability to investigate and dismiss government employees if they posed a risk to national security.” The firing was already taking place, but the EO made the practice legal on “the basis of sexual perversion.”

The FBI responded to the initial FOIA by producing 552 pages and withholding 583. The Mattachine Society, suspicious of the relatively few responsive documents identified for a 40 year program, sued for a more thorough search. (The FBI’s FOIA search is notoriously and intentionally bad, more on the Ryan Shapiro suit that breaks down just how bad here.)

The Court found the FBI’s search was not adequate. Specifically, the Court found “The FBI’s response fails to demonstrate that their search was reasonably calculated to uncover all relevant documents. The locations searched and search techniques employed by the FBI, as outlined in the Second Hardy Declaration, are sufficient, but the limited nature of the terms used, and the complete failure to search for documents related to Warren E. Burger, are wholly insufficient.” The Court also found that the bureau did not properly invoke exemptions 6 and 7(c).

FOIA Suit for FBI Records on Roger Ailes

Gizmodo is suing the FBI under the FOIA for records the bureau has on ousted Fox News head, Roger Ailes. Gizmodo filed a FOIA request after Ailes’ May 18 death, but the FBI didn’t respond in that statutory 20-day time period. The complaint was filed in the US District Court for the Southern District of New York. A FOIA tip for those filing requests for FBI files on people who’ve died: always include an obituary – no matter how well known the death.

TBT Pick – Prelude to Iguala: “Heavy-handed police tactics” used against Ayotzinapa students in 2011

This week’s #tbt pick is a 2015 posting showing US Ambassador to Mexico, Earl Anthony Wayne, said that “evidence of heavy-handed police tactics” was “strong and disconcerting” after a 2011 clash with student protestors from Ayotzinapa normal school left two youths and a gas station employee dead and several others wounded, according to a declassified cable from the U.S. Embassy in Mexico City. Authorities in the Mexican state of Guerrero “reacted defensively and insensitively by blaming the victims and denying any responsibility” for their part in what the Embassy cable called a “chaotic student protest” in which “both police and protestors resorted to violent tactics.”

The 2011 Embassy document describes how “about 500” students from Ayotzinapa and allied organizations blocked a tollbooth along a federal highway near the city of Chilpancingo and demanded a meeting with Guerrero governor Angel Aguirre Rivero to discuss deteriorating conditions at the state-funded school. Both state and federal police participated in the ensuing confrontation.

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FCC Stonewalling FOIA Requests on Net Neutrality Rollbacks: FRINFORMSUM 7/27/2017

July 27, 2017

FCC Says No Written Documentation on Claimed DDoS Attack that Crashed Public Comments System during Net Neutrality Controversy

The Federal Communications Commission (FCC) is in Unredacted’s hot seat again for the second week in a row concerning its responses to FOIA requests on proposed net neutrality rollbacks.

This time the FCC is under fire for telling a FOIA requester seeking information on an alleged DDoS attack the agency claimed disrupted its online public comment system that there were no responsive documents to the FOIA request because the agency’s “initial analysis on the day of the attack ‘did not result in written documentation.'” The alleged attack came after the FCC chair, Ajit Pai, proposed to “dismantle net neutrality rules” – rules that he’s previously said were a response to “‘hypothetical harms and hysterical prophecies of doom’ and that there was no real problem to solve” – and HBO’s John Oliver encouraged the public to comment on the proposed changes.

Gizmodo filed a FOIA request concerning the alleged attack on May 22, specifically requesting documents related to public comments made by FCC Chief Information Officer David Bray about the agency’s analysis. The agency released 16 pages and withheld 209 more in full – with cited exemptions running the gamut from trade secrets to personal privacy, including an exemption protecting medical files. (Even if there is personal information in responsive records, FOIA mandates that agencies release all segregable portions of documents.)

Amazingly, the FCC also claimed that “IT staff have confirmed there are no records responsive” to portions of the request concerning the analysis of Bray’s statements, going on to say “The analysis referred to stemmed from real time observation and feedback by Commission IT staff and did not result in written documentation.”

Senator Ron Wyden (D-Ore.) said “the FCC’s response to the FoIA request raised ‘legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline.’”

The FCC is also facing a FOIA lawsuit brought by American Oversight, which filed suit after the agency failed to respond to FOIA requests for “records related to net neutrality, including the calendar entries for Pai and his advisors.”

Last week the FCC incorrectly claimed that reviewing net neutrality complaints in response to a FOIA request was “too burdensome.”

NARA Releases Controversial CIA Records Schedule, Doesn’t Address Concerns or Pause Approval

In response to public outcry from the National Security Archive and others, the U.S. National Archives (NARA) has released the CIA’s controversial proposed records schedule that, if approved, would let the agency begin destroying a large number of potentially important documents, as well as NARA’s own appraisal of the schedule. But NARA did not address the critical concerns or pause the approval as requested.

The records slated for destruction include classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.” A letter raising these issues and requesting NARA pause its approval signed by the National Security Archive, OpenTheGovernment, Defending Rights & Dissent, and Demand Progress is available here.

NARA instead notes that it is “in the final stages of the records scheduling process with CIA to authorize the disposal after 30 years of various categories of administrative and program records.” Questions about the schedule and NARA’s appraisal should be directed to records.management@nara.gov.

Can a Sitting President be Indicted?

A 56-page memo won by The New York Times in response to a FOIA request to the National Archives “amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.” The memo – written in 1998 by Ronald Rotunda, a consultant for Ken Starr’s independent counsel investigating President Bill Clinton – found: “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”

Times’ reporter Charlie Savage notes, “Other prosecutors working for Mr. Starr developed a draft indictment of Mr. Clinton, which The Times has also requested be made public. The National Archives has not processed that file to determine whether it is exempt from disclosure under grand-jury secrecy rules.”

DC FOIA Suit Seeks Autopsy Report of Putin Aide

Mike Eckel, a senior correspondent for Radio Free Europe/Radio Liberty, is suing D.C.’s Office of the Chief Medical Exam officer in the D.C. Superior Court for failing to turn over an autopsy report of former Putin aide, Mikhail Lesin. Lesin was found dead in a D.C. hotel in November 2015 after an alleged feud with “Yuri Kovalchuk – the main shareholder of Bank Rossiya, which is closely tied to Putin.” Eckel’s FOIA suit also seeks correspondence between the medical examiner’s office, the FBI, and the State Department concerning Lesin’s death.

Buzzfeed’s investigative news team has an explosive four-part series on extrajudicial Kremlin-linked assassinations here: Poison in the System; From Russia With Blood; The Man Who Knew Too Much; and The Secrets of The Spy in the Bag.

FOIA Helps Reveal NSA, FBI Spying Violations

Memos obtained through a FOIA lawsuit brought by the ACLU show that the National Security Agency and the FBI “violated specific civil liberty protections during the Obama administration by improperly searching and disseminating raw intelligence on Americans or failing to promptly delete unauthorized intercepts.” The memos chronicle violations reported to the Foreign Intelligence Surveillance Court and the DOJ’s national security division between 2009 and 2016.

The NSA says the “missteps” account for less than one percent of “taskings,” but The Hill reviewed the memos, along with NSA IG reports, and found “more than 90 incidents where violations specifically cited an impact on Americans. Many incidents involved multiple persons, multiple violations or extended periods of time.”

The Hill also found that “The new documents show that the NSA has, on occasion, exempted itself from its legal obligation to destroy all domestic communications that were improperly intercepted” through the creation of “destruction waivers,” even though the agency found “significant violation” of such waivers in 2012.

Timely Read on 1980’s October Surprise  

MuckRock’s Emma Best has an interesting read on a declassified CIA memo, the Iranian hostage crisis, and the 1980 presidential election. Best summarizes the import of the memo well, noting: “While the memo doesn’t confirm the Reagan campaign’s collusion, it does prove a shared goal between the Iranians and the Reagan campaign – the defeat of President Carter. It also matches the timeline of allegations as well as the other known facts. That there appears to be no mention of it in the Task Force Report which is widely cited as discrediting the October Surprise is significant. The memo also addresses long standing objections to the October Surprise allegations by discussing Khomeini’s indifference to the identity of the next POTUS as opposed to his desire to see the current administration defeated.”

JFK Assassination Records

NARA began releasing JFK assassination records online this week. “This set of 3,810 documents is the first to be processed for release, and includes FBI and CIA records—441 documents previously withheld in full and 3,369 documents previously released with portions redacted. In some cases, only the previously redacted pages of documents will be released.”

TBT Pick: Kissinger to Ford – “Smash” Rumsfeld

This week’s #tbt pick details declassified telcons showing conflict during the Ford administration over, among other things, arms control, détente, and leaks. Senior Analyst Bill Burr says of the declassified transcripts, “These telcons show Kissinger losing his authority at the White House, trying to protect U.S.-Soviet détente from conservative attacks while waging Cold War in the Third World, trying to crack down on leaks, and maintaining ties with the disgraced former President Richard Nixon.” One telcon records Kissinger lamenting to President Ford about leaks on Angola, “almost every day I am in there crying” about them.

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CIA Overclassification Jeopardizes Hmong Veterans’ Fight for Military Burial

July 20, 2017

CIA Overclassification Jeopardizes Hmong Veterans’ Fight for Military Burial

Journalist James Eli Shiffer has a must-read piece in the Minneapolis StarTribune on Hmong veterans who fought for the United States during the Vietnam War and are currently fighting for the right to be buried with “military honors in a national cemetery.” But the CIA is refusing to declassify documents about the Agency’s proxy secret army, “or even acknowledge that they exist” – and, in the process, denying Hmong veterans the paperwork they need to be buried with military honors.

The CIA’s official history on CIA and Surrogate Warfare in Laos, published in redacted form in 2009, admits that it commanded many Hmong soldiers to fight in Vietnam, yet the CIA continues to Glomar – neither confirm nor deny – FOIA requesters seeking the names of those on the agency payroll, arguing it would endanger sources and methods.

Shiffer notes that this indignity towards “thousands of other Lao and Hmong veterans demonstrates a human cost of the runaway system of classification that perpetuates federal secrecy.” (Shiffer also has a good companion article with Matt DeLong on “What you need to know about how government secrets are made.”)

U.S. Rep. Tim Walz said of the CIA’s decision, “How in the hell is our safety at stake by trying to release those names or at least telling us they don’t have them?”

Even though a 2009 Executive Order says no official secret can remain classified forever – and even though the existence of the Hmong soldiers has already been declassified by the Agency – National Security Archive director Tom Blanton says in practice, “All it takes is one person at CIA to say, ‘Wait a second, that Hmong army, that was a covert operation.’”

The end result is the Hmong veterans are left in limbo. “A box of records might exist, perhaps in the CIA headquarters or the vast warehouse of the National Archives, that, once opened, could document what everyone already knows to be true.”

Shiffer’s article also gives a good summary of the issues facing the National Declassification Center. Of the multiple agency page-by-page equity reviews of the historical records housed at the NDC, director Sheryl Shenberger says, “Sometimes seriously it is literally one paragraph that’s stopping 80 pages from being released.”

FCC Incorrectly Says Reviewing Net Neutrality Complaints in Response to FOIA “Too Burdensome”

Of overturning net neutrality rules, Federal Communications Chairman Ajit Pai has said that “net neutrality rules were a response to ‘hypothetical harms and hysterical prophecies of doom’ and that there was no real problem to solve.”

The National Hispanic Council argues that the release of the 47,000 complaints at issue in their FOIA request will likely contradict these assertions. But the FCC is stonewalling their release, saying that reviewing the more than 40,000 complaints about overturning net neutrality rules it has received since June 2015 would be “too burdensome.”

The FCC’s claim that reviewing the 47,000 complaints would be unreasonably burdensome is wrong. The Justice Department’s own guidance makes clear that reviewing a large number of records does not, in and of itself, make a request burdensome. The key issue is whether or not the requester has worded the FOIA request to enable the FOIA officer to easily determine what records are sought. In this instance, the FOIA requester has done precisely that.

Case law also supports the requester’s right to ask an agency to conduct a time-consuming search provided the records are well-defined. In Shapiro v. Cent. Intelligence Agency, 170 F. Supp. 3d 147, 154 (D.D.C. 2016), the court found, “Regardless of how onerous it might be to locate them, there can be no dispute about which items are being requested.”

White House Military Office Paying $130,000 a Month for Trump Tower Lease

A FOIA request filed by the Wall Street Journal and released by the General Services Administration shows that the White House Military Office – which provides military support for White House functions and is charged with carrying the “nuclear football” –  took out a $2.39 million lease to rent a unit in Trump Tower from April 11, 2017, to September 30, 2018. This figure does not include the money Secret Service, which is a component of the Department of Homeland Security, spends protecting the president’s property (the agency’s 2018 budget requests an additional $25.7 million to secure the tower.)

Trump, perhaps unaware of the expense irrespective of his presence at his New York home, has not visited the tower since inauguration, repeatedly citing cost as the reason; “Going back is very expensive for the country.”

Mar-a-Lago Records to be Released in September

The Department of Homeland Security will release the visitor logs for President Trump’s Mar-a-Lago resort by September 8, according to a court order filed on July 14, 2017, by federal judge Katherine Polk Failla.

The order is in response to a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW).

The government has until the end of September 2017 to file declarations concerning the White House visitor logs; DHS claims there are no such records for Trump Tower since the President did not visit the property during the time period covered by the request.

Access to the Obama visitor logs helped break a number of news stories, including on the influence of lobbyists. One story revealed that then-CEO of Exxon, Rex Tillerson, visited the Obama White House at least 20 times in 2014 to advocate against Russia sanctions. In another example, the logs raised questions about the clout of high tech firms, particularly Google, in the Obama administration; one article on “Google’s Remarkably Close Relationship With the Obama White House” showed that Google lobbyist Johanna Shelton visited the White House no fewer than 128 times, far more than her peers from other tech companies, and that “Between January 2009 and October 2015, Google staffers gathered at the White House on 427 separate occasions.”

CIA Files at Risk

The CIA is positioned to begin destroying a large number of potentially important documents, including classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.”

As reported in the Daily Beast, the National Archives has tentatively approved a CIA records retention schedule to destroy information that is more than 30 years old. In addition to the files listed above, the Agency is also attempting to destroy files related to CIA investigations into alleged unauthorized releases of classified information (which the Agency is attempting to change from a permanent to temporary designation).

The National Security Archive, with OpenTheGovernment, Defending Rights & Dissent, and Demand Progress submitted comments to NARA acting director of records appraisal and agency assistant, Margaret Hawkens, requesting her agency do just that, and “reconsider its pending approval of the CIA’s proposed schedule, N1- 263-13-1, until NARA can better assure the public that records of permanent historic value will not be allowed to be destroyed by the CIA.”

A by-no-means-thorough list of the CIA’s destruction of records includes:

This also isn’t the first time the CIA has submitted records management and records schedule plans that ring alarm bells. In 2016 the Agency – after public outcry – was forced to withdraw its plan to destroy agency emails of all except its top 22 employees.

FOIA Federal Advisory Committee

The FOIA federal advisory committee met today (video available here, transcript to be posted in 30 days), with a presentation by National Archives chief records officer Laurence Brewer and updates from the three subcommittees. Of note in today’s meeting was committee members expressing concern that the Office of Management and Budget has yet to act on the recommendation that it update its outdated (from 1987!) FOIA fee guidelines to all agencies on when and how they can charge fees, which is also missing a key word.

$350,000 FOIA Settlement to National Security Archive Spurred CIA IG Investigation

blistering 2008 Central Intelligence Agency legal settlement of $350,000 to the National Security Archive’s pro bono lawyers, paid after losing a Freedom of Information Act case, led to the opening of an Inspector General investigation to review whether the CIA violated “policy and federal law” with respect to the FOIA.

The IG report, released in response to a FOIA request filed by Jason Leopold, reviews an anonymous allegation by a CIA employee of FOIA “missteps” at the Agency.  The IG report investigated how the Agency treated National Security Archive FOIA requests, including multiple reversals –some “on its own initiative” and some “reversed by the court several times” on whether the Archive should be treated as a news media organization, and pay fewer FOIA fees.  This CIA FOIA mismanagement caused the CIA “great confusion,” a large settlement bill, and a tongue lashing by DC District Judge Gladys Kessler.

Mellon Foundation Helps Stand Up Email Preservation Task Force

The Andrew W. Mellon Foundation is helping stand up an international task force to develop a framework to address challenges preserving email, a subject near and dear to the National Security Archive. The Foundation has also produced a short video – drawing on Archive resources – to demonstrate how email preservation was critical in allowing historians understand the Iran-Contra Affair, “one of history’s first scandals involving electronic correspondence.” Despite its importance, as Kristen Ratanatharathorn notes, “rigorous cataloguing of email communication remains the exception, not the rule. Instead, those trying to understand the recent historical record are, too often, left feeling the way many of us do with our personal inboxes: searching in vain for that one elusive message.”

Contact information for those interested in getting involved in the task force can be found here.

TBT Pick – Israel Crosses the Threshold II

Today’s #tbt pick is a 2014 posting from our Nuclear Vault on the Nixon administration debates during the emergence of the Israeli Nuclear Program.  Included are documents on the DOD’s Paul Warnke warning in early 1969 that the Israeli Nuclear Program is “the single most dangerous phenomenon in an area dangerous enough without nuclear weapons.”

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