The debate over a presidential pardon for Edward Snowden intensified after the House Intelligence Committee sent President Obama a “startling” September 15 letter that called Snowden a criminal and argued that a pardon would “severely undermine America’s intelligence institutions and core principles.” The letter, which was roundly criticized for perpetuating “numerous false statements and misrepresentations,” and the ensuing debate, is adroitly summarized and analyzed by Steven Aftergood (who also has an interesting read on President Clinton’s 2001 pardon of Samuel Morison, a Navy intelligence analyst who was convicted under the Espionage Act in 1985 for leaking classified satellite imagery to Jane’s Defence Weekly).
The September 15 House letter was accompanied by a three-page unclassified executive summary on Snowden’s disclosures that argues, among other things, Snowden was not a whistleblower but “was, and remains, a serial exaggerator and fabricator.” The letter also references the Intelligence Community’s still-classified damage assessment of a portion of the documents leaked by Snowden.
Several high-profile damage assessments of classified information leaks have been declassified by the IC, and may shed light on the Snowden assessment. The National Security Archive obtained the CIA’s 1987 damage assessment of Jonathan Pollard; MuckRock posted the Edward Lee Howard damage assessment; the Aldrich Ames damage assessment is available here; and Robert Hanssen’s here.
Aftergood’s analysis of the pardon debate also points out that, with its letter, the House Intelligence Committee missed an opportunity to assess its own role in the Snowden leaks. Daniel Schuman, policy director at Demand Progress, argues that if the Committee had “held up a mirror,” it would have seen that congressional reform is needed to ensure that the “cycle of revelation, scandal, and failure” does not repeat itself. Demand Progress, R Street, Freedom Works, and the Electronic Frontier Foundation published a bipartisan white paper last week that would be an excellent road-map for the committee’s self-evaluation. The paper lays out realistic, actionable reforms that could be taken to strengthen congressional oversight of the IC, including the establishment of “secure mechanisms for whistleblowers to talk to members of Congress” and the creation of a congressional whistleblower ombudsman. (As Nate Jones pointed out last week, it also contains important improvements for the declassification of congressional records.)
The 7th Circuit Court of Appeals ruled in favor of the Reporters Committee for Freedom of the Press in its quest to unseal the 1942 Chicago Tribune grand jury transcripts from a Department of Justice effort to prosecute the paper for publishing classified government information, which is the only time the government has attempted to prosecute the mainstream press under the Espionage Act of 1917. In 1942 the Tribune published a series of stories, based on leaked information, inferring that the U.S. broke a secret Japanese code that significantly assisted the U.S. Navy in winning the Battle of Midway. The National Security Archive joined the filing – with senior Archivist John Prados submitting an affidavit.
Tom Steinberg of CIVICIST recently – and correctly – argued that former White House Office of Information and Regulatory Affairs Administrator Cass Sunstein’s calls for less input transparency (roughly defined as policy discussions) and more output transparency (roughly defined as regulatory information people can use in their daily lives) misses the mark on what kind of information the government should make public. Sunstein has been on the receiving end of criticism from the National Security Archive and others in recent years for his backwards stance on transparency: in 2014 he criticized an uncontroversial, bipartisan, bicameral FOIA reform bill – that eventually died – that aimed to curb FOIA’s oft-abused Exemption 5 (which exists to protect “input transparency” and remains one of the most abused FOIA exemptions around), and recently told a packed house at Columbia School of Journalism’s FOIA @ 50 conference that input transparency is “often a bad idea, certainly isn’t a great idea.”
Nate Jones recently penned a rebuttal to some of these arguments, including highlighting just a few important news stories made possible by “input” transparency – like emails from Flint, Michigan that exposed both the cost-driven decisions not to add corrosion controls to Flint water supply, and the cover-up to hide the grave mistake, and an email from the State Department’s Press Secretary to the Secretary of State boasting of how the Department successfully “planted” questions on 60 Minutes. Jones’s rebuttal also cites the must-read defense of transparency authored by Gary Bass, Danielle Brian, and Norman Eisen.Archivist of the United States David Ferriero sent the FOIA Federal Advisory Committee’s recommendations on updating outdated FOIA fee guidance to the Office of Management and Budget. The Archivist’s letter follows the committee’s April 19 vote to recommend that OMB update it’s three-decade-old guidance that is currently missing a key word.
U.S. District Court John McConnell, Jr. recently ordered the Drug Enforcement Administration (DEA) to release thousands of pages of evidence from one of the largest prescription drug trials in American history in response to a FOIA lawsuit brought by Providence journalist Philip Eil. Eil filed a FOIA request in 2012 with the DOJ’s Executive Office of U.S. Attorneys for the federal trial evidence used to convict Dr. Paul Volkman, deemed by the DOJ to be the “largest physician dispenser of oxycodone in the United States from 2003 to 2005,” and who received four consecutive life sentences as a result of the trial. The DOJ transferred the request to the DEA eight months after receiving Eil’s request, at which point the DEA “began to review 15,000 pages and over time processed portions of them, releasing about 1600 pages to Eil and redacting much of the information under” FOIA Exemption 7. Eil was forced to file suit over the egregious withholdings, and while Judge McConnell’s ruling is “a ringing endorsement of the public’s right to know and the importance of an open judicial process,” Eil should never have had to wage a dogged, four-year fight for the documents in the first place. Hopefully the ruling will encourage the DEA and other agencies to fulfill their obligations under the FOIA after receiving a request, not after being sued.
The National Security Agency has released a 72-page monograph on nearly 100-year-old SIGINT information. Many thanks to Matthew Aid for highlighting “Issues in British and American Signals Intelligence, 1919-1932,” which “provides an excellent overview of the relative importance of SIGINT during World War I.”
The Archive’s Peter Kornbluh has written an opinion piece for the Washington Post on “Why the Obama administration is giving old state secrets to Latin American allies.” Kornbluh argues that, “Alongside the traditional instruments of statecraft, the Obama administration has developed an entirely new tool: declassifying decades-old secrets of state to share with other governments and their societies. President Obama has used this declassification diplomacy to mend fences with other countries, advance the cause of human rights and even redress the dark history of Washington’s support for repression abroad. Allies are grateful and historians are delighted. And given the depth and range of still-secret U.S. Cold War records, declassified diplomacy has the potential to go much, much further.” Read the rest here.
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[Ed. Note: Pinch Hitting again for Lauren this week. Will do my best!]
This week, the National Security Archive joined over thirty organizations calling for strengthening congressional oversight of executive branch intelligence activities. The strategy and tactics for this strengthening are laid out in an excellent bipartisan white paper drafted by Demand Progress, The Electronic Frontier Foundation, R Street, and FreedomWorks. The white paper argues that the best, most realistic method to achieve this reform is to update the rules of the House Permanent Select Committee on Intelligence (HPSCI) at the outset of the 115th Congress.
Read the white paper for a briefing on the abundance of achievable rules changes that the House could make to increase intelligence oversight. I want to flag four of the paper’s reforms that are near and dear to the Archive, and should be pushed by all historians and document hounds.
•Regularly—and no less frequently than every two years—oversee declassification reviews of closed-session transcripts and publish them;
• Establish a process to review and process historical records for declassification;
• After 25 years has elapsed, apply the procedures outlined in the Executive Order on Declassification to the Congressional Record and classified legislative histories; and
• Publish current and historical reports on Committee activities online.
For more on Secret Sessions, see Unredacted’s So What Does Congress Talk About During Its Secret Sessions?
The Government Accountability Office has released a report on FOIA litigation costs, which included several startling facts. First, GAO reported that the DOJ, responsible for “oversee[ing] agencies’ compliance with FOIA requirements,” does “not track any expenses related to FOIA lawsuits” –as their case management systems apparently “were not designed” to do so. (Seventeen agencies could provide GAO with this information.) As such, GAO was forced to use other, public data to complete its study, including data from the indispensable FOIA Project.
According to the report, there were 1,672 Freedom of Information Act (FOIA) lawsuits between 2009 and 2014. Of these, GAO identified 112 where the plaintiff substantially prevailed. (It’s important to note that just because a plaintiff does not “substantially prevail” does not mean they did not “win;” very often, agencies, realizing their position is untenable, agree to release documents after they are sued but before a judgement is made.
According to the report, “For fiscal years 2009 through 2014,  agencies collectively reported costs totaling $144 million for all of the FOIA lawsuits that they defended.” And if you read the report closely, it appears likely that this number is an underestimation by the GAO.
So, to summarize: If someone at DOJ had decided that these 112 cases were fiscally or morally indefensible and simply released the information when it was requested, rather than fighting and losing a lawsuit before releasing the documents anyway, taxpayers’ coffers would be at least $144 million dollars fuller.
This week DOJ published its Template for Agency FOIA Regulations. They will need a thorough scrub from the requester community to ensure that the recommended language complies with the law and is in step with the President’s and Attorney General’s guidance on FOIA.
On first blush there appear to be major problems with the DOJ’s section on FOIA fees, which diverges far from the principles recommended by the Federal FOIA Advisory Committee in April, 2016. From my reading, the DOJ’s guidance appears to present fees as a cudgel to deter FOIA requests, out of step with the Presumption of Openness. The Template presents an overly strict definition on “news media,” not stipulating that online-only sources qualify; they do not recognise that FOIA fees cover less than one percent of the reported FOIA cost; and they do not advise that agencies may use their administrative discretion (rather than a formal fee waiver) to decide not to charge FOIA fees when in the interest of the United States Government.
It would be a great tragedy if agencies updated their regulations (as required by the FOIA Improvement Act) to actually inhibit the public’s right to know.
Troublingly, according to Adam Marshall, two agencies have already updated their FOIA regulations without providing for public comment.
A “partial release.” It’s important to remember that when a DOJ or other Obama official cites a “91 percent whole or in part” FOIA release rate, this, and millions of pages like it, is counted as a “release in part.” The government also does not count requests denied over fees, referrals, “no records” responses, and requests “improper for other reasons” in this dubious statistic.
Here is an index of some of Secretary of Defense Donald Rumsfeld’s meetings in 2003. It’s unclear to me what exactly the “tapes” refer to. All are FOIA or MDRable…
In theory. Astonishingly, the ODNI makes the claim that it has “no documents” related to any of the widely reported March, April, and May 2011 National Security Council meetings where the potential location of Osama bin Laden was discussed. Either the ODNI FOIA shop is incompetent (though the FOIA response signatory, Jennifer Hudson, assures us that additional searches were conducted “to verify the accuracy” of the denial), or the US government has successfully snubbed its nose at the public’s right to know, and conspired to put these documents behind the reach of FOIA –-probably by transferring ODNI documents to the CIA, which can claim the “Operational Files Exemption” to hide them forever. The legality of this transfer is certainly legally dubious. I wonder if IContheRecord will be willing to explain why it cannot find documents about this critical moment in history.
And some exciting news! Mark your calendars for November 2, at 3:00 ET. I’ll be doing an Ask Me Anything on Reddit, talking about my new book on Able Archer 83, the National Security Archive, FOIA, secrets, and anything else!
Finally, here’s a #TBT to one of my favorites, Acoustic Kitty.
Why does it take the USG Nearly Three Years to Review A Map? The FBI and Clinton; and Journalists “Against Transparency” FRINFORMSUM 9/9/2016
[Ed. Note: I’m pinch hitting for Lauren this week while she is on vacation. I’ll do my best!]
This week Matthew Yglesias of Vox.com wrote an eyebrow raising, if ill conceived piece, entitled “Against Transparency” advocating that the public should no longer have access to executive branch emails. Fortunately, the openness community was quick to thoroughly explain why the public’s right to use FOIA to request government email is critical to maintain.
Here is my rebuttal for the National Security Archive, which shows that many of his claims are ahistorical and inaccurate.
CJ Ciaramella was the first to explain that there already is an oft abused FOIA exemption that already protects the very type of records which Yglesias argued needed to be protected.
And Michael Morisy wrote an excellent piece for Muckrock explaining why many of Yglesias’s ideas about FOIA were misconceptions. Here’s my favorite line: ” If you read any accountability journalism, it’s amazing how often emails received through public records requests and the Freedom of Information Act provide a pivotal role. If anything, stories based on public records stories tend to be the antidote to the ‘hot take’ culture that Yglesias worries is corrupting good government.”
After Yglesias’s piece, Kevin Drum of Mother Jones wrote an article taking aim at FOIA, claiming that it “is not that she’s [Hillary Clinton’s] done anything especially wrong, but that a story can last forever if there’s a constant stream of new revelations. That’s what’s happened over the past four years. Between Benghazi committees and Judicial Watch’s anti-Hillary jihad, Clinton’s emails have been steadily dripped out practically monthly, even though there’s never been any compelling reason for it.” Of course, Hillary Clinton’s obstruction of the Freedom of Information Act and Federal Records act was especially wrong (more below) and the “compelling reason” for the release rate was a judicial order, because the State Department’s proposed FOIA release schedule was glacially slow (State currently has pending FOIA requests over ten years old –page 31).
Fortunately, as these attacks on FOIA keep popping up, there is a 20 page go-to rebuttal explaining “Why Critics of Transparency Are Wrong,” written by Gary Bass, Danielle Brian, and Norman Eisen. I guess we’ll have to keep it on file.
Here’s a fun one: The Associated Press’s Ted Bridis filed a FOIA for “media leaks investigation.” Got a doc about a plumbing report.
The response to Bridis reminds me of the time I filed a FOIA for dox on “Operation RYaN” (while working on my book on the 1983 Able Archer nuclear War Scare) and got a document from DIA saying “I approve [of some random] operation, Ryan.
The federal government has taken almost three years to declassify this simple map of Iraq. The reason: The FOIA Referral Black Hole. Someone at DOD believed it was appropriate to send it over to CIA for a review rather than make the simple decision to release it himself. There really are multitudes of simple processing fixes (like this) and erroneous processing decisions we can eliminate (like this) that can make FOIA operate much more efficiently before beginning to tackle the deeper problems such as funding, etc.
Some Clinton news: In a transparent move, the FBI released her investigatory 302 file, which is an interesting read, especially from a Federal Records Act / FOIA perspective. Here is the best summary from that perspective that I’ve found. As OpentheGovernment.org’s Patrice McDermett aptly concludes, “It was irresponsible of state to let her do it…I know it’s difficult to manage the head of your agency and tell her she can’t do something. But, the attorneys should have told her she can’t do this.”
In another memo to employees, FBI Director Comey stated that the case to indict Clintion “was not a cliff-hanger.” But as Marcy Wheeler reminds us, scope of the FBI investigation did not cover FOIA or Federal Records Act transgressions –the transgressions which the NS Archive considers to be the most serious. Maybe that would have been “the cliffhanger.”
And, the Icing on top: This email from Clinton’s predecessor as SecState Colin Powell sent to the email address email@example.com shows that evading public records laws at State was a bipartisan endeavor:
However, there is a real danger. If it is public that you have a BlackBerry and it it government and you are using it, government or not, to do business, it may become an official record and subject to the law. Reading about the President’s BB rules this morning, it sounds like it won’t be as useful as it used to be. Be very careful. I got around it all by not saying much and not using systems that captured the data. [Typos in the origional email.]
The public’s right to know.
A In real danger indeed.
A couple quickhits from TheMemoryHole2: Material from the Justice Dept’s FOIA Litigation Seminar and Material from the Justice Dept’s Advanced FOIA Seminar. Let me know in the comments and twitter what’s important in these. Do they comply with the improved law? What about fees if an agency misses its 20 day deadline? Exemption Five as discretionary?
And your #tbt. Thirty eight years ago yesterday Bulgarian Dissident Georgi Markov was killed by a poisonous umbrella on Waterloo bridge.
In a widely circulated article for Vox.com entitled “Against Transparency: Government Official’s Email Should be Private, Just Like Their Phone Calls,” Matthew Yglesias writes that because of the frequency of digital communication by government officials, “Treating email as public by default rather than private like phone calls does not serve the public interest.” He did not mention that the Freedom of Information Act is now based upon “Presumption of Openness” that requires all executive branch records to be subject to release unless they qualify for one of nine** FOIA exemptions.
Yglesias is wrong on many of his arguments beginning with his hazy recap of the 1787 Constitutional Convention. He implies that no “complete and accurate record” exists to bolster his claims that transparency harms effective deliberation. But this is contrary to the rather voluminous existent record of the Convention showing how the framers thought and the justifications which they cited. Also factually incorrect is his assertion that phone calls are inherently “private.” Dean Acheson documented his conversations; they’re available on the Truman Library’s website. Eisenhower’s Secretary of State Christian Herter documented his as well. The National Security Archive, after a decades-long fight, has won the release of more than 16,700 Kissinger Telcons, transcripts of his telephone calls.
His argument that “Email isn’t mail” –along with being incorrect– is also not novel. It is the exact argument made by the Reagan Administration to the National Security Archive as it attempted to delete all all traces of its emails before turning the keys to the White House over to the H.W. Bush Administration in January 1989. Attempting to justify deletion of the email, the responsible official at NARA told the National Security Archive that federal emails were akin to telephone messages slips, not worthy for preservation. Fortunately, for all journalists not named Yglesias, U.S. District Court judge Barrington D. Parker rejected this assertion, ruled for the Archive and against Reagan’s acting Attorney General John Bolton (yes, that one), and granted the restraining order that preserved the Reagan Administration’s emails from deletion. After years of legal battles with both Democratic and Republican administrations, the National Security Archive eventually won the preservation of several hundred thousand White House emails from the Reagan presidency, nearly a half million from the Bush-41 term, 32 million from Clinton, and an estimated 220 million from Bush-43. Our settlement with the Obama administration ensures that all of his White House emails (along with Blackberry messages) will also be preserved and per the Presidential Records Act, will be available for FOIA requests as early as five years after he leaves office.
So, to be clear, Yglesias’s argument is not a new, provocative idea. There has been much discussion about the topic, and there is clear law and court precedent that emails (and text messages, and Slack messages, and Gchats) are firmly established federal records. It’s the law of the land. In fact, the US National Archives is currently completing work to ensure that each and every federal agency has a system in place by December 2016 to “manage all email records in an accessible electronic format” –so that they can more effectively be preserved and released in response to FOIA requests.
Yglesias’s second point, echoed from Cass Sunstein in a speech he delivered at a Columbia University celebration of FOIA @50 is that the status quo of preserving emails as federal records “serves as a deterrent to frankness and honesty.” Sunstein has used this argument to try and create a dubious distinction between “output” and “input” transparency. Sunstein lauds the government’s release of information it chooses , but criticizes attempts to make public information that is inconvenient for government employees, including policy discussions. But as National Security Archive director Tom Blanton pointed out to Sunstein at the event (video at the 50′ mark), a great irony is that Samantha Power who is married to Cass Sunstein, won the Pulitzer Prize for a study based “input transparency.” Power’s 2003 groundbreaking history A Problem from Hell, was based largely based on FOIA requests about “input” policy decisions that she and other National Security Archive staff filed. Power’s book specifically criticizes the intransigence of US agencies, noting the need for “congressional inquiries with the power to subpoena documents and to summon US officials of all ranks in the executive and legislative branches,” as it was nearly impossible to obtain “meaningful disclosure” about the Rwandan genocide through the FOIA process.
What Yglesias did not write is that there is already a FOIA exemption that protects what he terms “input information.” The majority of the documents about the US role during the Rwandan genocide whose secrecy Power bemoaned remain to this day hidden by Exemption Five of FOIA, which allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public. As CJ Ciaramella explains in his excellent rebuttal to Yglesias,
Exemption b(5) of the FOIA, known as the “deliberative process” exemption, was added so bureaucrats could have frank discussions of policy decisions outside of the public eye. Those concerns are also why Congress and many state legislatures are wholly exempt from public records requests.
And, as any frequent FOIA requester will tell you, exemption b(5) is also wildly abused by government officials to redact anything embarrassing or trivial they do not want disclosed. In fact, it’s known among disappointed requesters as the “withhold it because you want to” exemption. In 2013, the Obama administration applied exemption b(5) to 13 percent of all the FOIA requests it processed that year.
Part of the recently passed FOIA Improvement Act of 2016 included a 25-year limit on withholding such “predecisional” documents. In a FOIA lawsuit filed by the National Security Archive in 2012, the CIA successfully argued in court that a 30-year-old internal history of the Bay of Pigs invasion was “predecisional” and exempt from disclosure under exemption b(5).
So much for chilling effects.
The House version of the FOIA bill, which did not pass, had even better language on Exemption Five reform which would have protected proper deliberative conversations while doing a better job prohibiting its widespread abuse (documented here, be sure to check the comments as well).
But beyond not –ahem– explaining the current situation or laws on the books, Yglesias is also wrong about his assumption that public officials will always find ways to avoid public records requests and laws. The fact is that almost nothing happens within the federal government without a record of it. Very frequently this record is preserved in email. And in most cases, the public –which funds the government– should have access to this record.
I can also speak about this from a personal perspective. For the past two years I’ve served on the Federal FOIA Advisory Committee, a group of half federal employees half outsiders who work to make the FOIA better. At the end of last year’s term, we unanimously published a report on the lack of effective oversight of FOIA, and formally recommended for OMB to reissue its outdated guidance on FOIA fees. As a member of this federal committee, I am careful to treat every email I write as if it will someday be made public. And I can say (and I think my colleagues that dealt with me can say about me!) that it has not chilled my outspokenness, willingness to rethink issues, ability to brainstorm, or truthfulness at all. If anything, realizing that the record I am creating is (probably) a federal record paid for by taxpayers makes the care I give to the emails (even the brief ones that Yglesias says that people should not care about) more effective. From my perspective at my small role as a federal participant I can say that in no way would making emails private have a positive effect on how the FOIA Advisory Committee or the federal government works.
While very few people (unfortunately) are interested in the emails of the FOIA Federal Advisory Committee, the benefits of access to other emails –which were unmentioned in Yglesias’s piece– are obvious.
Here are just a few news stories made possible by emails released in response to federal and state records requests:
*Emails from Flint, Michigan exposing both the cost-driven decisions not to add corrosion controls to Flint water supply, and the cover-up to hide the grave mistake.
*An email from the State Department’s Press Secretary to the Secretary of State boasting of how the Department successfully “planted” questions on 60 Minutes.
*Emails showing that USAID hoped long FOIA delays would soften backlash to its “Fake Cuban Twitter” program.
*Emails revealing that the Department of Homeland Security is regularly monitoring the activities of Black Lives Matter protesters.
*Emails documenting how the Department of Justice successfully lobbied to kill the 2014 FOIA Reform Act.
*Phone Transcripts (which are indeed covered by FOIA) showing Ferguson police had instituted a no-fly zone over the town to specially block news helicopters. (h/t to Ted Bridis and CJ Ciaramella)
*Emails showing how Chris Christie and his staff clogged the George Washington Bridge.
*Racist emails which caused the Los Angeles County Sheriff to resign. (h/t CJ Ciaramella)
Clinton emails showing “that Washington is more Veep than House of Cards.” (A good article by Matt Yglesias.)
And the following are from Michael Morisy’s excellent rebuttal at Muckrock:
* Emails showing close connections and communications between government officials and the insurance industry they’re charged with regulating. (h/t David Sirota)
*Emails demonstrating how the Egg Lobby conspired to destroy a vegan competitor.
*Emails on why the CIA spied on Senate staffers, for which John Brennan apologized. (h/t Jason Leopold)
*Emails showing how Coca-Cola helped steer the CDC to push for regulations more favorable to the soda industry.
*Emails about UC Davis’s attempt to erase its history of pepper spraying protesters.
*And emails describing how officials timed releasing information related to child safety for when it was politically expedient.
Yglesias’s attack on the public’s access to its government’s emails is just the latest in a percolation of “attention-grabbing assertion[s] that excessive openness and transparency are one of the causes of our country’s governance woes.” Fortunately, Gary Bass, Danielle Brian, and Norman Eisen have authored a definitive paper debunking these regurgitating myths.
“Transparency,” the authors argue (including email transparency I would underline), “helps an open society solve problems before they become crises – and at its best, avoids those problems in the first place. It also provides the public with a better understanding of who to blame when problems arise and government fails, and who to praise when things go well. That is why open government initiatives have grown over the past half century. Done properly, transparency makes governing better and less likely to be corrupt.”
I take no issue with Sunstein’s and Yglesias’s calls for more “output disclosure” –disclosure of all types of the very valuable data held by the government. But for the most part, the Obama administration is pretty good about giving the public access to the data that it wants to give out. The beauty and importance of the Freedom of Information Act and the emails covered by it, is that the public has a fighting chance to get the information that citizens need, and that government employees often wish to hide.
If you’re against that, you really are “against transparency.”
**There are actually closer to 300 FOIA exemptions. Statutory FOIA exemptions have run amok.
DOJ Still Hawks Misleading FOIA Stats, FOIA Shows DOJ Lied to SCOTUS on Immigration – Again, and More: FRINFORMSUM 9/1/2016
Tom Susman, a member of the FOIA Advisory Committee, emailed the heads of the Justice Department’s Office of Information Policy (OIP) and Office of Government Information Services (OGIS) on the discrepancy between the misleading 91 percent FOIA release rate commonly cited by OIP – and repeated by the rest of the government – and the more accurate release rate calculated by the Archive and others of between 50 and 60 percent. The National Security Archive has long drawn attention to OIP’s misleading stats, which it calculates by counting nearly entirely redacted documents as successful partial releases (see above for an example), excluding requests denied over fees, referrals, “no records” responses, and requests “improper for other reasons.” Neither OGIS nor OIP have publicly responded to Susman’s email. When the White House, DOJ, or others cite a 91 percent “success statistic” their aim is to present a view to the public that FOIA is working 91 percent of the time. Anyone that has looked at the stats – including the blanket denials, redactions, decades long waits – or has filed a FOIA request, knows that this “statistic” is far from the truth. A better track for the administration would be to candidly acknowledge the problems facing FOIA and work openly to fix them.
The Freedom of Information Act has won the release of information showing that the Justice Department provided the Supreme Court inaccurate information in a 2003 immigration case – Demore v. Kim – concerning the government’s policy of denying bail to immigrants imprisoned and awaiting deportation after being convicted of a crime. In a 5-4 vote the Court ruled in favor of the government, upholding a “blanket policy of denying bail” in such cases. The 2003 court ruling, citing government data, said that the average detention time of four months “is too short to trigger a constitutional right to a hearing to argue for bail.” After the ACLU filed a FOIA request for information on how the government reached the four-month figure, however, the Justice Department’s Executive Office for Immigration Review found the average detention time was over a year. Acting Solicitor General Ian Gershengorn sent a letter to the Court on Friday alerting it to the “significant errors,” and that the Court may wish to amend its opinion.
This is the second time the Justice Department has presented the Court inaccurate information in an immigration case. In 2012 Elena Kagan’s Office of the Solicitor General admitted “it had inaccurately asserted in a 2009 case, Nken v. Holder, that officials routinely ‘facilitate’ the return to the U.S. of deported aliens who later win their immigration appeals.”
Nancy Morawetz of NYU’s Immigrant Rights Clinic says part of the problem in both cases is that the Solicitor General can submit information directly to the Supreme Court, and this information “isn’t tested through the adversary process of discovery and cross-examination that occurs in the lower courts” – an issue that goes beyond immigration cases.
In 2013 Solicitor General Donald Verrilli made misleading statements before the Supreme Court in Clapper v. Amnesty International about the National Security Agency’s (NSA) warrantless surveillance practices. Verrilli erroneously argued that defendants were notified whenever information used against them was obtained pursuant to Section 702 of the FISA Amendments Act of 2008. While the DOJ is now –belatedly– informing defendants when evidence used against them was obtained by warrantless surveillance, it wasn’t doing so at the time of the Clapper case. Verrilli also argued that Section 702 surveillance was done directly on foreign suspects, whereas it was actually interpreted by the NSA to allow the inclusion of wholly-domestic communications when a foreign suspect’s identifier, such as an email address, was mentioned in a communication.
Daniel Schuman recently published a blog on an important question – what happens to Vice President Joe Biden’s Senate office documents after he leaves office? Are they subject to FOIA or the Presidential Records Act? The Congressional Research Service notes that “[T]he Vice President has discretion to determine which of his records qualify as presidential records under the PRA…The PRA does not explicitly define vice presidential records, but the record-preservation policies governing the Vice President’s records have prompted controversy.” Dick Cheney is alleged to have wiped his Senate office computers clean before he left office, arguing that the Vice President is alone responsible for determining what is considered a vice presidential record – an argument the court agreed with.
Reporters Committee for Freedom of the Press has released the results of its 11-question survey on journalists’ opinions about a “Release to One, Release to All” FOIA policy. Adam Marshall summarizes that, “While a quarter of respondents supported the policy unconditionally, almost 60% support it only with conditions, such as a delay period. Only 13 out of more than 100 respondents who self-identified as journalists do not support the policy at all.” Fear of being “scooped” has long been cited as one of the leading reasons journalists might oppose such a policy, but the study revealed that many doubted “access to records requested under FOIA alone would enable other reporters to scoop a story.”
The National Security Archive’s position is that “the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole.” The Archive has long been open to compromise, however, allowing for the possibility of a “release to one, release to all” method which provides for the online posting of FOIA-processed records with a short, built-in delay. The Department of State, probably the government’s best online reading room, posts its FOIA releases quarterly.
The Nation Magazine, providing some historical context to Hillary Clinton’s email fiasco, recently highlighted the National Security Archive’s battle to save millions of White House emails, starting with the Reagan Administration. Greg Grandin notes that, “Just as the Reagan presidency was about to come to an end, the National Security Archive… sued to prevent the administration from deleting roughly 7 million e-mails. This was the beginning of bringing the digital dominion under the sovereignty of the Freedom of Information Act and the National Archive and Records Administration, creating the public oversight that Hillary Clinton, in setting up her private server, apparently tried to bypass.” Read more about our efforts to save White House emails here, here, and here.
The State Department has declassified documents on the “legendary Tony Poe” – the CIA officer who conducted field operations in Thailand, Cambodia, and Laos and is widely (and controversially) cited as the basis for Marlon Brando’s Colonel Kurtz in Francis Ford Coppola’s Apocalypse Now. According to John Prados’s must-read biography of Poe for Unredacted, Poe would “cut off the ears of dead enemies, which he kept in a plastic bag.” When Poe thought he had enough, he would send reports – with ears stapled to them – to the Vientiane Embassy, resulting in “bushels of ears at headquarters.” The declassified record on Poe remains anemic, but State’s release should make it harder for the CIA to hide documents on Poe going forward.
The Berlin Center for Cold War Studies published a terrific article analyzing some of the documents available in the Archive’s Cyber Vault (updated every Wednesday). One of the documents highlighted is “President Ronald Reagan’s National Security Decision Directive #145 of 17 December 1984. Here, Reagan explicitly declared the protection of ‘automated information systems’ to be an executive matter. This has since become a ‘vital element of the operational effectiveness of the national security activities of the government and of military combat readiness.’” The article also opines that for many Cold War historians, working with the Archive’s documents is “a rite of passage.”
As the National Park Service celebrates its centennial, FOIA requests show that problems with visitors violating park rules are on the rise – “In July alone, law enforcement rangers handled more than 11,000 incidents at the 10 most visited national parks.” Most cited problems include “illegal camping, vandalism, theft of resources, wildlife harassment.” This behavior, and the resources needed to address it, comes as the service faces a $12 billion budget cut.
This week’s #tbt pick is chosen with the recent release of the CIA’s 19 October 1973 biographical sketch of Australian Prime Minister Gough Whitlam in mind. This week’s tbt pick is a 2014 blog post highlighting declassified Henry Kissinger telephone conversations that depict a more complicated relationship with the man Kissinger once called a “bastard.” Whitlam was dismissed by the Queen’s Governor in 1975 – a move Whitlam later inferred was supported by the CIA. Several years after Whitlam’s dismissal, Christopher Boyce, an American contractor affiliated with the CIA who spent a quarter-century in prison for selling secrets to the Soviets, claimed the agency played a central role in what was effectively a coup to remove Whitlam from power. Boyce, echoed by investigative journalist John Pilger and Pulitzer Prize-nominated journalist Jonathan Kwitny, argued Whitlam’s removal was primarily over US concerns Whitlam would withdraw Australia from the Pine Gap Agreement – a pact that allowed the US to maintain a military base in central Australia.
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The Department of State has declassified documents confirming the activities of Tony Poe, aka Anthony Poshepny, a CIA officer (cryptonym allegedly “UPIN,” cover allegedly “Air Operations Officer, Continental Air Services”) who conducted field operations in Thailand, Cambodia, and most prominently Laos from the 1950s to 1974.
Poe is frequently cited as a basis for Colonel Kurtz, Marlon Brando’s character in Francis Ford Coppola’s Apocalypse Now, a CIA operative who –far removed from western influence– had “gone native” and was running his own army deep into the jungle of Indochina. Though both Poe and Coppola denied that he was the basis for Kurtz, the similarities are pronounced –and Poe was certainly one of the most remarkable, flamboyant, and grizzly operators employed by the CIA during American’s war in Vietnam, Laos and Cambodia.
According to John Prados’s must-read biography of Poe for Unredacted, Poe went to Laos in March 1961 to train the Hmong to fight against the Vietnamese Communists.
Hating paperwork and preferring the field, Po was content that a younger officer, Vincent Lawrence, served as base chief with himself as underling. He ran field missions with the Hmong partisans. After the Geneva Accords of 1962, which was to have removed all U.S. field operatives from the country, Lawrence and Po remained at Long Tieng anyway to coordinate with Vang Pao. Poshepny is said to have had shifting relations with Vang Pao and there were reportedly multiple incidents where the two almost came to blows or even drawn guns. Lawrence remained the head CIA man.
Poshepny had a checkered reputation with senior CIA officers for a number of reasons. One was that during the period of post-Geneva fictive neutrality, he reportedly continued to go out on field missions. During his career Po would be wounded about a dozen times, including losing some fingers to a booby-trap that killed a fellow officer. On another occasion he shouldered a wounded Hmong fighter and carried him about 30 km back to camp for the doctors to see him. His difficulties with Vang Pao gradually increased and created a second problem. His drinking also did not help.
With April 1964, when the Laotian operation went back into gear, came reports of Po paying bounties for severed heads and ears of alleged Pathet Lao guerrillas. When the CIA Station questioned his body counts, he told the partisans to cut off the ears of dead enemies, which he kept in a plastic bag. When Poshepny considered he had enough he forwarded them to Embassy Vientiane. “I used to staple them to the reports,” Po joked. “There were bushels of ears at headquarters.” He admits to “distributing” at least two. Another time a village that had shot at Po’s aircraft was threatened by the airdrop of a severed head. The outraged headman managed to get the tail number of the Air America aircraft and complained to Embassy Vientiane. The ambassador was forced to apologize to the villagers. “if you do everything according to the orders, you’d be in a straightjacket. You have to break the monotony sometimes,” Po is quoted as saying.
The recently declassified State Department cables rarely mention Poe, but they do provide official government corroboration of his activities. One 2003 cable describing a Laotian government relocation program describes the northern “Nam Yeu valley between Muang Meung and Huasai” as “a valley that during the Vietnam war era was the base of the ethnic Mien ‘secret army’ advised by the legendary Tony Poe[.]”
A second cable from December 1988 describes a visit to the U.S. embassy in Vientaiane by “a re-education camp releasee [after] nearly 13 years of detention in Sam Neua.” The walk-in reported rumors of U.S. prisoners –including airmen captured in Laos– being imprisoned in Vietnam as late as 1978. Before reporting this information about potential POWs to official US channels, the source first “sent this information by letter” to Tony Poe.
This is plausible. Tony Poe returned to Laos after retiring from the CIA in 1974. There, according to Prados’s account, he married a Laotian woman and worked “as a gentleman farmer for many years.”
A final document from 1976 makes brief mention of Poe as a reference for a Lao refugee attempting to immigrate to America. This is also plausible. After returning to California in the 1990s, Tony Poe continued to maintain deep ties with the Laotian community. According to the Wall Street Journal:
[Tony Poe] lived with the hill tribes, drank with them, fought with them, nearly died with them. Most important, the Laotians say: Long after American street gangs replaced CIA commando units as the proving ground for tough hill-tribe youths, Mr. Poshepny still cares. He counsels Laotian kids on joining the Marines, helps finance Laotian weddings and plots strategy for winning official recognition in Washington for Laotian veterans.
A few years ago, he fought a deportation order for one of his men convicted of opium possession in Sacramento, Calif. The man’s military contributions, Mr. Poshepny testified in court, should outweigh his opium rap. The judge agreed.
Tony Poe died on June 27, 2003. According to his funeral announcement he was awarded two CIA stars, the agency’s highest honor, and two Purple Hearts.
The official U.S. record of one of its most prominent paramilitary officers remains extremely attenuated, primarily hidden by the CIA’s abused and enveloping Operational Files Exemption.1 The Department of State’s acknowledgement, however, of the “legendary Tony Poe” and his “secret army” will likely make it more difficult to continue to hide documents about his actions from the public.
1. A search of the CIA, State, and FBI FOIA reading rooms turned up no additional information on Poshepny. The CIA’s Study in Intelligence’s Undercover Armies: CIA and Surrogate Warfare in Laos provides good context of the Agency’s operations but is highly redacted. It is possible some of the redactions hide Poe’s activities.↩
Baltimore Police Use of StingRays Draws Ire, US Debated Secretly Storing Nukes in Iceland, and More: FRINFORMSUM 8/18/2016
Civil liberties groups are asking the Federal Communications Commission (FCC) to investigate the Baltimore Police Department’s use of cellphone tracking devices, commonly known as StingRays after the name of one popular model. The complaint comes “on the heels of a scathing Justice Department investigation that found that the police department routinely violated the civil rights of the city’s black residents,” and argues the use of StingRays continues in that vein, disproportionately targeting black residents. Steven Renderos from the Center for Media Justice notes that “The Baltimore Police Department uses cellphone interceptors at an astronomically higher rate than other law enforcement agencies, and mostly does so in black neighborhoods.”
The civil liberties groups argue that the Communications Act requires the Baltimore Police to obtain a license to operate the devices; an anonymous FCC official, on the other hand, said local law enforcement do not need a license, but could “not give a clear explanation of why a license is not needed.”
Last September the Justice Department required all federal law enforcement to obtain a warrant prior to using StingRay devices, but the directive does not apply to state and local law enforcement. In March of this year, however, “the Maryland Court of Special Appeals held that the Baltimore police must obtain a probable-cause warrant to use a cell site simulator and disclose the intended use to a judge.”A recently declassified letter from a U.S. ambassador to Iceland in August 1960, published this week by the National Security Archive, shows that U.S. government officials debated whether to deploy nuclear weapons in Iceland – and whether to tell Iceland or not. The author of the recently released letter, U.S. Ambassador Tyler Thompson, argued against deployment, recognizing that Iceland’s ties to NATO and the Western security system were fragile, and that if Reykjavik learned about a secret deployment, it could leave NATO. Furthermore, a “dramatic row” could “be expected to have an unfortunate effect on our friends and allies, to affect adversely our interests as far as neutrals are concerned, and to provide a propaganda field day for our enemies.” The U.S. ultimately rejected the idea, but the revelation that internal discussions took place adds to public knowledge of the broader issue of U.S. nuclear deployments overseas (not to mention nuclear duplicity) during the Cold War.
Archival documents discovered by an Icelandic historian and published by the Archive also show that the United States had plans for at least one nuclear weapons storage site in Iceland if World War III were to break out.
A joint panel of Republicans on the House Armed Services, Intelligence and Appropriations committees have found that CENTCOM “regularly produced intelligence that distorted the results of the campaign against the Islamic State, suggesting that command leaders shaped analysis in a way that resulted in a more upbeat depiction of the war.” House Republicans began looking into the matter last summer after a civilian intelligence analyst complained that intelligence was being distorted. The Pentagon Inspector General is currently conducting a separate investigation into the matter.
Steve Aftergood reported this week on several noteworthy items, including highlighting the Defense Department’s publication of a new three volume manual that examines the “conditions under which U.S. military capabilities can be brought to bear in domestic civilian affairs.” Aftergood notes that “Except in cases of imminent loss of life or similar extremes, requests for military assistance are supposed to undergo a threshold review to establish their legality.”
Aftergood also posted the Defense Department’s Chemical and Biological Defense Program’s (CBPD) 2016 Annual Report to Congress, which he obtained through FOIA. Among the report’s highlights is the role CBDP funding provided in the Food and Drug Administration’s 2015 approval of a drug “to be used as a countermeasure against Yersinia pestis, the biological agent that causes bubonic plague.” The scope of CBDP’s research is expected to shrink, however, due to budget cuts.
Bowe Bergdahl’s lawyers have filed a complaint in his desertion case, saying that “the four-star general overseeing the soldier’s court-martial should be disqualified after he burned more than 100 letters related to the case.” The lawyers argue that on August 8 Gen. Robert B. Abrams told Bergdahl’s lawyers during an interview that he destroyed the documents, which “spanned the full spectrum of opinion” on Bergdah’s desertion. In their filing Bergdah’s lawyers say the damage is “irreparable” and insist that “The Army must find some other commander to ‘own and operate’ the military justice for this case.” A spokesperson for Forces Command gave no explanation why Gen. Abrams destroyed the documents and did not acknowledge the potential impact on the case, only saying that the defense’s filing was one of an “ongoing series of legal motions.”
Last week the Archive posted a selection of eight key White House and State Department records from the Obama administration’s release of previously secret documents on Argentina during the period of its “dirty war.” President Barack Obama promised that several additional releases would be made in the coming months. Among the records are memoranda of conversation between Carter and Argentine junta leader General Jorge Videla, as well as materials revealing Carter’s personal intervention in obtaining the release of renowned newspaper publisher Jacobo Timerman. The documents also include new evidence about the consternation of U.S. officials at former Secretary of State Henry Kissinger’s efforts to challenge Carter’s human rights policy which, in essence, sought to repudiate Kissinger’s previous embrace of military dictatorships in Latin America and elsewhere.
This week’s #tbt pick is chosen with the 25th anniversary of the August Coup – the attempt to overthrow Soviet President Mikhail Gorbachev – in mind. This week’s #tbt pick is a 2015 posting on Perestroika in the Soviet Union, and includes a transcript of the First Extraordinary Session of the Supreme Soviet of the Russian Federation, August 21, 1991, which “brings the reader into the halls of the legendary Russian White House, to the extraordinary session of the Supreme Soviet of the Russian Federation at the exact moment of the triumph of the democratic resistance to the August coup. The discussions show the resoluteness of the democratic opposition and the decisive role of the Soviet army, of which key units ultimately disobeyed orders and sided with the democratic forces.”
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