Declassified Documents on Darfur Genocide Reveal Situation Nearly Identical to Current Atrocities
Map of Darfur from Human Rights Watch.
By Sarah Chaney Reichenbach
Tens of thousands of civilians are fleeing central Darfur as a result of attacks eerily similar to those committed over a decade ago in the west Sudanese state. The Archive’s Genocide Documentation Project continues to pry loose records on the 2003-2004 Darfur genocide, and the results of our targeted FOIA requests provide a basis for understanding the ongoing tragedy, and raise prescient questions about the need for intervention more than a decade later.
Marta Ruedas, a top United Nations humanitarian official in Sudan, recently said that she was “deeply concerned about the plight of more than 85,000 newly displaced civilians” as families flee from the escalating conflict in the Jebel Marra region of central Darfur. The forces of the Sudanese regime under President Omar al-Bashir, indicted by the International Criminal Court (ICC) on charges of genocide in March 2009, continue to carry out mass atrocities in the war-ravaged western region of Sudan. A 2015 Human Rights Watch report found Sudanese government forces committing extrajudicial killings, mass rapes, and torture of civilians.
The recent attacks are similar to those committed over a decade ago. The Darfur genocide began in 2003 and, despite international condemnations and sanctions, violence against the civilian populations from the Fur, Zaghawa, and Masaalit ethnic groups by Sudanese government forces and militias continues with few signs of abating.
Current reports of mass atrocity in Darfur should not come as a surprise to the U.S. government and the international community. The Genocide Documentation Project is in the process of collecting declassified government documentation pertinent to the Darfur genocide and there are reports of nearly identical atrocities from as early as 2003.
On December 10, 2003, one confidential cable from the American Embassy in Khartoum titled “Violence Escalating in Darfur,” reports:
Excerpt from December 11, 2003, cable warning of “Arabization” of Darfur.
The language used in the cable insinuates that ethnic cleansing of the African tribes in Darfur was a priority for the Government of Sudan.
The National Geospatial-Intelligence Agency (NGA) released satellite imagery to the Archive in 2006 that reveals how quickly the conflict escalated after these early warnings, and the amount of destruction it wrought within a matter of months. In an aerial photo from January 2004 a village in Darfur is labeled as “undamaged.” However, right beside it, an image captured in April 2004 shows the village has been completely destroyed.
Satellite imagery of a village in Darfur before and after attacks between January and April 2004.
Nearly a dozen similar images show how rapidly forces destroyed local villages, burning homes to the ground and displacing thousands. Imagery of the Kalma Internally Displaced Persons (IDP) Camp shows the growth of displaced families living in tents in the area, coinciding with the destruction of the Darfur villages.
Satellite imagery from July 2004 shows the rapid growth of IDPs in camps.
A March 6, 2004, confidential cable describing the Sudanese government’s proxy militia, the Jinjaweed, warns:
Excerpt from March 6, 2004 cable illustrating the Government of Sudan’s complicity in Darfur attacks.
Accounts from Darfur victims arriving in IDP camps continued to pour in. Village raids, executions, mass graves, rape, and torture became more commonplace. One March 7, 2004, cable from the town of Tawilah in North Darfur notes, “civilians were being massacred and young girls raped by the milita.” Civilians in the area were being denied medical care and only those who were physically able could flee to IDP camps. Another cable from May 11, 2004, stated 90 men were executed in Nyla, South Darfur, while others were hung “by their arms until amputation [was] necessary.” Throughout the summer of 2004, testimonies “revealed patterns of violence and abuse perpetrated primarily by [Jinjaweed] forces.”
It wasn’t until September 9, 2004, that U.S. Secretary of State Colin Powell declared the atrocities in Darfur a genocide during a hearing before the Senate Foreign Relations Committee.
Powell declares Darfur a genocide.
Since 2004, at least 300,000 people have been killed in the Darfur genocide. Documentation released to the Archive attests to longevity and severity of the crisis, and provides a solid foundation for advocates arguing for intervention 12 years later.
The Genocide Documentation Project, launched in January 2013 in partnership with the United States Holocaust Memorial Museum, explores the failures of the international community to prevent or effectively respond to past cases of genocide. Through detailed case studies, the project’s research seeks to inform international policies regarding the prevention of and response to genocide and mass atrocity. By examining the role of the international community in past incidents of genocidal violence, these case studies help shape the views of a new generation of policymakers both within the United States and around the world.
Tlatlaya Revealed: Archive Petition Cracks Open Investigative File on Mexican Army Massacre
Soldiers Changed Testimony, Implicated Others in Executions
National Security Archive Appeals on Human Rights Grounds, Wins Massacre Evidence from Mexican Attorney General
Cover of the 268-page “Auto Formal de Prisión”
An access-to-information request and appeal filed by the National Security Archive for the secret investigative files on an important human rights case has produced new, more detailed, evidence about the actions of Mexican Army soldiers accused of executing at least 11 people who surrendered after a June 2014 firefight in the state of Mexico.
Released in accordance with the human rights exception in Mexico’s access law, the report on the massacre in Tlatlaya raises new questions about how Mexican authorities have handled the investigation (which is already marred by accusations of torture and cover-up), the exact number of executions that occurred that day, and why some of the soldiers later changed their testimonies to implicate others in the crime.
The newly-available report, published jointly by the Archive and the investigative team at Aristegui Noticias in Mexico, comes just days after four of the seven soldiers detained for their part in the June 30, 2014, massacre were released from custody. Three others remain behind bars, charged with murdering 11 people, some of whom were suspected members of the “Familia Michoacana” criminal group.
Bits and pieces of the testimony and reports found in the 268-page “Auto Formal de Prisión” have appeared elsewhere, most notably in the official recommendation of Mexico’s National Commission on Human Rights (CNDH), but this is the first time that the complete (albeit redacted) document has been made available to the general public. Similar to an indictment, the document includes statements from eyewitnesses and the accused, changes in testimony, and catalogs other evidence, including key passages from the medical examinations of the 22 people who were killed that day in a warehouse outside the village of San Pedro Limón.
Commissioners from Mexico’s National Institute for Access to Information and Data Protection (INAI) ordered the release of the file over the objections of the attorney general’s office, arguing, as we did in our appeal, that the Tlatlaya executions clearly constitute violations of fundamental human rights. Under Mexico’s access law, government agencies cannot withhold information pertaining to violations of human rights and international humanitarian law.
In a major victory for access to human rights information in Mexico, the INAI commissioners agreed, finding that:
… [the law] clearly recognizes the necessity that both the victims as well as society in general know the actions of the authorities in the present case, since, given its transcendent importance, these acts directly affect not only the victims and their families, but also society at large, which has been affected by the climate of insecurity generated by acts such as these and the lack of trust it fosters in institutions of transcendent national importance like the Mexican Army.
The discrepancies found between the evidence presented in the “Auto Formal de Prisión” and other official sources do little to increase trust in either the military or judicial authorities in Mexico, and raise important questions about the way the PGR has conducted its investigation and the decision this week to free four of the soldiers accused in connection to the case.
How many were executed?
As La Jornada pointed out in an article published earlier this week, there are dramatic differences in the way that evidence on the Tlatlaya case has been interpreted by CNDH on the one hand and by the office of the attorney general (PGR) on the other. The distinctions are most evident in the conclusions that each have drawn about the number of alleged gang members that were murdered after the initial firefight.
While CNDH found that the soldiers had executed “at least 15 of the [22] alleged kidnappers,” former attorney general Jesús Murillo Karam only found evidence of eight extrajudicial executions. The three soldiers who remain in custody now stand accused of killing 11 prisoners.
In another sharp divergence, both the PGR and the attorney general of the state of Mexico concluded that only five of the 22 found dead at the scene were engaged in maneuvers of instinctive self-defense in their final moments—indications that are normally associated with people being executed. In its recommendation of October 21, 2014, CNDH, the federal agency charged with guaranteeing the protection of human rights in Mexico, said that six of the dead exhibited such signs, which might include wounds to hands and forearms used instinctively to shield vital areas like the head and torso.
But an expert report from the day of the shootings found in the “Auto Formal de Prisión” indicated that as many as nine of the victims had their arms up in acts of self-defense, including victim numbers 17, 18 and 21, who were not included among those identified by CNDH or the PGR.
An expert from the office of the attorney general of the state of Mexico found that nine of the Tlatlaya victims were engaged in maneuvers of instinctive self-defense (“maniobras instintivas de defensa”) when the fatal shots were fired.
The new finding begs the question: How and why did the initial finding that nine of those killed had their arms up in self-defense get reduced to five? What impact did that conclusion have on the development of the case against the seven soldiers and the decision to release four others?
Altered testimony
The “Auto Formal de Prisión” published here today was assembled by a federal criminal court judge in November 2014 to justify the detention of seven Mexican army soldiers in relation to the massacre. Soon thereafter, the military successfully moved to have the investigation reassigned to a different court and a new judge, who later ordered that four of the accused soldiers be released, in part because PGR violated their rights. This week, that order was upheld by a higher court, and the soldiers were released (and now only face minor charges that do not justify detention).
As of today, only three soldiers from the unit allegedly responsible for the killings remain in custody; these are Sergeant Roberto Acevedo López and infantry soldiers Fernando Quintero Millán and Leobardo Hernández Leónides.
Summaries of testimony from the four soldiers who were freed this week and revealed in the “Auto Formal de Prisión” indicate that they changed their initial testimony almost three months after the fact to add what would appear to be a crucial piece of evidence: that they heard gunshots fired moments after Sgt. Acevedo, Quintero and Hernández entered the warehouse.
On September 28, 2014, five of soldiers, including Lieutenant Ezequiel Rodríguez Martínez, leader of the unit, modified their testimony, adding “that on the day and hour of the acts, after the gunshots had ceased between them and a group of armed persons, three of their companions came into the warehouse, after which they immediately hear more gunshots.”
In a revised statement, five of the soldiers present at the scene of the crime later changed their testimonies to say they heard additional gunshots after three others entered the warehouse.
Why did these five soldiers (including one who was never detained) only remember this most-critical piece of the story nearly three months after their initial statements to investigators? Today’s report from Aristegui Noticias suggests that they changed their testimony after Esquire and the Associated Press (AP) penned stories in September 2014 calling into question whether there had actually even been a shootout at the warehouse and presented evidence suggesting that there had been a number of extrajudicial executions.
The “Auto Formal de Prisión” reveals that just a week after those news stories emerged, the senior officer at the scene dramatically changed his initial testimony. Questioned on June 30, the day of the crime, Lieutenant Ezequiel Rodríguez Martínez, said nothing about hearing additional gunshots after the initial firefight. He told investigators that, after the first confrontation ended, he “ordered Sergeant Torres to support Sergeant Acevedo in an inspection of the interior of the warehouse.” He said that Acevedo discovered three people inside, presumably the three female witnesses whose horrifying accounts from that day have been detailed elsewhere.
But Rodríguez altered his testimony on September 24, just a week after the reports from Esquire and AP, when he suddenly remembered hearing an additional round of gunfire lasting several minutes from inside the warehouse. In the new version, the lieutenant said that he “ordered Second Sergeant Roberto Acevedo López and two soldiers, Fernando Quintero Millán and Leobardo Hernández Leónides”—the same three who now stand accused of homicide—“to perform an inspection of the interior of the warehouse, where they remained for between three and five minutes, reporting 22 dead.” Lt. Rodríguez “further clarified” in his revised statement “that when the gunshots had ended, about three or four minutes later, Sergeant Roberto Acevedo López, together with soldiers Fernando Quintero Millán and Leobardo Hernández Leónides, entered the warehouse, while [Rodríguez] went to check on the health of soldier Roni [another soldier who was wounded in the initial firefight] and in those moments heard more gunshots that lasted about five minutes.”
Lt. Rodríguez’s revelation about the additional gunshots received a chorus of support four days later when four of his subordinates corroborated key elements of his story that implicated the three others. Three of those who backed up the lieutenant’s story, Sgt. Torres, Julio César Guerrero Cruz, and Alan Fuentes Guadarrama, were among those released from detention this week, along with Rodríguez.
In his initial account of June 30, Sgt. Torres said he had no knowledge of what happened inside the warehouse. But on September 28, after the Esquire and AP revelations, and just four days after Rodríguez told investigators that he remembered hearing more shots, Torres recalled that he and Fuentes were inside the building assisting one of the female survivors when they heard shots fired from behind them.
In his revised testimony of September 28, Fuentes also recalled hearing shots that he had not previously remembered.
Guerrero Cruz, the squad’s radio operator who was also released this week, had little to say in his initial statement, and it’s not clear what he said in his revised testimony beyond joining the others in saying that the three soldiers now accused of homicide entered the building together and that shots were heard from inside the warehouse in the minutes that followed.
But why did the four not react at all when, by their own revised accounts, they heard an additional round of gunshots from inside the building lasting several minutes? And why did they conceal this critical bit of information during their initial interviews?
“Critical levels of impunity”
Mexico’s human rights crisis is bigger than Tlatlaya. Earlier this week, the Inter-American Commission on Human Rights found that Mexico’s legal system was crippled by “critical levels of impunity” and that “the response from the state continues to be insufficient.” Nearly every victim and advocate they spoke with complained about “obstacles that they had encountered in their search for justice and their mistrust of the authorities.” While the annual number of homicides has decreased in recent years, Mexico still faces “epidemic levels of violence,” according to the Commission. Last year, a United Nations special rapporteur on extrajudicial executions, Christof Heyns, said that between December 2006 and November 2012 Mexican authorities were responsible for 102,696 homicides, of which less than two percent resulted in condemnations. Heyns said that impunity for Mexican authorities involved in such cases was “systematic and endemic.”
With four of the accused soldiers in the Tlatlaya case now free, questions about their altered testimony and other discrepancies found in the “Auto Formal de Prisión” might seem purely academic. But beyond the lingering questions about who is responsible for the executions and apparent cover-up, Mexican society has a fundamental right to know the truth about shocking human rights crimes like the Tlatlaya executions.
___________________________
National Security Archive researcher Laura Perkins contributed to this report.
A screenshot of the FBI’s now-deleted encryption advice.
TechDirt user Mike Masnick noticed last year that the FBI took down its recommended safety tips for protecting cell phones – which included advising that people encrypt their phones. Masnick filed a FOIA request to find out why the page had been deleted, and was told that no records were found responsive to his request – an unlikely scenario considering the current encryption debate.
The FBI’s FOIA search process is convoluted by design, and a 2015 FOIA lawsuit seeking FBI records related to the 1995 Oklahoma City bombing helped shed light on the lengths requesters need to go to for the FBI to perform an adequate search. Testimony in the 2015 suit showed “that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records ‘systems’ that they need to specify in order for a comprehensive search to take place.” These systems include the Automated Case Support system (ACS), which searches the FBI’s Central Records System. The ACS itself is split into three parts: the Investigative Case Management system (ICM), the Electronic Case File (ECF), and the Universal Index (UNI). Because the FBI routinely acts in bad faith when responding to FOIA requests and does not search the majority of its records systems unless specifically asked, FOIA requests to the FBI should include language requesting the bureau search all components of the ACS: the ICM, the ECF, and the UNI. (See here for additional information on the extent to which agencies MUST search all records systems reasonably believed to contain responsive documents in order to satisfy the requirements of the FOIA.)
The FBI did abandon its worrisome requirement that FOIA requesters upload a government-issued photo ID when filling out requests on the agency’s new FOIA portal that is currently being tested. The FBI’s blog post announcing the change did not, however, rescind initial reports that the portal limits requesters to making one request a day.
Don’t blame the President for making this face in 2009 after then-FBI director Mueller gave him this hat as a gift. AFP PHOTO / Saul LOEB
The FBI bungled unlocking the iPhone of one of the San Bernadino shooters and then tried to pin the problem on Apple and use the situation as a justification to weaken encryption. While FBI director James Comey has been arguing for months against strong encryption and is taking Apple to court in several cases to unlock encrypted iPhones, during a Tuesday hearing before the House Judiciary Committee Comey admitted that the buerau –against Apple’s initial advice—ordered one of the shooters employers, San Bernadino County, to change the phone’s iCloud password after the shooting. The FBI told the County to change the password even though Apple suggested other means of accessing the phone; changing the iCloud password not only locked the bureau out, it eliminated other ways into the phone.
Trevor Timm’s recent op-ed in the Guardian sums up Congress’ growing frustration with the FBI over its ask for encryption backdoors, an issue the bureau has said it wants Congress and the courts to weigh in on. Timm notes, “One judiciary member questioned how the FBI managed to mess up so badly during the San Bernardino investigation and reset the shooter’s password, which is what kicked this whole controversy and court case in motion in the first place. And if the case was such an emergency, why did they wait 50 days to go to court? Another member questioned what happens when China inevitably asks for the same extraordinary powers the FBI is demanding now. Others questioned whether the FBI had really used all the resources available to break into the phone without Apple’s help. For example, why hasn’t the FBI attempted to get the NSA’s help to get into the phone, since hacking is their job?”
During the grilling Comey said that “Of course” the FBI would try to unlock other encrypted phones if it wins the San Bernadino case. A Monday ruling in New York in a separate case, however, makes an FBI victory seem less likely. Judge James Orenstein in New York’s Eastern District denied the government’s request that Apple extract data from an iPhone in a drug case, saying that “the government was inflating its authority” by citing 1789’s All Writs Act to force Apple to extract data from an iPhone. The Act “broadly says that courts can require actions to comply with their orders when not covered by existing law” and the government is also citing it in the San Bernadino case. The Judge wrote that the government’s interpretation of the Act “is so expansive as to cast doubt on its constitutionality if adopted”.
On Monday the Office of the Director of National Intelligence (ODNI) published a 22-page 2002 letter written by the DOJ’s Office of Legal Counsel’s John Yoo on the legality of the National Security Agency’s mass surveillance practices. The New York Times reports that, “The letter explained to Colleen Kollar-Kotelly, who at that time was the new chief judge of the Foreign Intelligence Surveillance Court, why the Justice Department considered the program lawful even though, as Mr. Yoo acknowledged, it clashed with wiretapping laws laid out in the Foreign Intelligence Surveillance Act.” ODNI posted the letter on its Tumblr, IC on the Record, an account that was set up in an attempt to rebrand itself after the Edward Snowden leaks to provide “Direct access to factual information related to the lawful foreign surveillance activities of the U.S. Intelligence Community”.
While ODNI is making some steps to be more transparent, it is undercutting those efforts elsewhere. ODNI recently proposed a plan to charge requesters up to $72 per hour to review Mandatory Declassification Review (MDR) requests, even if no information is found or if all of the information that is found must be withheld. The plan is out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures, and will go into effect by April 26, 2016, “unless adverse comment is received by March 28, 2016.”
(L to R) Vice President George H. W. Bush, President Ronald Reagan and President Mikhail Gorbachev during the Governor’s Island summit, December 1988. (Credit: Ronald Reagan Presidential Library)
To mark the 85th birthday of the Soviet Union’s first and last president, Mikhail Gorbachev, the Archive posted a collection of previously classified Western assessments of him. The documents show that conservative British politicians were ahead of the curve predicting great things for rising Soviet star Gorbachev in 1984 and 1985, but the CIA soon caught on, describing the new Soviet leader only three months into his tenure as “the new broom”. Another fascinating document in the collection is an April 1991 CIA memo declaring that “The Gorbachev era is effectively over” – an eerie resemblance to the actual coup that would come in August 1991.
The Gerald Ford White House significantly altered the final report of the supposedly independent 1975 Rockefeller Commission investigating CIA domestic activities, over the objections of senior Commission staff, according to internal White House and Commission documents that were recently posted by the Archive. The changes included removal of an entire 86-page section on CIA assassination plots and numerous edits to the report by then-Deputy White House Chief of Staff Richard Cheney. The Archive’s posting includes:
- The entire suppressed section on assassination attempts
- Cheney’s handwritten marginal notes
- Staff memos warning of the fallout of deleting the controversial section
- White House strategies for presenting the edited report to the public
The documents show that the leadership of the presidentially appointed commission deliberately curtailed the investigation and ceded its independence to White House political operatives.
There is a real-life sequel to Hollywood’s Oscar-nominated Bridge Of Spies – James Donovan’s secret mission to Cuba to negotiate a massive prisoner release with Fidel Castro. The story – and the trust that developed between Donovan and Castro – is told in Peter Kornbluh’s book, Back Channel to Cuba. The documents show that in the aftermath of the Cuban missile crisis, Donovan engaged Castro in discussions on improving U.S. relations with Cuba and predicted that, eventually, “an accommodation of views could be worked out.”
Did you miss any of the Archive’s postings this week – from Gorbachev to the Rockefeller Commission to James Donovan’s secret mission to Cuba ? If so then sign up for the Archive’s mailing list to stay up to date with all of our exciting work.
The British Cabinet Office continues to hide all but the first page of this key report on the danger during Able Archer 83.
This week’s #tbt pick is chosen with good news from the UK’s Independent Commission on FOI in mind. The Commission’s recent report examines the last 10 years of FOIA in the UK and does not call for the severe restrictions that had initially seemed likely, although proposed changes to the appeals process remain a concern. Today’s #tbt pick is a British report entitled “The Detection of Soviet Preparations for War Against NATO” that was the first comprehensive report that warned that a November 1983 nuclear release exercise called Able Archer 83 could have spooked the Soviets into a preemptive nuclear attack against the West. Unfortunately for the public, last year the British Cabinet Office and Information Commissioner successfully argued to withhold the key 32-year-old historic document about one of the most important nuclear episodes in our history without a review.
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Happy FOIA-ing!
ODNI Tries to Sneak Through Astronomically High MDR Fees Out of Step with Obama Administration’s Open Gov Commitments
$72 an hour seriously out of step with other agencies, open government commitments.
The Office of the Director of National Intelligence’s (ODNI) new plan to charge requesters up to $72 per hour to review Mandatory Declassification Review (MDR) requests, even if no information is found or if all of the information that is found must be withheld, is out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures. Steve Aftergood notes that commercial enterprise don’t charge anywhere near what ODNI is proposing, and “Neither do most of ODNI’s peer agencies.” ODNI is following the CIA’s bad —and ultimately unsuccessful— example with this tactic, and its plan to price out requesters from making legitimate declassification requests will go into effect by April 26, 2016, “unless adverse comment is received by March 28, 2016.”
The contact person at ODNI, by the way, is Jennifer L. Hudson, who can be reached at 703-874-8085.
ODNI’s high fees support OTG’s earlier reports.
The ODNI’s actions hurts both ordinary requesters and the Obama administration by making the White House look uncommitted to fulfilling its NAP commitments, specifically its commitment to create a classification reform committee that would, among other improvements, expand and improve MDR. Rather, it gives further credence to a recent OpentheGovernment.org (OTG) report that concludes that the administration is not fulfilling its commitments to improve FOIA or other open government benchmarks, and an earlier progress report finding that overall the Obama administration has failed to take advantage of the OGP platform and capitalize on transparency initiatives, noting that, “certain areas of secrecy continue to cast a dark shadow over the entire OGP process.”
The move also severely undercuts the ODNI’s previous attempts to be more transparent with “IC On The Record”, its tumblr account that was set up in an attempt to rebrand itself after the Edward Snowden leaks to provide “Direct access to factual information related to the lawful foreign surveillance activities of the U.S. Intelligence Community”.
Pricing out the public from making legitimate declassification requests only makes it more likely that more Snowdens will leak documents the public can’t afford to request.
Why would ODNI propose such a bad new rule and not invite public comment at a time when the Obama administration could use a transparency win and after the CIA failed to push nearly the exact same rule through in 2012?
Because MDR —thanks to its unique appeals process— eventually allows declassification decisions to be removed from under the control of an individual agency to an independent, democratic, outside entity. This entity is sometimes called the “secrecy court of last resort,” the Interagency Security Classification Appeals Panel (ISCAP).
ISCAP is composed of senior-level representatives appointed by the Departments of State, Defense, and Justice, the National Archives, the Office of the Director of National Intelligence, and the National Security Advisor. These senior representatives review classified documents, and vote to determine if some or all of the information agencies have argued must remain secret can be released without harming US national security –majority vote rules.
According to the most recent US government report on classification, these officials have overruled agency classifications 75 percent of the time.
“The Panel affirmed the prior agency classification decisions in 113
documents (25 percent), declassified 181 documents (40
percent) in their entirety, and declassified 157 documents
35 percent) in part.“
The CIA’s efforts in 2012 were thwarted after thirty-six groups —including the Archive— signed on to fight to force the CIA to repeal its regulations (and after Kel McClanahan of National Security Counselors filed a lawsuit showing this secret regulations change was illegal). Only after this did the CIA “as a courtesy to requesters… decide[] not to charge fees under the new [Mandatory Declassification Review] regulation while judicial review of the regulation is pending.”
Proposing a rule that would effectively price out requesters before they can even file an MDR request —ostensibly because agencies don’t like being consistently told their secrecy claims are unsubstantiated, and doing so by ignoring notice-and-comment requirements, is not in keeping with the Obama administration’s open government commitments and ODNI’s earlier attempts to be more transparent. OTG will be submitting comments against the new fee rules as will the Archive. Join us in telling the ODNI to get back on the right track
Why it’s “bizarre and disgraceful” that NARA won’t call the torture report a federal record.
Melville House published the executive summary of the report in late 2014 – with no government funding.
A version of this interview originally appeared on Melville House Publishing’s website, and is edited by Mark Krotov.
Two weeks ago, the National Security Archive’s Lauren Harper wrote a fascinating op-ed in Al Jazeera America (RIP!) called “The CIA torture report belongs to the public.”
Since our publication of the executive summary of the report in December 2014, we’ve been following the slow progress of the full, 6,000-page report, and Harper’s piece offers a new window into the Department of Justice’s ongoing efforts to keep the report out of the public (or even non-public) eye.
Harper writes that David Ferriero, the archivist of the United States, is “refusing to use his clear statutory authority to label the report a federal record, which would be subject to Freedom of Information Act (FOIA) disclosure requirements.” She goes on to describe the National Archives and Records Administration’s role in the debate over the report and offers a revealing look at the numerous ways various government agencies are trying to suppress it.
We asked Harper a few questions about her op-ed—and the state of the report—over e-mail.
Before we get into the torture report, a general question: is there an established protocol for how reports of this kind are supposed to be circulated and distributed? Did something like the 9/11 Commission Report get passed along to the National Archives and Records Administration? Or is this really the first instance of its kind?
The short answer is no—there is no hard and fast protocol. There are similar reports that did make their way to the public, but the variables that affect how any given report is circulated change by the administration, by Congress, by the agency or agencies involved.
The best comparison we have to the current situation is actually the Church Committee, and even here there are some significant differences. The Church Committee was set up in 1975, after Watergate, and was Congress’s first serious inquiry into CIA and FBI abuses. It faced a lot of the same political and bureaucratic obstacles as we’re seeing now. One of the things that Walter Mondale—who was on the Church Committee—recently said is that Gerald Ford’s attorney general, Edward Levi, wanted to help the committee, and provided help that was “indispensable.”
This is not a situation we seem to have now, though the Ford administration also required that the CIA submit all proposed responses to Capitol Hill for prior presidential approval with the explicit intent to keep investigators away from the most sensitive records.
President Gerald Ford (center) with White House Chief of Staff Donald Rumsfeld (left), and Rumsfeld’s assistant, Dick Cheney, in the Oval Office, April 28, 1975. (Source: David Hume Kennerly, photographer; courtesy Gerald R. Ford Library)
This is all to say that who is in the White House and who is at the DOJ matters a great deal where the outcome of these reports is concerned.
I’d also add that it is unique—and it doesn’t help matters—that the current chair for the Senate Intelligence Committee, Richard Burr (R-NC), wants the report to be declared a congressional record and not subject to FOIA.
Can you tell us, briefly, about the kind of work your organization, the National Security Archive, does? And when did the NSA (do you use that abbreviation?) get involved with the torture report?
The Archive—which doesn’t go by NSA to avoid confusion with the other NSA—has been around since 1985 and was established by a group of journalists and scholars to check rising government secrecy. We submit thousands of targeted Freedom of Information Act requests a year on issues that the government wants to hide, and we’ve pried loose more than ten million pages of government secrets.
FOIA is by far our strongest tool, and the one that connects all of our projects—from, among other things, our Nuclear Vault, to our Cyber Vault, to our Genocide Documentation Project, to all of our work on the Cuban Missile Crisis and our Iraq project. And our Torture Archive.
The Archive has consistently sought the declassification of records on the torture program as part of our Torture Archive. One of the major pieces of documentation that was declassified on the torture program was something called the Zelikow memo, all copies of which were thought to be destroyed until the State Department (which has gone on record as agreeing with the findings of the Senate’s report) located one in response to an Archive FOIA request.
As you may know, this is a February 2006 internal memo from the State Department’s then-counselor Steve Zelikow opposing Justice Department authorization for “enhanced interrogation techniques” by the CIA. It reflected strong internal disagreement within the George W. Bush administration over the constitutionality of such techniques. Zelikow said, “I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC [the Justice Department’s Office of Legal Counsel] views unsustainable.”
More generally, as experts on government secrecy and obfuscation, Archivists have been speaking out about the torture report for years. I’ve written about it regularly for our blog, Unredacted, and our director Tom Blanton has appeared on the Colbert Report and the Kojo Nnamdi Show to go on record explaining where this report fits in a historical context as far as government secrecy and CIA misdeeds go, and why this report needs to be released.
Archive director Tom Blanton – one of the Report’s final guests – paid Stephen a visit to talk about the Torture Report.
How is the Department of Justice pressuring the NARA to keep the report under wraps? Is it just a matter of sending threatening letters? Does the DOJ actually have any legal pretext for this kind of intimidation?
Unfortunately, trying to determine the origins of the DOJ’s terrible stances on national security—and the methods they’re using to communicate those stances—sometimes feels like looking into a black box. They certainly can’t tell NARA not to declare something a federal record—that much we know. But in this instance, one guess is that the pressure is coming from somewhere with the DOJ’s Civil division.
Unlike during the Church Committee, the Attorney General is not gunning for this report’s release. In 2009, AG Eric Holder ordered a review of the CIA’s treatment of suspected terrorist detainees. Two criminal investigations came and went, but there were never any prosecutions because “the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt.” You would think that the Senate report would have changed that stance, and yet it didn’t because, as the DOJ maintains, it “did not find any new information that they had not previously considered in reaching their determination.”
Another bit of legal news that makes the DOJ’s stance in this instance quite frustrating is that the chief military prosecutor at Guantanamo has argued in court filings that the Senate Intelligence Committee’s executive summary of the report is accurate. This may be a ploy to keep more classified material out of court and out of defense lawyers’ hands, but it puts the military prosecution at odds with the CIA and undercuts CIA (and Republican) criticism that the report is inaccurate and partisan—and gives more weight to the argument that the report is accurate and should not be hidden from the public.
Is the DOJ’s approach to the NARA similar to the one it’s directing at other departments?
I think the issue with NARA is different, on some level. First, other agencies—like the CIA—have a strong incentive not to do anything that might make it easier to get the report released, and they certainly don’t need to be intimidated to be made to feel that way. Two, the Presidential and Federal Records Act Amendments of 2014 are relatively new, and I think there is some legal wariness at NARA that the DOJ is exploiting here.
That said, I would like to emphasize how bizarre and disgraceful it is that NARA seems scared to call a federal record a federal record and ensure that it’s preserved. It’s their job.
What is the state of the full report at the moment? There are copies at the DOJ, the Department of Defense, the CIA, the State Department, and the White House, right? But is it essentially being held hostage by the DOJ?
As far as I know, that’s correct, but I wouldn’t want to say that it’s being held hostage by the DOJ because that implies the DOJ is the only agency—or at least the principal agency—that doesn’t want the report to see the light of day. That’s just not the case. The DOJ is taking the lead now, because while the ACLU’s FOIA case is in the courts, that’s where the DOJ can best flex its muscle. But if and when the report is declared a federal record, you will likely see the CIA use every tool in its toolbox to keep as much of the report hidden as possible.
Look at what happened with the Panetta Review, the 2009 internal CIA review that found that the value of torturing detainees had been inflated. The Panetta Review was the subject of a 2013 FOIA lawsuit, but as the New York Times reported last January, each document used for the Panetta Review “is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well.”
This is emblematic of agencies realizing how easy it is to hide FOIA-able documents under the expansive and oft-abused FOIA exemption b(5). The Panetta Review documents were withheld even though, according to Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987), “particular factual” material cannot be withheld by an agency by merely stating that the material is in a draft document. You would absolutely see the CIA citing b(5) and other exemptions to hide information were the torture report’s status as a federal record not currently in question.
So yes, the DOJ is leading the charge in the courts right now to keep the document secret, but the CIA would gladly take the reins if and when the document is called what it is—a federal record.
The Intercept’s Murtaza Hussain suggested last year that the White House is essentially treating the DOJ’s tactics as an excuse not to engage with the report. Does this seem plausible to you? And if the DOJ weren’t in the way, would there be greater pressure on the White House to react—and thus reignite the issue?
My feeling is that the White House doesn’t want to touch this, but I don’t think that absent the DOJ, the White House would be more proactive in calling for the report’s release. I say this in part because of Obama’s transparency record to date—particularly where national security information is concerned—which stands in contrast to his vow to be the most transparent administration in history.
And because there was no reaction from the White House when the CIA admitted that it had spied on the Senate staff who were compiling the report. There was also no rebuke of John Brennan’s antagonistic stance towards congressional oversight, which is troubling in and of itself, I think.
I’d also point out that in April 2014, the White House, in a clear conflict of interest, announced that the CIA would lead this declassification effort for this report. In August of that year, the White House redacted “signification portions” of the executive summary, allegedly withholding fifteen percent of the document, including pseudonyms for both CIA officers and the countries that cooperated with the agency’s extraordinary rendition program. The redactions also allegedly included evidence that “pieces of information long attributed to detainees—and that led to the disruption of terrorism plots or the capture of additional suspects—had actually come from other intelligence sources such as intercepted communications.”
It’s also worth mentioning that the Obama administration has yet to nominate a replacement for the CIA’s inspector general—a position that’s been empty since David Buckley resigned well over a year ago, and a vacancy that’s delaying sensitive internal investigations, like the one into the drone strike that killed Warren Weinstein, an American hostage being held by Al Qaeda in Pakistan.
CIA director John Brennan apologized to Sen. Feinstein after an IG report showed the agency spied on Senate staff, then backtracked saying there was no “memorandum of agreement.” Reuters photo.
Buckley, of course, released a CIA IG report finding that five CIA officials improperly monitored Senate Intelligence Committee staff working on the torture report in February 2015, only to have the agency decide not to punish any of those involved; in fact, a CIA panel handpicked by Brennan went so far as to clear the officials of any wrongdoing, concluding that the officials had acted reasonably in the face of a potential security breach.
Buckley’s IG report, as it happens, also implies that the White House was aware of the CIA snooping on Senate staff.
What’s the latest on the FOIA lawsuit? What happens next?
The ACLU sued the CIA for access to the report in 2014, last May a federal judge ruled that the document still belongs to Congress, and the decision is currently under appeal. Hopefully what comes next is a reversal of the lower court decision and a ruling that the record is subject to FOIA. Of course, then the CIA would argue that the document is too secret to be released, and then more fights over that.
Do advocates for transparency (like the National Security Archive) have any legal means at your disposal for prodding David Ferriero into action? Or is public pressure the only (and most effective) tool in this case?
When it comes to getting NARA to declare the report a federal record, public pressure is the best recourse. I do not believe there are legal means that would prod him to designate the record as such; the legal means would be what the ACLU is currently doing and having it hashed out in a FOIA lawsuit.
You indicated in your op-ed that given the Presidential and Federal Records Act Amendments, Ferriero can simply declare the torture report a federal record. Is there any hope that he might act unilaterally to do this, or is there too much pressure in his way? And if he were to declare it a federal record, what would happen then?
I would like to remain optimistic that the he will, and that the folks at NARA—who are generally very good on declassification—will come out on the right side of this, although I haven’t heard anything to bolster my optimism.
I would suspect that there is a considerable amount of pressure, and I think NARA is playing it safe, perhaps at the behest of NARA’s lawyers who are more inclined towards caution than disclosure. If he does declare it a federal record, then the CIA will likely continue to try its best to withhold the whole thing anyway, but at least in this case we can use FOIA as a tool to fight against the agency’s attempts to hide its actions.
Is your ultimate goal the declassification of the full report, or would you be satisfied with the DOJ dropping its objections to the report’s circulation within the government?
I think there are two goals here, maybe three. The most important thing is to preserve this record for history and not let it be destroyed or hidden under the proverbial rug, even if it can’t be declassified anytime soon. If it’s not declared a federal record and subject to FOIA, people might never get a chance to read it—ever.
So the first, shorter-term goal would be for the FOIA case to definitively state that the report is a federal record and also allow it to be circulated within the government. This should happen, and the reality is that if it does, a good amount of the report will remain classified for years—maybe even decades to come.
A second, longer-term goal then would be the full declassification of the report, but as FOIA requesters know, this can be a very lengthy process and can involve years of court battles.
I suppose a third goal would be taking a look at the footnotes of the 6,700 pages of the report—which cited 6 million pages of evidence, and FOIA-ing those, as well.
These are tangible goals, and I think they are necessary ones to achieve the broader goals of ending CIA impunity in instances like this, making agencies and individuals accountable, and preserving the historical record.
Mark Krotov is senior editor at Melville House.
DOJ Lawyer Forgets FOIA Requires Agencies Search All Systems Reasonably Believed to Contain Responsive Documents: FRINFORMSUM 2/25/2016
Hillary Clinton might be questioned about attempt to evade FOIA with personal server. Photo credit: Steven Senne/AP
U.S. District Judge Emmet G. Sullivan ruled that Hillary Clinton and top aides “should be questioned under oath” about whether her private email and server set-up was an intentional ploy to evade FOIA. The ruling is in connection with a FOIA lawsuit brought by Judicial Watch over records concerning Huma Abedin’s employment, and establishes April 12 as the “deadline for parties to litigate a detailed investigative plan–subject to court approval–that would reach well beyond the limited and carefully worded explanations of the use of the private server that department and Clinton officials have given.”
The Justice Department’s Principal Deputy Assistant Attorney General Benjamin C. Mizer, who heads the Civil Division, said in court filings connected with the case that, “There can be no doubt that [the State Department’s] search for responsive records has been exceedingly thorough and more than adequate under FOIA,” going on to erroneously say “FOIA requires the agency to release records only under its control — not under the control of its current or former officials — and that ‘federal employees routinely manage their email and ‘self-select’ their work-related messages when they, quite permissibly, designate and delete personal emails from their government email accounts.’”
Milzer’s comments ignore FOIA case law that establishes the extent to which agencies MUST search all records system reasonably believed to contain responsive documents, even if it means contacting former employees. Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) makes it explicitly clear that it is the obligation of the Department to “conduct a search reasonably calculated to uncover all relevant documents.” The Justice Department’s own May 2004 FOIA Guide says that an agency “cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Rather, the obligation of the Department to search other sources likely to contain responsive records includes contacting former employees where necessary. [See, e.g.,Comer v. IRS, No. 97-76329, 2001 U.S. Dist. LEXIS 16996 (E.D. Mich. Sept. 25, 2001) which found an agency search inadequate when the agency made no attempt to contact a former employee familiar with the information sought.]
Report showing VAST majority of official DOS emails not stored.
Mizer’s comments raise other red flags, not least of which is that government employees should not be self-selecting which of their records to preserve in the first place. A March 2015 State Department IG report shows that most State employees don’t even know how the self-selection works, revealing that “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.’ In 2011, employees created 61,156 record emails out of more than a billion emails sent.” In other words, roughly .006% of DOS emails were captured electronically.
A federal judge has ruled — for the first time — that citizens are allowed to gather evidence on the National Security Agency’s (NSA) warrantless surveillance program and “seek damages for violations of federal privacy laws.” U.S. District Judge Jeffery White ruled against the NSA, which argued that the agency could not be sued for damages because the claims are barred by the state secrets privilege, when lifting the 12-month stay; White found that “the Foreign Intelligence Surveillance Act of 1978 authorizes citizens to seek damages for violations of federal privacy laws, even from the federal government.” The Electronic Frontier Foundation’s civil liberties director David Greene said “This is an important step forward to lifting the cloak of secrecy that has thus far shielded the NSA from judicial scrutiny, and EFF looks forward to finally getting to the nuts and bolts of this extraordinarily important lawsuit.”
“It was a clean swing and a miss” is how former NSA and CIA head Michael Hayden described the intelligence community’s assessment of Iraq’s weapons of mass destruction program in an interview with NPR’s Robert Siegel to promote his new memoir, Playing to the Edge. Hayden repeated his claim that the White House didn’t sell the notion that Iraq had WMD, and allegedly told incoming CIA director Leon Panetta that the CIA didn’t buckle “under [White House] pressure with regard to the Iraqi [national intelligence estimate], the weapons of mass destruction” – it simply got it wrong. The two are not mutually exclusive of course; the CIA’s infamous October 2002 NIE, Iraq’s Continuing Program for Weapons of Mass Destruction and was initially released in 2004 thanks to an Archive FOIA request, contains inaccurate information and has been called “probably the worst of the modern NIE’s” by Iraq Survey Group leader David Kay, and the White House sold the story – which it started crafting immediately after 9/11 – that Iraq had WMD.
Undated painting depicts an “artist’s conception of an AGM-86 air launched cruise missile released from a B-52G, in the background in flight.” (NARA, Still Pictures Unit, RG 342B, box 965).
The government has officially declassified the long-known fact that the United States stored nuclear weapons on Okinawa during the Cold War – even though US Air Force photos of nuclear weapons on the island have been publicly available since 1990 in Air Force collections at the National Archives and Records Administration (NARA), which have essentially gone unnoticed until now. Although an open secret for decades, the subject has been controversial because Japan’s leaders and U.S. officials have consistently denied the presence of such weapons on Japanese territory. The Interagency Security Classification Review Panel (ISCAP), a component of NARA, released the documents, which were recently posted on the Archive’s website along with other significant ISCAP releases, including CIA documents containing bogus information about Iraq’s nuclear programs and State Department cables about another nuclear controversy from the Cold War – the US discovery that Taiwan was conducting laser uranium enrichment research.
The Archive’s FOIA Director Nate Jones recently talked tips, tricks, and why you should always appeal FOIA denials with MuckRock. Jones reminded readers of a 2015 AP report that found that during the Obama administration agencies “acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.” Unfortunately, according to recent figures from the Department of Justice, only 2.8% of all denials are appealed. Jones says, “ If you do the math and extrapolate that out, that’s a huge swath — over 150,000 FOIAs and millions of pages of documents — that are improperly withheld the first time and continue to be improperly withheld, even though – if the statistics bear out – they would have been released had it been appealed.”
Not the Washington Records Center.
Jones also has some great advice for historians – and some interesting trivia for Indiana Jones fans. Jones says, “Here’s a great tip, and again, this is a little bit pointed towards historians. At the end of Raiders of the Lost Ark, they put the Ark in a secret government warehouse. One of those actually exists, and it is subject to FOIA, and it’s called the Washington Records Center. What happens is, agencies want to get rid of their old documents. They want to give them to NARA, but the National Archives has such a large backlog, there’s this document purgatory. Docs even sit for 30 years, maybe more, 40 years. All of these documents, the law says, are subject to FOIA. They have to be searched by the originating agency. Agencies don’t like this, because they think that they gave these documents to NARA and they’re not their problem anymore, but that’s not the law. They still have to go to this Washington Records Center, which is in Maryland actually, and search for the documents.”
This week’s #tbt pick is chosen with a bill currently before the Virginia General Assembly that aims to keep the names of all state police officers secret in mind. Executive director of the Virginia Association of Chiefs of Police, Dana Schrad, said, somewhat confusingly about a bill that would help hide actions of police officers who abuse their power, that “We do not expect this to be abused.” The bill is under consideration at a time when many other states are aiming to make their police forces more transparent, and debates around public access to police video footage are mounting. Our #tbt pick this week is February 2015 posting by FreedomInfo.org’s Toby McIntosh and myself that takes an in-depth look at the release of police body camera footage in response to public records requests.
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Happy FOIA-ing!
Tips, Tricks, and Why You Should Always Appeal FOIA Denials
National Security Archive FOIA Project Director Nate Jones in “the Vault”.
A version of this interview originally ran as an installment in MuckRock‘s “Requester’s Voice” series. Written by Michael Morisy, Edited by JPat Brown.
Nate Jones is the Director of the Freedom of Information Act Project for the National Security Archive, and editor of their Unredacted blog. For this week’s Requester’s Voice, he spoke to Michael Morisy about how he got started in public records, why you should always appeal a denial, and how that warehouse from the end of Raiders of the Lost Ark is totally a real thing.
Can you explain what the National Security Archive does?
Basically, it’s an organization that’s been fighting against government secrecy since 1985 — since Iran Contra through the Iraq wars and to the cyber wars of today. Today, we fight against secrecy in the US and abroad, and our best tool is the Freedom of Information Act. We submit between a thousand and two thousand FOIAs a year, and we’ve gotten tens of millions of pages of documents declassified. We post them on our websiteand we post them on the Digital National Security Archive, which is a site that university libraries have access to.
How did you get involved with National Security Archive, and what drew you to the organization?
Even as an undergrad student, I was working on this project that I’m still working on, about near nuclear war in 1983. Essentially, a nuclear release exercise called Able Archer 83 was a very realistic NATO drill – it was so realistic that it spooked the Soviets. They readied their nuclear forces in a way that hadn’t been seen before, the British intelligence and American intelligence kind of said ‘Oh no, what’s going on?’
It got all the way up to the President, and it had an effect on him. I was writing about this, and all the archives and all the presidential libraries said that this information was secret. It got me kind of angry as a historian.
Sure, we should redact some nuclear weapon design information, but it seemed like the public should have a right to know how close we came to nuclear war in 1983. So I filed my first FOIA, and the guy at the Presidential Library actually kind of snickered at me, as if it would never get done.
True enough, my first FOIAs weren’t very successful. So, I turned to the experts at the National Security Archive, and read all their stuff and learned, through their tips, how to effectively file FOIAs. Luckily enough, I got an internship here. Even more luckily they hired me on and haven’t got rid of me yet.
The joke is that, if the government had just properly processed my first Able Archer FOIAs, I would have went on my happy way and wouldn’t have submitted and help submit thousands, tens of thousands, more.
Given that tough start to FOIA, where do you think it shines as a transparency tool these days?
First, I guess the biggest point I would want to make is it’s a very unique tool. The US government is actually pretty good about giving information out that it wants to give out proactively.
I think Obama, when he said it would be the most transparent administration ever, that’s what he meant: That we’re going to give out a lot of data that people hadn’t released before.
But many times that’s not the most important information. The most important information is the information that the government doesn’t want to give out, but we’re lucky enough to have this law that gives the public a fighting chance to force the government to give information it wants to keep secret. That, for all FOIA’s problems and its inefficiency, is why it’s so important. It’s a tool that still gives requesters – with hard fought battles – win after win after win. FOIA forces the government to give information out that it wants to keep secret – is a very good check on totalitarianism.
That’s why I’ve said that the Freedom of Information Act is the crown jewel in the open government repertoire.
Where do you see it as falling short these days, and where does it not live up to that promise?
I’ve been thinking about this a lot, and I think that the biggest problem and shortcoming with the Freedom of Information Act is an unwillingness or inability of the people in the US government that are supposed to administrate it to tell the truth and explain the problems. There was a congressional hearing that a bunch of people testified at a while ago, actually discussing many of the problems that I’ve read on otherRequester’s Voices. On the first day, it was requesters that understand that is a tricky process, but really want to fix it. If you look on Twitter, on the hashtag #FOIA, you’ll see the same thing.
The next day, all the testimony was from people from the government on the inside. Again and again, they’ve said — maybe it’s because of the interagency review process, or they’re not allowed to say negatives – but again and again, they’ve said that FOIA was working fine, perfectly.
At one point the chair of the committee said that the head of the Department of Justice FOIA shop, OIP, must be living in la la land if they thought it was all fine.
Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.
I think he had a good point, I think that to really fix FOIA the one thing that could fix it is for people to say Okay, here’s an honest appraisal, we are taking way too long in responding to requests, we’re redacting way too much, our backlogs are too long; the reasons for it are maybe not enough resources, or requestors’ requests are too broad. They got to say, they have to say that many times the FOIA process is broken. They have to get out of la la land, speak clearly about it.
Why do you think there is that disconnect?
Sitting on the FOIA Advisory Committee has given me more perspective. I think that, unfortunately, it may be a fact of government bureaucracy, where people simply are not allowed to tell the truth. They have to get all of their statements cleared, and they can never get a statement cleared that says that some aspect of their agency is doing bad.
This is pretty obscure, but it almost reminds me of, in Czechoslovakia, of Charter 77. During government repression in early ’77, Charter 77 said, Tell no lies. Sometimes I feel like the government and FOIA folks need to give that a read, and just … we know it’s not their fault, but admit that there are huge problems. Start the dialogue of admitting that and then work towards how to fix it. FOIA experts need to evolve to have an “Inspectors General mentality.”
Even on the federal FOIA Advisory Committee, I don’t think we’ve quite gotten to that step yet. I’d love for you to get some more interviews with FOIA processors, and what their perspective is on why they can’t speak the truth about FOIA.
Do you have a favorite request you’ve filed?
First of all, working at the National Security Archive, we get maybe five, six, seven packages of documents every day. Every day it’s like Christmas, presents to open, it’s great. My favorite one has to be the President’s Foreign Intelligence Advisory report on the 1983 war game, which is the story I told you before. 12 years later, we finally got it released, probably 90% unredacted. What it said was confirmed this theory I had all along, that this Able Archer war scare was very dangerous, and it said in no uncertain terms that we were a hair trigger away from war with the Soviet Union in 1983. That probably was the closest we came to nuclear war since the Cuban Missile Crisis, except that for 30 years, the government had kept this one a secret.
The cover page of the PFIAB report, previously classified as “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON”.
Finally, after this twelve year fight that we went through – with ISCAP in this case, which the more advanced filers will know, we got the package, ripped it open, and that was a really rewarding one to win. We are still fighting a couple redactions, for the record.
What advice do you have for a first time FOIA filer?
Sure, I’ve got maybe two-and-a-half pieces of advice. The first one is, be as specific as possible. Don’t say, Any and all documents about subject X. While this is legal, it’s probably likely to get you poor results.
It’s much better to be as much as you can, your research, to name specific documents. Even if you have to kind of guess a little bit, it’s better to say talking points about this, or a briefing about this, rather than all documents that are about this. That’s because it makes it a lot easier for the person at the other end doing the search to search for it. If it’s an easier and well put together FOIA request, it makes it a lot less likely that that will go to the bottom of the pile. That’s one.
Two, always, always, always appeal. I think the government stats show that one-third of all requests that are appealed get more information.
That means the governments doing requests improperly one out of three times.
I also know that the government statistics show that less than three out of 100 FOIAs are actually appealed. If you do the math and extrapolate that out, that’s a huge swath — over 150,000 FOIAs and millions of pages of documents — that are improperly withheld the first time and continue to be improperly withheld, even though – if the statistics bear out – they would have been released had it been appealed.
Why the Archive’s motto is “appeal, appeal, appeal.”
My last half is also definitely appeal those no documents responses. You can appeal any inadequate determination, and a no responsive document response is one. When you appeal, you might have to do the FOIA job process for them sometimes, and look at the National Archives record keeping schedule, which is kind of a road map of the documents.
A lot of times when the agency says there’s no documents, that’s not correct.
One of the things I’m curious about is sort of the changing face of FOIA requesters. Do you think the media is spending enough time filing its own requests and sifting through documents? Do you think there’s a missed opportunity there?
Of course there’s always room for more FOIA requests, and the more the merrier. I think the media is far ahead of other groups. I’m a historian by training and … I think that historians under-utilize FOIA.
I think that among the historical community, there’s a problem that people are too willing to say “Oh, that history is classified so we can’t make judgments on it.” I think they should be fighting for it. I can speak for historians, I want them to file a bunch more requests.
Where did you learn about the FOIA process? Were there any other resources that you found really useful?
There are a lot of good resources out there. I would say my favorite, I hate to do self-promotion, is the National Security Archive’s Effective FOIA Requesting for Everyone. That’s a good quick read that can get your head around it. What’s also very useful, and I’m not a lawyer so I just sort of fake it, is Litigation Under the Federal Open Government Laws, it’s another book that I reference all the time. That’s a handy rundown of legal cases, which kind of is a one level beyond.
Those are the two texts I use all the time. Beyond that, I’m just really fortunate to see so many requests go in the National Security Archive, with my co-workers and analysts filing many of them. I copy that and see what tactics work and which don’t work, what agencies kind of have the FOIA spigot turned open, and if they do, hit them up. The first step for people wanting to get into FOIA is reading, I’d recommend reading theNational Security Archive’s guide. It’s free, and if you’ve still got questions, shoot me an email and I’ll help as much as I can.
Any kind of final tips or tricks that you think people should keep in mind?
Government warehouse in Raiders of the Lost Ark; good reminder to tell agencies to search their holdings at the Washington Records Center.
Here’s a great tip, and again, this is a little bit pointed towards historians. At the end of Raiders of the Lost Ark, they put the Ark in a secret government warehouse. One of those actually exists, and it is subject to FOIA, and it’s called the Washington Records Center. What happens is, agencies want to get rid of their old documents. They want to give them to NARA, but the National Archives has such a large backlog, there’s this document purgatory. Docs even sit for 30 years, maybe more, 40 years. All of these documents, the law says, are subject to FOIA. They have to be searched by the originating agency. Agencies don’t like this, because they think that they gave these documents to NARA and they’re not their problem anymore, but that’s not the law. They still have to go to this Washington Records Center, which is in Maryland actually, and search for the documents.
On any appeal on an inadequate document, if it fell into this black hole it’s probably there. The last tip on there, there is a form called the SF135. Any time they give documents to this place, to create an index of them. That could be a great tool for people to go and mine these SF135s, find the description of records they want and then FOIA them. That’s a resource that I think a lot of people don’t know about that gives good documents.
Any last thoughts?
I would say definitely read our website, read our blog with Lauren Harper’s amazing work and the content I try and do. The last thing I want to say is that I don’t want to sound morose about FOIA. It has some problems, but more often than not they can be overcome by requesters. Keep fighting, and in the long run, the documents tend to get released.
