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FRINFORMSUM 4/24/2014: Courts Order the DOJ and CIA to Disclose Key National Security Docs and Demand Investigation into Potential FBI Misconduct in 9/11 Trial, and Much More.

April 24, 2014
Anwar Al-Awlaki, shown in 2008. Credit Muhammad ud-Deen, via Associated Press

Anwar Al-Awlaki, shown in 2008. Credit Muhammad ud-Deen, via Associated Press

A three judge federal appeals panel unanimously ordered the Justice Department to review its memo providing the legal justification for the targeted killing of American citizen, Anwar al-Awlaki, for declassification this week. The ruling, which stems from a FOIA lawsuit brought by the New York Times and the American Civil Liberties Union, argued that “[w]hatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.” As Archive FOIA Coordinator Nate Jones notes, the ruling will make it easier for FOIA requesters to fight Glomar and b(5) denials, and it will be more difficult for the Department of Justice to withhold its Office of Legal Counsel opinions in the future. However, “[t]he Obama administration had the opportunity to release this important binding legal justification itself –two and a half years ago. Instead, leaks, and ultimately the Second Circuit Court filled the void between the Obama administration’s Open Government pledges and its Secret Government reality.”

The Huffington Post's Ryan J. Reilly's TwitPic of all 10 unclassified opinions authored by DOJ's Office of Legal Counsel in 2013.

The Huffington Post’s Ryan J. Reilly’s TwitPic of all 10 *unclassified* opinions authored by DOJ’s Office of Legal Counsel in 2013.

Some argue that the Second Circuit Court’s ruling, which hinged on the selective disclosure of the DOJ White Paper, “will disincentivize any disclosure of secret legal rationales” and give this and future administrations good reason to reveal as little as possible about any programs they wish to cloak with FOIA exemptions. Others argue, however, that selective disclosure is “false transparency” that “serves as a release valve that allows the Executive to dodge any accountability, particularly in courts. So losing it — losing the release valve that permits President after President to string out any inquiry into these gross expansions of power — would be a good thing.”

The military judge presiding over the USS Cole bombing case has ordered the CIA to disclose details of its “black site” prisons to defense attorneys. Rejecting the government’s argument that the defense team does not have the authority to “double check the government’s work,” judge James C. Pohl instructed government prosecutors to provide “nine categories of closely guarded classified CIA information to the [defense] lawyers –including the names of agents, interrogators and names of medical personnel who worked at the so-called black sites.” The order comes while the CIA is fighting the release of the Senate Intelligence Committee’s report on its torture program, which includes details of its “black site” operations.

Pentagon-approved sketch of defendant Ramzi Bin al Shibh, center, at his pretrial hearing at the Guantánamo Bay U.S. Naval Base in Cuba, Monday, April 14, 2014.  JANET HAMLIN / ASSOCIATED PRESS

Pentagon-approved sketch of defendant Ramzi Bin al Shibh, center, at his pretrial hearing at the Guantánamo Bay Naval Base in Cuba, Monday, April 14, 2014. JANET HAMLIN / ASSOCIATED PRESS

Judge Pohl is also presiding over the trial of five Guantanamo Bay prisoners charged in the 9/11 attacks, which is currently on hold after Pohl ordered an investigation into the FBI’s alleged attempt to turn a member of the defense team into a bureau informant. The FBI filed legal documents this week stating that the bureau was not, at the very least, contacting the defense team in order to explore “the disclosure a 36-page manifesto of alleged Sept. 11 mastermind Khalid Sheikh Mohammed” to the Huffington Post earlier this year.

Yet another court case involving the FBI alleges that the bureau used no-fly list threats to coerce individuals to act as bureau informants in a “practice that borders on extortion.” Lawyers for Awais Sajjad, a legal permanent US resident, allege Sajjad was told by the FBI after learning he was on the no-fly list in 2012 that the bureau could secure him US citizenship if he agreed to spy on his local Muslim community in New York, reminding him the FBI “also had the power to decide who was on the no-fly list” while doing so.

A new intelligence directive bars most intelligence community employees from discussing “intelligence-related information” –classified or not– with members of the press. The directive, issued this March and first revealed publicly by Secrecy News’ Steven Aftergood this week, “does not distinguish between classified and unclassified intelligence information,” and states that if an employee’s contact with the media involves any unauthorized disclosure of classified information, the employee is potentially subject to criminal prosecution. The directive’s definition of “media” in this case is, unsurprisingly, expansive. According to Jack Shafer, who covers media news for Reuters, the directive “increases the insularity of the national security state, making the public less safe, not more. Until this directive was issued, intelligence community employees could provide subtext and context for the stories produced by the national security press without breaking the law. Starting now, every news story about the national security establishment that rates disfavor with the national security establishment — no matter how innocuous — will rate a full-bore investigation of sources by authorities.”

The Inspector General for the Director of National Intelligence reported that federal agencies are inconsistent in reporting crimes divulged by potential employees during polygraph tests. The report attributed the inconsistencies, which occurred while testing at least 3 percent of personnel between 2009 and 2012, to “breakdowns in government reporting procedures and poor advice from agency lawyers.” Currently, 5.1 million Americans are eligible for security clearances (which includes individuals that may be determined eligible for clearance due to the sensitivity of their positions and the potential need for immediate access to classified information, but may not have actual clearance until the need arises), with 3.1 million actively holding clearances.

POLITICO used the FOIA to obtain a 2012 letter from President George W. Bush to the National Archives and Records Administration that “could result in many of his official records becoming public faster than those of his predecessor, President Bill Clinton.” While his presidency was notorious for its secrecy, Bush’s letter establishes nine categories of documents cleared for release to the public, including “talking points on policy decisions, scheduling files and recommendations about whether to sign legislation.”

Secretary of State Kissinger meets with French President Valerie Giscard d'Estaing, over coffee and a plate of croissants, on 5 July 1974. The French government's support was critical to the success of the nuclear suppliers' project. Photo from Still Pictures Branch, National Archives, RG 59-BP, box 36.

Secretary of State Kissinger meets with French President Valerie Giscard d’Estaing on July 5, 1974. The French government’s support was critical to the success of the nuclear suppliers’ project. Photo from Still Pictures Branch, National Archives, RG 59-BP, box 36.

Newly declassified documents posted by the National Security Archive this week show Henry Kissinger played a highly influential -albeit slightly reluctant- role in establishing the Nuclear Suppliers Group (NSG) in the mid-1970s. According to the declassified documents, Kissinger was motivated equally by concern about nuclear proliferation and a desire to keep US officials from “charging around the world, like Don Quixote.”

Finally this week, our #tbt document pick is a December 2, 2002, memo on “Counter-Resistance Techniques” written by the Defense Department’s General Counsel, William J. Haynes II, and later approved by Secretary of Defense Rumsfeld. It sets out specific techniques for interrogation that could be used on detainees at Guantanamo. Rumsfeld’s handwritten note on the memo adds a caveat to his approval, asking “[h]owever, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” This document, along with 21 others, was published by the Archive in 2004.  The Department of Defense is still processing the National Security Archive’s FOIA request for the complete set of Rumsfeld “snowflakes.”

Only 4 hours?

Only 4 hours?

Happy FOIA-ing!

NARA Needs to Embrace Role as Declassification Transformer in its Open Gov Plan

April 23, 2014
Lots of classified documents in there...

Lots of classified documents in there…

The US National Archives has previewed an impressive overview of its 2014-2016 Open Government Plan.  Even better, it has vigorously welcomed public comment.  Its three flagship initiatives look to be especially transformative.  Kudos to the Archive for embracing the power of technology, open source, and crowd-sourcing to share its jewels with the widest possible audience.  

From the perspective of the National Security Archive, however, the Action Plan does have one glaring omission: a lack of attention to promoting expedient and efficient declassification and access to declassified documents.  

recent survey by the Society for Historians of American Foreign Relations shows further widespread desire for more of a NARA-led focus on promoting efficient and credible declassification.  Seventy percent of 784 researchers surveyed described the importance of declassified documents to historical research as “very important and indispensable,” another fourteen percent described declassified documents as “important and necessary.” Twenty eight percent of the respondents described the availability of declassified documents at NARA as “very worrisome” or “disappointing.”

One inclusion into the Action Plan that would have an immediate impact on the declassification process would be a formal adoption of the Director of National Intelligence James Clapper’s and DNI General Counsel Bob Litt’s instruction to declassify historic documents even when they may be technically “properly classified.”   

Director of National Intelligence General Counsel Robert S. Litt. “Not can we classify –but should we?”
Director of National Intelligence General Counsel Robert S. Litt. “Not can we classify –but should we?”

During a March 2014 Sunshine Week speech, Litt stated that those with classification and declassification authority must ask themselves “not can we classify, but should we?”  Litt pointed to Section 3.1 (d) of the Executive Order on Classification 13526, and claimed that declassifiers of historic documents should already be using this authority.  In practice, however, they are not. 

Section 3.1 (d) states: “In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified.  When such questions arise, they shall be referred to the agency head or the senior agency official.  That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”

This section has not been used nearly enough for the declassification of historic documents.  This lack of a “rational declassification process” has led to many embarrassing classification decisions (such as the continued classification of the History-101 fact that there were Jupiter missiles in Turkey during the Cuban Missile Crisis).  

The National Declassification Center’s disappointingly low 61% declassification rate of historic (25 years or older) documents is an embarrassing indicator of over-classification and under-reliance of the “public interest declassification clause” at NARA itself.

This extreme over-classification of historic records undermines the public’s trust in the system as a whole, and inhibits the public release of historically important information that does not require further protection to researchers.  

NARA’s Open Government Plan can remedy this problem by establishing a procedure so that declassifiers at NARA, including the National Declassification Center, can easily request that EO 13526 section 3.1 (d) be used to declassify technically “properly” classified information that is in the public interest and no longer needs protection.  

This will instill a spirit of openness, further establish NARA as a declassification leader, and guarantee that the Director of National Intelligence General Counsel’s instruction to ask “not can we classify but should we” is followed.  

Below are several more minor suggestions and one criticism of the NARA Open Government Plan from an Open Government advocate focused on improving the declassification of historic documents:

  • Going a step further than my previous suggestion.  The Information and Security Oversight Office should formalize the DNI and his general counsel’s instructions on “public interest declassification” in all of its classification and declassification trainings and assessments of agencies government-wide.
  • The Plan’s Crowdsourcing Tool Initiative should specifically mention and include documents declassified by the National Declassification Center.
  • The Plan’s Online Catalog Initiative should specifically mention publishing as much information online as possible (box level?) about the documents and collections declassified (and denied) by the National Declassification Center, even if those documents have not fully completed the NARA indexing process.
  • Again, the Plan’s digitization, citizen archivist, and wikipedia efforts should specifically mention the documents declassified by the National Declassification Center.
  • If implemented, the modernization of records initiative, especially the systematized capture of emails, will be a terrific success.
  • In its outreach and online content initiative NARA should again specifically mention records declassified by the National Declassification Center.
President says: "further referrals not required" but the agencies still do referrals...

President says: “further referrals not required” but the agencies still do referrals…

  • And the criticism:  NARA should consider modifying or scrapping its Referral Notification Tracking System. Referrals are the largest problem contributing to the years and decades-old age of many FOIA requests, so NARA should be lauded in its attempts to tackle the problem. However, NARA should be working to minimize or end the extremely inefficient referral (and consultation) process, rather than use resources to build another system that will further memorialize it.  Better solutions to fixing the referral black hole include working with agencies to complete non-referral agreements (some currently exist) so that a document can be reviewed by one set of eyes, rather than fourteen.  Another, even better, solution would be to embrace the President’s memorandum establishing the National Declassification Center that stated referral review of historic documents that do not contain WMD or sources and methods was no longer required.  Any referral reform that does not end or minimize the process of multiple re-reviews of the same document is not likely to lead to true referral improvement.
If not for NARA, 918 more overclassifications would still stand...

If not for NARA, 918 more overclassifications would still stand…

The National Archives is America’s largest repository of classified documents, and is also the institution best situated to force the enactment of President Obama’s Open Government classification reforms –described in both Open Government Partnership National Action Plans, his Executive order on Classification, and his Memo establishing procedures at the National Declassification Center.

NARA is also home to the Sunlight-promoting Office of Government Information Services, Information Security Oversight Office, and Interagency Security Classification Appeals panel –which overrules agency classification decisions in over 68 percent of its cases.
As an organization with such power and tools to enact transformative classification reform, it was disappointing to see such tepid declassification initiates in NARA’s Open Government Plan.
Fortunately, NARA has embraced the Sunshine and welcomed comments and suggestions on how it can improve its Open Government initiatives.  I hope it will heed the advice of others and myself and realize that the US National Archives has a major role to embrace in improving the declassificiaton system in America.

Two and a Half Years Later, DOJ Forced to “Confirm or Deny” Existence of Memo Justifying Drone Assassinations of Americans

April 22, 2014
"The Office of Legal Counsel neither confirms nor denies the existence of the document described in to (sic) your request, as the very fact of the existence or non existence of such records is itself classified."
“The Office of Legal Counsel neither confirms nor denies the existence of the document described in to (sic) your request, as the very fact of the existence or non existence of such records is itself classified.”

Almost two and a half years after the Department of Justice Office of Legal Counsel told the National Security Archive that it “neither confirms nor denies the existence of” the memorandum authorizing the lethal targeting of Anwar al-Awlaki, the Second Circuit Court of Appeals has unanimously rejected DOJ claims and ordered the agency to review the memo for release to New York Times and the American Civil Liberties Union.

The National Security Archive joined an amicus brief drafted by the Electronic Privacy Information Center in support of The Times and ACLU.

In January 2013, Federal Judge Colleen McMahon initially denied the release of this memo, but bemoaned the “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” she wrote.

This Court ruling overturning McMahon’s decision included two key passages that will impact future Freedom of Information Act litigation.  The Court struck a blow to the Department of Justice claim that any Office of Legal Counsel opinion can be withheld under the b(5) “inter-agency or intra-agency” communications exemption. (This exemption is sometimes called the “withhold it because you want to” exemption.)

The court rebutted the DOJ’s b(5) claim (pg 38), writing:

"The argument proves too much...We need not fear that OLC will lack for clients."
“The argument proves too much…We need not fear that OLC will lack for clients.”

In another important ongoing lawsuit related to the Office of Legal Counsel, the Center for Ethics and Responsibility in Washington is suing the Department of Justice to make all of its OLC opinions available.  CREW is using an underused provision of the FOIA that requires all executive branch agencies to make available to the public, “final opinions made in the adjudication of cases, and statements of policy and interpretation the agency has adopted.” OLC  opinions, as CREW’s Anne Weismann explains, fit squarely within both of these categories.   

Later in its decision, the Second Circuit court struck at the government’s ability to claim the “Glomar” neither confirm nor deny response, noting that some aspects of the current standard a plaintiff needs to meet to beat a Glomar argument  “mad[e] little sense.”  The opinion also noted that a “rigid application” of the requirement to identify an “official” disclosure in order to beat a government Glomar claim “may not be warranted in view of its questionable provenance.”

Despite this strike at the current Glomar standard, the Court did note that The Times and ACLU did meet the rigorous interpretation of it.  This  was largely because of multiple public comments by Attorney General Holder and CIA Director Brennan on target killing of Americans, and the DOJ’s official release –after a leak– of a “white paper” on drone strike authority making many of the same arguments in the OLC memo.

"A rigid application of it may not be warranted in view of its questionable provenance."
“A rigid application of it may not be warranted in view of its questionable provenance.”

The Court did redact many portions of this opinion at the DOJ’s request to “preserve its opportunities for further appellate review.”  The Court wrote that “in the event that our ruling…is not altered in any further appellate review, an unredacted version of this opinion, together with a redacted version of the OLC memorandum, will be filed.”  The memorandum will be redacted on b(1) national security and b(3) CIA Act grounds; not the b(5) deliberative process exemption.

The Appeals Court has issued a strong decision that will make it easier for FOIA requesters to fight Glomar and b(5) denials; it will also be more difficult for the Department of Justice to withhold OLC opinions.

Still, it is a bittersweet victory.  The Obama administration had the opportunity to release this important binding legal justification itself –two and a half years ago.  Instead, leaks, and ultimately the Second Circuit Court filled the void between the Obama administration’s Open Government pledges and its Secret Government reality.

 

The US Effort To Not Notify the Soviets about Able Archer, Reforger, or Autumn Forge 76 and 77

April 18, 2014
Tanks participating in the Reforger 83 "military movement"

Tanks participating in the Reforger 83 “military movement.”  From Air Man.

Immediately after the United States signed the Helsinki Final Act, the US State and Defense Departments spent considerable effort working to find a way not to notify the Soviets about NATO military exercises including Autumn Forge, Reforger, and Able Archer, skirting the key military exercise notification “Confidence Building Measures” procedure established in the Helsinki Accords by the Conference on Security and Cooperation in Europe in 1976.

According to recently declassified State Department cables, US Department of State and Defense political advisors believed that by describing Reforger as “a military movement” rather than a “maneuver,” the US would not be required to notify the Soviets under the terms of the Helsinki Accords.

This revelation is significant because in 1983 the Soviet military had an “an unprecedented [] reaction to Able Archer 83” and feared “a surprise NATO attack” during the Autumn Forge, Reforger, and Able Archer exercises.  The Soviets may have believed that multiple, non-routine elements Able Archer 83 potentially indicated an actual, rather than rehearsed nuclear release.

(These non-routine elements during Autumn Forge, Reforger, and Able Archer 83 included: a 170-flight, radio-silent air lift of 19,000 US soldiers to Europe, the shifting of commands from “Permanent War Headquarters to the Alternate War Headquarters,” the practice of “new nuclear weapons release procedures,” including consultations with cells in Washington and London, and the “sensitive, political issue” of numerous “slips of the tongue” in which B-52 sorties were referred to as nuclear “strikes.”)

A "military movement," certainly not a "maneuver!"

A “military movement,” certainly not a “maneuver!”

FOIA requests for cables about CSCE notification of Autumn Forge, Reforger, and Able Archer in 1983 have not yet been fulfilled, but the body of documentary evidence I have seen leads me to believe that it is unlikely that the US government reversed course from 1976 and notified the Soviets of their 40,000 troop military maneuver  movement culminating in a simulated nuclear release.

A soldier takes a break (in a gas mask) during the Reforger 83 "military movement" (not "maneuver!)"  From Air Man.

A soldier takes a break (in a gas mask) during the Reforger 83 “military movement” (not “maneuver”!) From Air Man.

If the US had adhered to the spirit of the Helsinki accords and notified the Soviet Union of the 1983 NATO military exercise, it would have likely done much to advance the Helsinki Final Act’s goal of “reducing the dangers of armed conflict and of misunderstanding or miscalculation of military activities”  –including “misunderstanding or miscalculating” a simulated nuclear release for an actual nuclear release.

It is also notable that the declassified text of the proposed press release for Autumn Forge 76 misleadingly describes Able Archer 77 as “ACE-wide command post exercise” –omitting that what the command posts were rehearsing were nuclear release procedures.

Another newly declassified cable (one of more than 300,000 from 1977 that were recently declassified–be sure to read Bill Burr’s terrific summary) includes text from a 1977 State Department Bureau of Intelligence and Research “background paper” on Confidence Building Measures.  The backgrounder almost bemoaned the Soviet’s “vigorous approach” to notification of military exercises, which the US and NATO were not mirroring.  The State Department seemed to believe that the Soviets were using Confidence Building Measures merely as a Helsinki Accords bargaining chip for an upcoming Conference on Security and Cooperation in Europe meeting in Belgrade, rather than a tool to genuinely reduce military tension.  

Of course, the Helsinki Accords were not a treaty, and as such, were non-binding.  The Soviet Union certainly also flouted provisions of the Accords.  Its poor record in honoring the civil rights portion of the Accords led to the creation of the powerful Moscow Helsinki Group, which monitored (especially Warsaw Pact) compliance.  

Unfortunately, we likely have a long time to wait for the 1983 State Department cables to be declassified.  Until then we will not know what role the Confidence Building Measures played during the Able Archer 83 nuclear war scare.

FRINFORMSUM 4/17/2014: NYPD to Shut Down Unit that Labeled Entire Mosques “Terrorism Enterprises,” the FBI Accused of Meddling in 9/11 Trial, Sen. Grassley Stands Up for Whistleblowers, and More.

April 17, 2014
Protesting the NYPD's Demographics Unit. Photo: Seth Wenig/AP

Protesting the NYPD’s Demographics Unit. Photo: Seth Wenig/AP

The New York Police Department is shutting down its Demographics Unit, which came under intense scrutiny for spying on Muslim neighborhoods and designating entire mosques “terrorism enterprises.” The “terrorism enterprises” label allowed the unit to collect the license plate numbers of every car in mosque parking lots, videotape worshipers, and record sermons using hidden microphones. The program was the brainchild of lawyer Lawrence Sanchez who worked for the NYPD while on the CIA payroll, began in 2003, and “never generated a lead.”

The Joint IED Defeat Organization’s (JIEDDO) Counter-IED Operations/Intelligence Integration Center (COIC) was recently investigated for “improper intelligence collection.” The COIC’s mission is to counter improvised bombs, but was investigated after the DOD’s inspector general received a hotline complaint that the unit “illegally or inappropriately collected info about U.S. persons” in 2011 and 2012. The DOD IG recently posted the investigation report’s title on its website, along with a note saying to file a FOIA request for a full copy of the report. A better idea, of course, would be to proactively post the document on the site.

A recent Washington Post article revealed more details about the FBI’s secret relationship with the Joint Special Operations Command overseas, specifically the bureau’s role in “hundreds of raids” in Iraq and Afghanistan. While some questioned whether participating in overseas counterterrorism programs was in the bureau’s best interest, others saw it was a “natural evolution” for the FBI’s Hostage and Rescue Team (HRT). According to the Post article, “[t]he relationship benefited both sides. JSOC used the FBI’s expertise in exploiting digital media and other materials to locate insurgents and detect plots, including any against the United States. The bureau’s agents, in turn, could preserve evidence and maintain a chain of custody should any suspect be transferred to the United States for trial.”

Pentagon-approved sketch of defendant Ramzi Bin al Shibh, center, at his pretrial hearing at the Guantánamo Bay U.S. Naval Base in Cuba, Monday, April 14, 2014.  JANET HAMLIN / ASSOCIATED PRESS

Pentagon-approved sketch of defendant Ramzi Bin al Shibh, center, at his pretrial hearing at the Guantánamo Bay U.S. Naval Base in Cuba, Monday, April 14, 2014. JANET HAMLIN / ASSOCIATED PRESS

Defense lawyers for five men accused of orchestrating the 9/11 attacks currently awaiting trial at Guantanamo argued that the FBI violated attorney-client confidentiality by attempting to recruit members of the defense security team –who have Top Secret clearance, advise the defense teams what information should be redacted from court filings, and “are privy to internal defense discussions and strategy”–as bureau informants. The judge, Army Col. James Pohl, agreed to look into the FBI’s conduct in order to determine how it will effect the trial.

The Senate Intelligence Committee is investigating how classified conclusions of its CIA torture report were leaked to McClatchy news. Last week McClatchy revealed several of the report’s conclusions, which, all told, “paint a picture of an intelligence agency that seemed intent on evading or misleading nearly all of its oversight mechanisms throughout the program.” Senate Intelligence Committee chairwoman Dianne Feinstein responded to the leak saying, “[i]f someone distributed any part of this classified report, they broke the law and should be prosecuted.”

Maj. Gen. Jeffrey Buchanan rejected Army Pfc. Chelsea Manning’s request for clemency this week, approving her 35-year sentence for leaking 250,000 diplomatic cables and 500,000 military documents to WikiLeaks. Manning’s lawyers are challenging the 35-year sentence and the six convictions under the Espionage Act of 1917, convictions that prompted one of Manning’s lawyers to argue, “the Espionage Act has essentially become a strict liability crime, that the only intent required is an intent to disclose.”

Senator Grassley commemorates the 25th anniversary of the Whistleblower Protection Act.

Senator Grassley commemorates the 25th anniversary of the Whistleblower Protection Act.

Senator Chuck Grassley delivered a speech on the 25th anniversary of the Whistleblower Protection Act on the floor of the Senate last week, laying out “a number of ways President Obama’s Insider Threat detection program threatened whistleblowers.”  Grassley also addressed the FBI’s refusal to explain if its Insider Threat Program “adequately distinguished insider threats and whistleblowers.” Grassley said that in response to his request for material, an FBI official told his staff “there was no need to worry about whistleblower communications.  He said whistleblowers had to register in order to be protected, and the Insider Threat Program would know to just avoid those people.” Grassley noted some of the obvious problems with this attitude later in his speech, saying “[a] federal employee has every right to make protected disclosures anonymously, whether at work or off the job.  Every member of this body should realize that without some safeguards, there is a chance their communications with whistleblowers may be viewed by the Executive Branch.”

The DATA Act, which would require agencies to report how they handle money, unanimously passed the Senate last Thursday. If enacted, the DATA Act would “mandate government-wide standards for federal spending data,” and require that information be placed online in fully searchable formats. The Senate and the House are expected to work speedily on approving identical versions of the bill, then giving President Obama the opportunity to sign this important legislation into law.

Marc Ambinder at The Week magazine took a closer look at the recently released “Holy Grail of Sept. 11th, 2001, documents: transcripts from the emergency conference calls initiated by the National Military Command Center.” The Pentagon release provides further details on spotty communication, the lack of Andrews fighters, and the activities of the three National Airborne Operation Center planes that day.

The Washington Post reported last week that the CIA helped publish and distribute “Doctor Zhivago” in the Soviet bloc in an effort to promote political unrest there. “Zhivago,” however, was just one of many cultural causes the CIA promoted. Voice of America recently revealed details on the agency’s Congress for Cultural Freedom, which tried to advance American ideology abroad during the 1950s by funding artistic endeavors, including Britain’s Encounter magazine, the Paris Review, and the animated film version of George Orwell’s Animal Farm. The Congress also “dumped millions” throughout the 1950s to subsidize NYC’s abstract expressionist movement abroad, including promoting the movement’s artists -like Jackson Pollack- who weren’t widely recognized in the US.

The Hughes Glomar Explorer.

The Hughes Glomar Explorer.

The latest volume of the State Department’s Foreign Relations of the United States (FRUS), National Security Policy: 1973-1976, contains 200 newly-declassified pages on Project AZORIAN and the Glomar Explorer, including new details on eccentric billionaire Howard Hughes’ role in the operation.

Finally this week, don’t miss the Archive’s #tbt document pick -a 2001 posting, entitled “Solidarity’s Comic Victory: Big or Too Big,” on the 1989 Polish Round Table Agreements. 

Happy FOIA-ing!

The CIA’s Declassified Torture Handbook: How to Create a “World of Fear, Terror, Anxiety, Dread.”

April 15, 2014
President Kennedy and President Joao Goulart on a state visit to Washington April 2, 1962, a year before the US supported a coup to overthrow him and began spreading the KUBARK manual across Latin America.

President Kennedy and President Joao Goulart on a state visit to Washington April 2, 1962, a year before the US supported a coup to overthrow him and began spreading the KUBARK manual across Latin America.

Senator Feinstein’s quest to declassify her committee’s report on the CIA’s post-9/11 torture program has increased attention on the agency’s illegal –and decades-old– interrogation techniques. Now, newly-declassified portions of the CIA’s infamous 1963 KUBARK manual, a comprehensive guide for teaching interrogators how to effectively create “a world of fear, terror, anxiety, [and] dread,” helps to further contextualize the agency’s long-standing interrogation practices.

The fear of Communist expansion into the Western Hemisphere after Fidel Castro’s 1959 victory in the Cuban Revolution was the geo-political background for the 1963 KUBARK manual. Castro’s victory not only encouraged the 1964 U.S.-supported overthrow of democratically elected Brazilian President Joao Goulart; it also encouraged the CIA to spread KUBARK across the continent to help prop up pro-U.S. governments. After the Brazilian coup, right-wing military leaders across Latin America began seizing control from democratically elected governments with US encouragement, School of the Americas degrees, and a copy of the KUBARK manual.

The Secret, 127-page KUBARK manual, first declassified (with redactions) in 1997 thanks to a Baltimore Sun FOIA request, is a comprehensive guide for training interrogators in obtaining intelligence from “resistant sources.” According to the National Security Archive’s 2004 posting, Prisoner Abuse: Patterns from the Past, KUBARK –a CIA cryptonym for itself– “describes the qualifications of a successful interrogator, and reviews the theory of non-coercive and coercive techniques for breaking a prisoner.”

The 1963 KUBARK Manual.

The 1963 KUBARK Manual.

The report contains veiled references to the use of electric shock, saying that when choosing an interrogation site “the electric current should be known in advance, so that transformers and other modifying devices will be on hand if needed.” The manual also notes “the threat of coercion usually weakens or destroys resistance more effectively than coercion itself. The threat to inflict pain, for example, can trigger fears more damaging than the immediate sensation of pain.” Under the subheading “Pain,” the manual’s guidelines discusses theories behind various thresholds of pain, and recommends that a subject’s “resistance is likelier to be sapped by pain which he seems to inflict upon himself” rather than by direct torture. According to Alfred McCoy, author of A Question of Torture, self-inflicted pain, like stress positions, “causes victims to feel responsible for their suffering and thus capitulate more readily to their torturers.”

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Introduction to the manual’s “Pain” section; part of the original 1997 release.

Now, thanks to a mandatory declassification review request (MDR) filed by MuckRock user Jeffrey Kaye, a less-redacted version of the KUBARK manual is available. Revelations from the new release include the CIA’s admission to doctoring detainees’ interrogations tapes, a practice it considered “effective” in making it seem as though the detainee had confessed, and using foreign intelligence services for detention and interrogation purposes. The references to foreign intelligence services mean that rendition is not a product of the post-9/11 world; it is a practice at least 50 years old. Supporting this, CIA ex-Deputy Counsel John Rizzo said in a recent Democracy Now interview that “[r]enditions were not a product of the post-9/11 era… renditions, in and of themselves, are actually a fairly well-established fact in American and world, actually, intelligence organizations.”

It was only after congressional committees began questioning the CIA’s interrogation techniques in Latin America in the early 1980s, particularly in Honduras, that the agency began to revise its practices, if only temporarily. The result of the congressional attention was an editing –by hand– of the CIA’s “Human Resource Exploitation” manual, based largely off of the earlier KUBARK manual, to alter passages that appeared to advocate coercion and stress techniques to be used on prisoners. CIA officials also attached a new prologue page to the manual stating: “The use of force, mental torture, threats, insults or exposure to inhumane treatment of any kind as an aid to interrogation is prohibited by law, both international and domestic; it is neither authorized nor condoned,” but with the caveat that forms of torture and coercive techniques “always require prior [headquarters] approval” first.

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At left, the 1985 prologue declaring torture illegal; at right, the CIA’s Abu Zubaydah interrogation photo.

Even though Feinstein’s report does not recommend any further inquiries into the CIA’s interrogation practices, I hope it will generate more resistance to torture than the CIA’s own secret 1985 handwritten changes have.

FRINFORMSUM 4/10/2014: Feinstein Asks WH to Declassify CIA torture Report instead of CIA, USAID’s Sham “Cuban Twitter” Account, the CIA’s Role in Publishing “Doctor Zhivago” in USSR during Cold War, and Much More.

April 10, 2014
Sen. Dianne Feinstein doesn't want the CIA to declassify her committee's torture report for obvious reasons. Photo: Bill Clark/CQ Roll Call

Sen. Dianne Feinstein doesn’t want the CIA to declassify her committee’s torture report for obvious reasons. Photo: Bill Clark/CQ Roll Call

Earlier this week, Senate Intelligence Committee chairwoman Dianne Feinstein asked the White House to oversee the declassification of her committee’s report on the CIA torture program rather than the CIA itself. The Senate Intelligence Committee voted last week to declassify portions of the report, which accuses the CIA of misleading the Senate about the program, with the condition that the executive branch redact information that compromises national security. In what the Senate and others have called a clear conflict of interest, however, the White House announced last week that the CIA would lead this declassification effort.

Secrecy News’ Steven Aftergood posits that the Public Interest Declassification Board (PIDB) could help in the declassification process if the White House accepted Feinstein’s request. The PIDB’s mandate is to “review and make recommendations to the President…with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.” The PIDB is made up of non-governmental personnel and does not have the authority to declassify the report on its own, but could provide support to the White House, which would be “unlikely to possess the detailed knowledge of the underlying records that would be needed to do so independently.”

The U.S. Agency for International Development (USAID) –overseen by the State Department and best known for delivering billions of dollars in humanitarian aid– secretly built a sham “Cuban Twitter” account to stir political unrest in the communist country. Documents obtained by the AP show the agency intended to build a large subscriber base through innocuous messages only to transition them to overtly political ones once the platform obtained enough followers. The messages would be meant to inspire ‘Cubans to organize “smart mobs” — mass gatherings called at a moment’s notice that might trigger a Cuban Spring, or, as one USAID document put it, “renegotiate the balance of power between the state and society.”’ USAID officials said the program had been “debated” by Congress, but wasn’t covert and therefore didn’t require the administration’s approval. Senate Judiciary Committee chair Senator Patrick Leahy, however, called the program “cockamamie,” and said that it had not been described adequately to Congress. A sham social media platform is only a drop in the bucket when compared to other sordid chapters in the USAID’s history, including: its Office of Public Safety’s role in training local police torture techniques in countries like Brazil and Uruguay; funding dictator Alberto Fujimori’s mass sterilization program in Peru; and secretly funding Russian oligarch Anatoly Chubais, “who oversaw the complete destruction of Russia’s social welfare system.”  

Soviet writer and poet Boris Pasternak near his home in the countryside outside Moscow on Oct. 23, 1958. (HAROLD K. MILKS/ASSOCIATED PRESS)

Soviet writer and poet Boris Pasternak near his home in the countryside outside Moscow on Oct. 23, 1958. (HAROLD K. MILKS/ASSOCIATED PRESS)

Declassified documents show the CIA played an instrumental role in publishing and distributing Boris Pasternak’s “Doctor Zhivago” in the Soviet Union in 1958 in an effort to stir political unrest. 130 newly declassified documents show the operation to publish the book was led by the CIA’s “Soviet Russia Division, monitored by CIA Director Allen Dulles and sanctioned by President Dwight D. Eisenhower’s Operations Coordinating Board.” One document notes, “[t]his book has great propaganda value, not only for its intrinsic message and thought-provoking nature, but also for the circumstances of its publication: we have the opportunity to make Soviet citizens wonder what is wrong with their government, when a fine literary work by the man acknowledged to be the greatest living Russian writer is not even available in his own country in his own language for his own people to read.”

The CIA has changed course –in at least one case– after a federal judge decided last month that the agency’s common practice of refusing to release electronic versions of its records might be illegal. IT expert Jeffrey Scudder sued the agency for refusing to release 419 Studies in Intelligence articles in electronic format in response to his FOIA request. Scudder contended that the CIA was frustrating his efforts to obtain the documents –and charging him double for doing so– by claiming the documents could only be released in paper form–ostensibly for security reasons– even though the documents were already in electronic format. After District Court judge Beryl Howell agreed with Scudder, writing “[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome,” the CIA and Scudder found a “creative” solution: putting PDF copies of the requested records on its website where they can be freely downloaded.

The State Department’s inspector general issued a “management alert” –the second in the agency’s 224-year history– over $6 billion in contracting money that can’t be accounted for. The alert cited “significant financial risk and . . . a lack of internal control.” Inspector General Steve Linick issued both this and the preceding management alert, which addressed “significant and recurring weaknesses in the Department of State Information System Security Program” in the wake of Chelsea Manning’s leaks.

United Nations Helicopter in Rwanda, circa September 1994. Photo from personal collection of Prudence Bushnell.

United Nations Helicopter in Rwanda, circa September 1994. Photo from personal collection of Prudence Bushnell.

Declassified documents show the Clinton administration refused to label the 1994 mass killings in Rwanda as a genocide. One State Department document read: “Be careful … Genocide finding could commit U.S.G. to actually ‘do something.’” Archivist Emily Willard spoke to Democracy Now!’s Amy Goodman earlier this week about this document and others, published as part of the Archive’s “Rwanda 20 Years Later” project. The Archive also published the complete series of daily and weekly situation reports written by UN peacekeepers in Rwanda at the time of the genocide as part of the project.

Government Attic recently posted the State Department’s September 2012 “Guide for Exemption from Automatic Declassification” to its website. The guide explains the State Department’s criteria for exempting documents that are 25 years old, 50 years old, and older –“information of permanent historical value”– from automatic declassification. The document does not disclose why some of the material “of permanent historical value” cannot be declassified.

Be sure to read the memo the National Security Archive gave to Associate Attorney General Tony West on the steps the DOJ needs to take to fix its sizable FOIA credibility gap. Hopefully AAG West reads it as well.

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Finally this week, don’t miss the Archive’s #tbt document pick -a 2004 posting on the declassification of the August 6, 2001, Presidential Daily Brief, “Bin Ladin Determined To Strike in US.”

Happy FOIA-ing!

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