JFK assassination records are likely the most frequently and prominently requested classified documents in the National Archives and Records Administration’s (NARA) possession. The Kennedy Assassination Records Collection Act of 1992 (JFK Act) requires that each assassination record be publicly disclosed in full by October 2017 – unless the President upholds an agency appeal and “certifies” that releasing a record would cause specific harm. The timing of the Act’s “final release date” has the potential to further affect election year politics in an election cycle already dominated by records retention, declassification, and state secrecy. This is also a timely opportunity to consider more broadly the Kennedy Assassination Records Review Board’s (the Board’s) recommendations to improve declassification practices of even the most sensitive government records.
The JFK Act of 1992 – spurred by renewed public interest in assassination records thanks to the success of Oliver Stones’ film, JFK – mandated that all federal records pertaining to JFK’s assassination be transmitted to NARA. The Act further required that each assassination record be publicly disclosed in full, and be available in the collection no later than the date 25 years after the enactment of the Act (October 26, 2017) unless the President certified that releasing the documents would cause “identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations” that outweighed the public interest in disclosure.
The Act also established the Kennedy Assassination Records Review Board (the Board), a temporary, independent agency consisting of five citizens who were not government employees but who had, for the first time in history, the “ability to order agencies to declassify government documents” and whose declassification decisions only the President could override. With its unique authority, the Board opened previously hidden CIA records from the CIA’s Directorate of Operations and FBI files that would have otherwise been protected by the FOIA’s broad law enforcement exemption. The Board also implemented a program requiring agencies sign a declaration, under penalty of perjury, that they were complying with the JFK Act.
In the 1990s the FBI was the only agency to appeal the Board’s decision to President Clinton, claiming that “the Board was directing them to declassify particular records that the FBI did not consider relevant. The Board effectively argued its case, the appeals were withdrawn, and the documents were released.” Somewhat surprisingly, the CIA never appealed any of the Board’s declassification decisions (although it did provide “inaccurate representations” concerning the relevance of records related to a deceased CIA agent named George Joannides).
As the Board itself noted, the Clinton administration “played a fairly low-key role. ‘Generally, the President just wanted people to cooperate,’ one interviewee said… Not unlike a parent coming up against sibling rivalry, the agencies ‘were told [by the Administration], ‘Work it out, because the President doesn’t want to touch this.’ A Board member mentioned that Chief of Staff John Podesta was ‘very supportive of our efforts — he never overruled the decisions of the Review Board.’ Fortunately for the Board the relationship with the Administration was smooth because ‘the wrong President could produce very different results. Clinton was very supportive, and interested in the work of the Review Board.’”
The Board’s work culminated in a collection of 318,866 Kennedy Assassination records — an estimated 5 million pages, and a wealth of insight into – and recommendations to improve – the declassification process, which are as timely now as they were when the Board delivered its final report in 1998. These recommendations include arguing “that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task.” Both bipartisan Freedom of Information Act bills currently in the House (H.R 653) and the Senate (S 337) are a good start to fulfilling this nearly 20-year-old advice, and codify the presumption of openness, thereby requiring records be released, unless there is a foreseeable harm or legal requirement to withhold them.
The Board also addressed the cumbersome referral problem, a topic covered in many Archive op-eds (read here, here, and here for blogs by the Archive’s Nate Jones from this year alone bringing attention to this lumbering problem). The Board said – in 1998 – that the “time-consuming, and expensive problem of referrals for ‘third party equities’ (classified information of one agency appearing in a document of another) be streamlined by (a) requiring representatives of all agencies with interests in selected groups of records meet for joint declassification sessions, or (b) uniform substitute language be devised to deal with certain categories of recurring sensitive equities.”
Jefferson Morley, clarifying a slide presented by Martha Murphy, head of NARA’s Special Access Branch, on NDC prioritization earlier this year, reports that 1.1% from the total collection of JFK Assassination Records collection were withheld in full (3,603 individual records); and 11% were partially withheld, and these estimated 41,000 records withheld in full or in part are the records subject to the upcoming 2017 release. NARA is currently preparing for the release and notifying agencies that have equities in the remaining documents. Murphy recently stated that NARA has “sent letters to agencies letting them know we have records here that were withheld, 2017 is coming.” Murphy further noted that “while no agency has formally requested a waiver yet, some ‘have gotten back to ask for clarification’ and are seeking ‘more information.’” Murphy noted that while she couldn’t say whether or not the records would resolve the enduring sense of mystery surrounding the assassination, she said that the records will provide a “beautiful snapshot of Cold War America and the intelligence community.”
The appeals process for the 2017 release hasn’t been disclosed yet, but a good bet is that any appeal process would include the National Security Council. There may possibly be convincing arguments to keep some documents secret for “personally identifiable information,” including tax records or social security numbers of persons who are still alive. Court sealed documents including grand jury records could also pose difficult to release.
There are also, however, many other currently censored documents — including those initially withheld to protect law enforcement and CIA information — whose release should be and easy decision. Fifty years after the assassination and 25 years after the signing of the JFK Act, there is extremely little information that can harm US national security, or law enforcement actions; and almost none of this harm can conceivably outweigh the public interest of having access to documents of such an important incident.
Unfortunately, as absurd as it seems that CIA records and information that was compiled for law enforcement purposes in the 1960s should still be protected, those arguments will likely be made. The CIA successfully argued, after all, that releasing a 30-year-old volume of the CIA’s draft “official history” of the 1961 Bay of Pigs invasion would “confuse the public” — just imagine what concerns the agency has for public confusion surrounding the Kennedy Assassination. The likely reason for these specious arguments is the fact that many secretive federal agencies do not like public oversight of any of their activities, nor like having another executive agency force them to release documents the agencies mistakenly believe are “their own.” Fortunately for the public, the Kennedy Assassination Records Collection Act of 1992 has already largely set this precedent — for one narrow slice of documents.
If, then, agencies do appeal the release of any of the remaining 41,000 documents, will a lame-duck President Obama — or his successor — listen and help agencies keep the 50-year-old records secret? Hopefully not. And since it’s possible that the next president will determine the fate of the remaining secret JFK records — and that their stance on the records’ release may be a good tell on their views on openness and transparency — the media should start getting candidates on the record now.
The Office of Government Information Services (OGIS), the federal office created to facilitate the FOIA process, first began posting a sampling of its final response letters online in 2013. In the first two years of these OGIS postings, approximately thirty letters responding to requests for help resolving FOIA disputes were placed on the OGIS website. OGIS has dramatically increased the numbers of final response letters it has posted this year, however, and has already posted well over one hundred final response letters for fiscal year 2015 online. This rise in the number of posted response letters allows for a greater glimpse into the common problems encountered in the FOIA process, as well as several extremely useful lessons for requesters using FOIA in order to declassify and release government documents.
Several of OGIS’s final response letters answer requesters who contacted the office for help with issues that fall completely outside of OGIS’s jurisdiction. For instance, one response observes: “It appears that you seek assistance in researching your family history. Please know that OGIS’s mission is to review Federal agency compliance with the FOIA and….we are not able to assist you with researching your family history.” However, the response continues to suggest several helpful strategies to facilitate and expedite the requester’s search at the National Archives and Records Administration (NARA). Another requester asked OGIS to initiate a lawsuit on their behalf. Although this action lies outside the office’s purview, OGIS’s response contained information referring the respondent to the relevant statutes involved in initiating a FOIA lawsuit independently.
Others contacted OGIS because their FOIA requests had originally been denied or delayed due to imprecision in the filing process. One request was delayed for eight to ten months because many thousands of responsive pages required extensive review and redaction before they could be released. This demonstrates the importance of specificity and proper scope when filing FOIA requests. Another letter to OGIS objected to the prohibitively large estimated fees involved in an agency processing their FOIA request. The petitioned agency rejected the requester’s claim “to be treated as a representative of the news media for the purpose of fees.” OGIS’s response letter explained that it was “generally not sufficient to simply state that you belong in a fee category” and suggested the requester provide the agency with a publication contract if he or she wished to be considered a freelance journalist in order to qualify for a fee category.
Some letters answered by OGIS directly reflect the red tape and bureaucratic rigidity encountered by FOIA requesters. The Social Security Administration (SSA) rejected one requester’s attempt to obtain information about a deceased family member without proof that the person concerned was actually dead. Attempting to point out the absurdity of these grounds for rejection, the requester responded that their deceased family member would now be 114 years old if he or she were still alive. Another rejection from NARA’s Jimmy Carter Presidential Library and Museum in response to a separate request utilized the “Glomar” provision, which neither confirms nor denies the existence of the requested records. This provision is used to obfuscate when even the act of admitting the existence of a record could reveal a fact exempt under the provisions of FOIA.
Perhaps the most inflexible response to be found in this sampling of 2015 final response letters involves the appeal deadline of the U.S. Immigration and Customs Enforcement (ICE). In July, a FOIA appeal to ICE was rejected on the grounds that the deadline for processing an appeal had expired “well before” the receipt date. In fact, the deadline fell on a weekend and the appeal could not be delivered. Postal records revealed that the appeal was then delivered on the very first business day following this date. This behavior, documented and shared by OGIS, seems to show a FOIA office that is more concerned with closing out cases and improving reporting numbers than one striving to release as much information as possible to the public. Though the ICE FOIA office initially considered the appeal “untimely,” it eventually agreed to reopen and process the appeal after the requester enlisted OGIS’s help.
These final response letter examples posted to the OGIS website demonstrate many of the difficulties encountered by requesters, but they also reveal the potential effectiveness of OGIS and the appeals process. The drastically increased number of letters available online this year provides a number of useful lessons to those of us trying to utilize FOIA to declassify government documents. The OGIS website and its blog, The FOIA Ombudsman, contain a significant amount of other useful information for both requesters and processors. Hopefully this year’s rise in publicly available final response letters is only the beginning, and future years will continue to develop in this direction towards increased transparency and decreased FOIA mistakes.
ODNI Says Whistleblowers Comparable “Insider Threats” to Spies and Murderers, Suggests Anyone who Damages Agency Reputation Should Be Considered a Threat: FRINFORMSUM 11/19/2015
Exonerated whistleblower Thomas Drake – who helped shed light on the National Security Agency’s mass domestic surveillance practices in 2005 and who the government was forced to drop all 10 espionage-related charges against after he rejected a series of plea deals – is, according to the Office of the Director of National Intelligence’s National Insider Threat Task Force, a comparable threat to Ft. Hood and Navy Yard shooters Nidal Hasan and Aaron Alexis, respectively. The astounding leap was made earlier this week during a webinar entitled “Simple Steps and Guidance to Secure Classified Networks” and PowerPoint presentation given by ODNI official Patricia Larsen. The slide immediately preceding Drake’s un-ironically lists “Exonerated innocent individuals” as one of the many successes of the government’s insider threat programs.
The PowerPoint also lists Drake’s fellow whistleblower Edward Snowden as another dangerous insider threat. Earlier this week CIA director John Brennan lamented the constraints placed on spy agencies after Snowden’s leaks shed more light on the NSA’s bulk surveillance, and suggested that the leaks made it more difficult for law enforcement and intelligence agencies to detect and prevent the Paris attacks. Brennan’s comments were remarkably callous considering, among other things, that the perpetrators were already known to law enforcement, that indications are that their cell phones were unencrypted, that “the most consequential” restraint placed on spy agencies post-Snowden – terminating the bulk collection of the NSA’s phone data – hasn’t gone into effect yet, and “Nothing has changed since that revelation to restrict the NSA’s ability to sweep up communications exclusively among foreigners, as was apparently the case for the plot in France.” Brennan’s agenda-pushing comments were not, however, surprising, considering the spy chief is the same man who lied to the Senate Intelligence Committee about spying on Senate staff investigating the CIA’s torture program after accusing the Senate staff of inappropriately accessing CIA documents, and then cleared all senior agency officials of any wrongdoing.
Larsen also troublingly claimed during the insider threat webinar “that any employees and contractors who damage an entity’s reputation, be it government or business, by exposing inside information should be considered insider threats, as they ‘would be in the business world.’” The implication here is a chilling one to whistleblowers trying to shed light on agency wrongdoing. Other targets of the ODNI presentation include “anonymous dropbox services used by news organizations, like SecureDrop at the Washington Post, New Yorker, The Guardian, The Intercept and Gawker.”
The House Oversight Committee is asking Secret Service head Joseph Clancy to explain why his agency “appears to be trying to identify whistleblowers” while vowing to fix the problems the whistleblowers exposed. In a letter co-signed by Jason Chaffetz (R-Utah) and Elijah Cummings (D-Md.) the Committee reiterated that “Secret Service personnel — like all federal employees — have a constitutional right to communicate with Congress under the First Amendment, and it is against the law to deny or interfere with an employee’s right to furnish information to Congress”. Chaffetz called the Secret Service’s investigation to discover the whistleblower “highly inappropriate”, while Clancy defended the agency’s position, saying “Everyone knows whistleblowers perform an important function,” going on to say, “You gotta, uh, let them go.”
Video recoding of the FOIA Advisory Committee’s latest meeting, which was held on October 20, is still unavailable online. The unexplained delay makes it harder for stakeholders – with no way of knowing what was said at the meeting until a transcript of it was posted today, a month after the meeting has held – to promote the Committee’s efforts to improve and modernize FOIA administration. The Obama administration’s second Open Government National Action Plan expressly called the committee a FOIA Modernization Advisory Committee, making the Committee’s decision not to continue to take full advantage of inexpensive live-streaming devices that were used for its first few meetings sadly ironic. It is unclear why this practice of live-streaming the meetings was abandoned in favor of posting footage and transcripts (weeks? months?) later, although one theory is that 508 compliance requirements — making government documents as accessible to those with disabilities as those without — factored in the delay (which, if true, would further call into question the Committee’s commitment to its mandate to utilize technology to modernize FOIA). What is clear, however, is that the open government community would be better served having its own representatives recording the next meeting to help ensure we have prompt (real time) access to what is going on at these public meetings. The Office of Government Information Services, OGIS, the FOIA ombuds that provides funding and administrative support for the Committee, has said that the video will be posted soon, but offered no firm dates. Unredacted will post an assessment of the meeting as soon as the video is available. Any open government interns volunteer to stream the next meeting on their iPhone?
Adam Marshall of Reporters Committee for the Freedom of the Press has published an excellent rundown of the “release to one, release to all” pilot program for FOIA-released records, which seven agencies are taking part in. The Archive’s Nate Jones notes that the results of the pilot program three months in allay concerns from journalists that they would get “scooped” if agencies posted their FOIA requested-records to them and the public at the same time, noting that the documents are hidden in plain sight. USA Today’s Brad Heath also said he hasn’t noticed an impact on his journalistic abilities, but said before you can “release to one, release to all, you have to release to one.”
The Supreme Court will not hear New Hampshire Right to Life v. Department of Health and Human Services, No. 14-1273, a case seeking Planned Parenthood records sent to HHS for grant money “as well as internal HHS documents describing its plan to go ahead with the grants” under the FOIA. SCOTUS’s decision means that the United States Court of Appeals for the First Circuit’s decision, that the documents were protected by FOIA’s Exemption 4 concerning records containing “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” stands. Justices Clarence Thomas and Antonin Scalia “dissented, saying disagreements in the lower courts over the scope of the open records law, the Freedom of Information Act, warranted Supreme Court review.” The plaintiff also asked the Court to clarify Exemption 5, “which exempts from disclosure intra-agency memos or letters which would not be available if sought in a civil case in federal court. The dissenters did not discuss that challenge.”
A report released this week by the Department of Justice found that black Americans are twice as likely “to experience nonfatal force or the threat of force from police” (the study defines non-fatal use of force as anything from shouting, cursing, to using tazers or pointing a gun). While interesting and timely on its own, data-journalists may be especially interested to know that the report was based entirely on data collected by the Bureau of Justice Statistics’ Police-Public Contact Survey (PPCS). The Bureau of Justice Statistics is a component of the DOJ whose website houses a wealth of data on courts, crimes, and law enforcement and is worth a visit by data-hounds.
The U.S. Citizenship and Immigration Service (USCIS) has one electronic form to show for its four-year, $3.1 billion effort “to replace its antiquated approach to managing immigration with a system of digitized records, online applications and a full suite of nearly 100 electronic forms.” The Washington Post reported that the program was mismanaged from the outset, and that as early as 2012 officials at USCIS’ parent agency, the Department of Homeland Security (DHS), “were aware that the project was riddled with hundreds of critical software and other defects. But the agency nonetheless began to roll it out, in part because of pressure from Obama administration officials who considered it vital for their plans to overhaul the nation’s immigration policies, according to the internal documents and interviews.”
The number of secrecy orders in effect at the end of fiscal year 2015 is 5,579 – the most in a decade. Most of these orders, which are placed on patent applications if the government believes that “granting the patent and publishing it would be ‘detrimental’ to national security,” are renewals of previously granted secrecy orders. Steven Aftergood noted that a FOIA request to the US Patent and Trademark Office showed that there were only “95 new secrecy orders imposed last year, while 36 prior orders were rescinded.” Three of the newly rescinded orders have been identified thanks to a FOIA request sent to the USPTO; these are:
“Patent Number 9057604: Point-ahead laser pointer-tracker systems with wavefront correction in both transmit and receive directions. Filed in April 1989, the patent application was finally granted in June 2015.
Patent Number 9115993: Fused PM fiber single-polarization resonator. It was filed in August 1990 and granted in August 2015.
Patent Number 9181140: Solid propellant bonding agents and methods for their use. It was filed in December 1993 and granted in November 2015.”
This week’s #tbt document pick is a 2001 posting on President Richard Nixon’s decision to halt the US biological warfare program, a posting that includes the official history of the Army’s activities in the US biological weapons program.
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A British report entitled “The Detection of Soviet Preparations for War Against NATO” 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. Within weeks, a First Tier British tribunal on Information Rights will decide if this key 32-year-old report will be released to the public or will remain censored by the Cabinet Office for the foreseeable future.
As has been widely reported, the British FOIA law is under attack. MP Chris Grayling has alleged that journalists “misuse” the Freedom of Information Act to create stories. (Here are 103 stories that journalists utilized the British FOIA to write, presumably “correctly.”) More threateningly, a British government commission has been created “to consider new restrictions to the [Freedom of Information] Act.” According to The Guardian, the five-member commission is composed of “Jack Straw, the former foreign secretary, who is already on the record calling for the act to be rewritten; Lord Carlile of Berriew, who accused the Guardian of ‘a criminal act’ when it published stories using National Security Agency material leaked by Edward Snowden; Lord Howard, whose gardening expenses were criticised after being exposed following FoI requests; and Dame Patricia Hodgson, the deputy chair of Ofcom, which has criticised the act for its ‘chilling effect’ on government.”
But even without the law’s pending wing-clipping, the British Cabinet Office (the office responsible for supporting the Prime Minister) is arguing that a 32-year-old report of an historic event of immense public interest should be withheld –without even being reviewed– forever.
The report, entitled “The Detection of Soviet Preparations for War Against NATO” and written in early 1984, describes an “unprecedented Soviet reaction to Able Archer 83,” a realistic NATO nuclear release drill. After the British warned the United States of this danger, US intelligence reported “a high level of Soviet military activity, with new deployments of weapons and strike forces.” CIA Director William Casey warned President Ronald Reagan and other cabinet officials of the “dimension of genuineness” and “high military costs” of the Soviet actions.
The United States’ comprehensive, all source intelligence report on the War Scare, entitled “The Soviet ‘War Scare'” was finally declassified last month, after a twelve-year fight by the National Security Archive. It concluded that the West “may have inadvertently placed our relations with the Soviet Union on a hair trigger;” that President Reagan was “given assessments of Soviet attitudes and actions that understated the risks to the United States;” and that the report’s authors hoped their report would prompt “renewed interest, vigorous dialogue, and rigorous analyses of the [War Scare].”
So what is the British Cabinet Office so afraid of?
It’s not at all clear. At first, the Cabinet Office cited three exemptions (23 – information supplied by some security bodies, 24 – “national security,” and 27 – “international relations” ) to prevent the historic report’s release. Months later, the Cabinet Office stated that it had turned course, and would review the document to determine if “some of the disputed information could be disclosed.” But then the Cabinet Office reversed itself again, declaring –without reviewing the document as it had previously pledged– that the entire document was categorically exempted under exemption 23; for some undeclared reason, the Office abandoned its use of exemptions 24 and 27.
The British Information Commissioner, Christopher Graham, nominated in 2009 and charged to oversee the Freedom of Information Act, has rubber-stamped the Cabinet Office’s claims –without reading the 32-year-old document for himself.
This means that the last best chance for the release of “The Detection of Soviet Preparations for War Against NATO” is the First-tier Tribunal for Information Rights.
Here is the Archive’s complete argument to the tribunal, which:
*includes an overview of the plethora of documents already released about the incident, including British Ministry of Defense documents, documents about the US role, such as the officially released photographs of the spy who helped reveal the danger, Oleg Gordievsky, meeting with President Reagan, and the declassified US “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON” comprehensive report of the danger, which in all likelihood discloses the majority of secrets in the JIC report that the Cabinet Office is foolishly attempting to protect;
*presents a timeline showing that the Cabinet Office repeatedly missed the deadlines set by the tribunal, and made promises to review the document for a partial release –which it reneged upon;
*and makes the technically important argument that much in “The Detection of Soviet Preparations for War Against NATO” is derived from ministries –including Defence and Foreign Affairs– which are not categorically exempt from the British FOIA. In fact, the Joint Intelligence Committee –which produced the report in question– has already produced one official history, and is working on its second. The JIC has also released other reports of much more recent and sensitive topics, including UK intelligence on the Assad Regime’s use of chemical weapons in Syria. There is no reason why this report from 1984, cannot be reviewed, redacted if necessary, and released to the public.
And as we were going to press, we learned that the issue of the unnecessary secrecy still surrounding the 1983 War Scare has now reached Parliament. (We were alerted by Peter Burt of the Nuclear Information Service, which has done more than any other organization for the release of British documents on Able Archer 83.) On November 10, Paul Flynn representing Newport West asked two questions. The answers he received on November 17 were disappointing.
Q1: To ask the Secretary of State for Defence, whether the Government has been provided with a copy of the US President’s Foreign Intelligence Advisory Board report of 15 February 1990, entitled The Soviet ‘War Scare’, by the US administration.
A1 (Penny Mordaunt): The document referred to by the hon. Member is available in redacted version over the internet. This Department has no record of receiving a copy from the United States administration.
Q2: To ask the Minister for the Cabinet Office, if he will place in the Library a copy of the 1984 Joint Intelligence Committee paper JIC(84)(N)45, entitled Soviet Union: concern about a surprise NATO attack.
A2: (Mr Oliver Letwin): It would not be appropriate to release this report on grounds of National Security.
That the US did not share its comprehensive PFIAB report with the British, despite it being based largely on information shared by the British is a bit of a revelation. (Though, it was classified “NOFORN.”)
That a representative for the Cabinet Office would simply claim “National Security” to reject the request of a Member of Parliament to release a 32-year-0ld historically important document to the public exposes the callous, poor judgement of the Cabinet Office.
Despite the Cabinet Office’s refusal to release the record, the fact that a Member of Parliament has requested a copy of the document does demonstrate to the Tribunal that there is a large public interest in the record, and that the Tribunal should consider its release.
The National Security Archive is hopeful that the Tribunal will force an actual review of the document and release the portions which will not harm the national security of the United Kingdom (likely the majority). But we are also extremely disappointed that it has come to this. The British Cabinet Office and Information Commissioner of the nation that created the vaunted “Twenty Year Rule” should not be arguing to withhold a key 32-year-old historic document about one of the most important nuclear episodes in our history without a review.
It’s sadly ironic that the government which first alerted the US to the potential nuclear danger of Able Archer 83 is now leading in its concealment.
DOJ Tells Archivist Not to Do His Job; Govt Argues OLC Memos both Authoritative and “Pre-Decisional”, and Much More: FRINFORMSUM 11/12/2015
The Presidential and Federal Records Act Amendments of 2014 gives the Archivist of the United States the binding legal authority to determine whether or not something constitutes a federal record. This clear delineation of the Archivist’s authority raises serious questions about the Department of Justice’s instruction to NARA that it not make precisely this determination about the Senate Intelligence Committee’s report on the CIA torture program. Senator Dianne Feinstein revealed the DOJ’s insistence that the Archivist of the United States not faithfully fulfill its vital function in a letter to Attorney General Loretta Lynch, in which the Senator protests the DOJ’s refusal to allow its own officials, as well as those of the Defense Department, the CIA, and the State Department, to read the report under the pretense that its status as congressional or executive branch record is unclear. Feinstein’s letter notes that “personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the Study constitutes a federal record under the Federal Records Act because the FOIA case is pending.” As national security law expert Douglas Cox said earlier this year, perhaps the Archivist of the United States, David Ferriero, “should get his boots on” both to ensure that this important record is preserved and to prevent the Justice Department from superseding the National Archives and Records Administration’s authority.
Two of the government’s foremost lawyers recently told attendees of the American Bar Association’s Standing Committee on National Security Law that agencies are shying away from requesting Justice Department Office of Legal Counsel (OLC) opinions in favor of seeking “informal” and unwritten advice out of concerns the OLC opinions will be sought under the FOIA. The CIA’s General Counsel Caroline Krass told the audience, and acting OLC head Karl Thompson confirmed her assessment, that FOIA has “served as a deterrent to some in terms of coming to the office to ask for a formal opinion.”
The Brennan Center’s Elizabeth Goitein and the ACLU’s Brett Max Kaufman rebutted Krass and Thompson’s assertions in a series of postings for Just Security. Goitein argues that OLC memos cannot simultaneously constitute working law whose decisions are binding while remaining exempt from disclosure under FOIA’s Exemption 5 on the basis that they are “deliberative” and “pre-decisional.” Goitein suggests, “Perhaps the solution is simply to require the government to abide by its own characterization. If OLC opinions are to be given the status of deliberative documents and/or legal advice, so be it; but in that case, they cannot be binding on any agency or official, nor can they mitigate any official’s criminal or civil liability.” If the opinions are indeed authoritative, however, they are law and must be made available to the public.
In addition to questioning the existence of FOIA’s “chilling effect” on agencies requesting OLC opinions in the first place, Kaufman says that “For government lawyers to protest that they cannot do their jobs because their advice might one day see the light of day, allowing the public to hold them accountable for what they do in the public’s name, betrays an impoverished view of how our government is supposed to work. In passing FOIA, Congress did not ignore these lawyers’ concerns — it decided they were subservient to the value of transparency in our democracy.”
The government’s response to EPIC’s Supreme Court case concerning the Department of Homeland Security’s (DHS) “internet kill switch” policy – SOP 303 – is due on November 13. “EPIC has pursued public release of the government policy since BART subway officials shut down cellphone service during a peaceful protest in 2011.” EPIC won its district court case against DHS in 2013 when a federal judge ruled “that the DHS may not withhold the agency’s plan to deactivate wireless communications networks in a crisis… The federal court determined that the agency wrongly claimed that it could withhold SOP 303 as a ‘technique for law enforcement investigations or prosecutions.’ The phrase, the court explained, ‘refers only to acts by law enforcement after or during the prevention of a crime, not crime prevention techniques.’” The government appealed, and a federal appeals court reversed the lower court ruling.
The State Department has declassified a 1963 memo from Director of Central Intelligence John McCone to State Secretary Dean Rusk showing DCI McCone saying, “that the CIA had ‘good reproductions’ of Soviet satellite imagery.” The memo begs the question of whether the CIA had the capability to see what the Soviet satellites were seeing, and if so, how? Steve Aftergood, who highlighted the finding in a recent blog posting, notes, “Assuming the McCone statement is accurate, it would seem to imply one of a few possibilities. It could mean that the US was somehow intercepting the Soviet images (which seems improbable), or that it was replicating the images through US overflights, or else that it was simply modeling the images based on the presumed capabilities of the Soviet satellites and their orbital parameters.”
President Obama will not waive spy Jonathan Pollard’s parole requirement to stay in the US under supervision for the next five years, despite Pollard’s – and his supporters’ – wish to see him go to Israel. The terms of Pollard’s sentencing after his 1985 arrest and subsequent conviction of spying for Israel made him eligible for parole this year, and the U.S. Parole Commission has already approved his Nov. 20 release. The National Security Archive published an Electronic Briefing Book (EBB) in 2013 on the Pollard case, which includes a declassified 1987 CIA damage assessment that details the specific subjects Pollard’s Israeli handlers requested he steal, including documents on Syrian drones and central communications, Egyptian missile programs, and Soviet air defenses.
Archive Director Tom Blanton recently discussed the above-Top Secret President’s Foreign Intelligence Advisory Board (PFIAB) report on the NATO nuclear release exercise Able Archer 83 – released to the Archie last month after a 12-year battle – with the New York Times. Blanton told the Times, “This new report is the first all-source assessment, as of 1990, and should clinch the debate: This is hugely important. This war scare was real.” The PFIAB found that the US “may have inadvertently placed our relations with the Soviet Union on a hair trigger,” among other sobering assessments. Blanton told the Times, “Turns out, 1983 is a classic, like the Cuban missile crisis, where neither superpower intended to go nuclear, but the risk of inadvertence, miscalculation, misperception were just really high. Cuba led J.F.K. to the test ban. Nineteen eighty-three led Reagan to Reykjavik and almost to abolition.”
Archive FOIA Project Director Nate Jones has led the Archive’s fight to help fill “an echo chamber of inadequate research and misguided analysis” on the War Scare, filing declassification requests for relevant information from US, Canadian, and British archives. While this effort has won the release of more than 1,000 pages of previously secret documents, it has also encountered needless and dubious secrecy from both sides of the Atlantic. Toby McIntosh’s ongoing reporting for FreedomInfo.org on rollbacks to the UK’s FOI administration is concerning for this and other historically important documentation projects.
NARA, in a little-known but very useful service, has preserved a one-time snapshot of agency web sites (sites ending in “.gov” or “.mil”) on or before January 20, 2001. NARA also captured federal web sites in 2004, and Congressional web sites in 2006, 2008, 2010, 2012, and 2014.
This week’s #tbt pick is a 2008 posting by Archive fellow Barbara Elias, and contains a dozen declassified documents on the US’s 1998 cruise missile strikes against al-Qaeda in response to terrorist attacks on US embassies in Kenya and Tanzania – and how they may have backfired.
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Thirty-two years ago, a NATO nuclear release exercise named Able Archer 83 “may have inadvertently placed our relations with the Soviet Union on a hair trigger,” according to an above-Top Secret President’s Foreign Intelligence Advisory Board report released last month to the National Security Archive after a twelve-year fight. The release sparked extensive media coverage including a front-page story in The Washington Post. To mark this anniversary, the Archive has launched a new edition of its Able Archer Sourcebook, the largest collection of declassified documents on the 1983 War Scare, now available at http://nsarchive.gwu.edu/nukevault/ablearcher/.
The more-than-thousand page Sourcebook includes:
*Archive analysis of the hundred-page PFIAB report, the only government study written with access to all US intelligence files on US/NATO actions and the Soviet response in the fall of 1983.
*STASI, KGB, and other Warsaw Pact documents describing the creation, implementation, and end of Operation RYaN (RYaN is the Russian acronym for “nuclear missile attack”), launched to detect Western preparations for a preemptive first strike against the Soviet Union.
*After-action reports of Able Archer 83 that reveal indicators that could have spooked the Soviets, such as a 170-flight, radio-silent air lift of 19,000 US soldiers to Europe, “new nuclear weapons release procedures,” and bombers taxiing out of hangars carrying “realistic-looking dummy warheads.”
*British records describing “an unprecedented Soviet reaction to Able Archer 83 and other reports of alleged concern about a surprise NATO attack,” which led senior British ministers and intelligence chiefs to “urgently consider how to approach the Americans on the question of possible Soviet misapprehensions about a surprise NATO attack.”
*And documents utilized by “Deutschland 83,” a hit 2015 AMC Sundance/RTL production portraying the 1983 Able Archer War Scare in East and West Germany. One declassified map visually displays the exercises that comprised Autumn Forge 83 — the umbrella European-wide NATO exercise that was capped by Able Archer 83’s simulated nuclear war against the Warsaw Pact. The names of each of the episodes of “Deutschland 83” – including “Quantum Jump,” “Atlantic Lion,” “Northern Wedding,” and Bold Guard” – appear on the map; they were actual NATO exercises conducted during Autumn Forge 1983, which contributed to the War Scare.
To read the documents and analysis of the 1983 War Scare by the National Security Archive’s Nate Jones, who obtained most of these materials, visit the Able Archer Sourcebook.
DEA Races to Bottom of FOIA Barrel, Database of WWII Soldiers Army Ran Chemical Experiments on by Race, and Much More: FRINFORMSUM 11/5/2015
The Drug Enforcement Administration (DEA) is claiming that all 38 pages of documents responsive to Archivist Jeffrey Richelson’s FOIA request for records concerning either the legality of the agency’s now defunct phone records program, or the directive to terminate it, are exempt. It was revealed earlier this year that the phone records program “tracked billions of Americans’ [international] phone calls, even people not suspected of crimes, for decades” –from 1992 until 2013 – and was “a clear precursor to the NSA program.” The DEA cites a handful of FOIA Exemption 7 sub-clauses concerning information compiled for law enforcement purposes to withhold the documents, which were located by both the DEA’s Office of Chief Counsel and the Intelligence Division.
It’s worth mentioning here that in February 2015, documents released to C.J. Ciaramella and MuckRock showed that the DEA employs a practice known as “parallel construction” – construction of two difference chains of evidence – to “hide surveillance programs from defense teams, prosecutors, and a public wary of domestic intelligence practices.” In the same release, which outlines four “acceptable methods” of concealing sensitive sources that “Americans will accept (so far…)” including parallel construction, the DEA redacted all references to a widely-used “workable” method by citing, yet again, Exemption 7. As Shawn Musgrave points out, “To reiterate, the DEA redacted the name of a method its trainers and legal auditors deemed not only constitutional but also palatable to the public.” These practices, combined with blanket FOIA denials, help ensure that the DEA remains even less transparent than its intelligence community counterparts. The DEA ought to take a page from DNI Clapper’s book instead, and “Be proactive and clear in making information publicly available.” (The DEA also doesn’t post any FOIA-requested records in its FOIA reading room, despite the nearly 20-year-old E-FOIA amendments requirement that agencies systematically post records released through FOIA.)
The DEA is also frustrating Providence journalist Philip Eil’s efforts to obtain “thousands of pages of public evidence from” one of the largest prescription drug trials in US history, compelling Eil to file a FOIA lawsuit for the records’ release. In 2012 Eil filed a FOIA request with the DOJ’s Executive Office of U.S. Attorneys for the federal trial evidence used to convict Dr. Paul Volkman, deemed by the DOJ to be the “largest physician dispenser of oxycodone in the United States from 2003 to 2005”, and who received four consecutive life sentences as a result of the trial. The DOJ transferred the request to the DEA eight months after receiving Eil’s request, at which point the DEA “began to review 15,000 pages and over time processed portions of them, releasing about 1600 pages to Eil and redacting much of the information under” FOIA Exemption 7. Eil filed suit over the egregious withholdings, and notes, “The right to a public trial is a basic tenet of our society, and it’s scary to think that any trial in the United States, especially one of this magnitude, would be retroactively sealed off from public view, as this case has.”
NPR has built a database of nearly 4,000 names of WW II soldiers that the Army ran chemical experiments on according to race. While the DOD declassified documents in 1993 revealing that it had exposed some 60,000 enlisted men to mustard gas and other chemical agents, it concealed that the tests were conducted by race – a revelation that came to light thanks to NPR’s Caitlin Dickerson’s interviews and FOIA-based reporting. According to Dickerson, African-American, Japanese-American and Puerto Rican enlisted men served as proxies “so scientists could explore how mustard gas and other chemicals might affect” enemy troops, while white soldiers were used as scientific control groups. VA officials recently told NPR “that since 1993, the agency had been able to locate only 610 test subjects, to offer compensation to those who were permanently injured. NPR’s database, compiled over six months, includes more than 3,900 individuals and information about the last known location of more than 1,700 of them.”
LexisNexis Immigration Law Community editor and contributor Daniel M. Kowalski has added two sets of FOIA-released documents from the Department of Homeland Security (DHS) to the site’s immigration law legal newsroom. The sets detail illegal immigration across the US’s southern border and the location of facilities for unaccompanied minors.
The Department of Homeland Security recently announced that its component agencies will be required to obtain search warrants before using Stingray cell phone surveillance devices – with the Secret Service being the exception in certain circumstances. In its announcement, the DHS reiterated the Justice Department’s legal arguments requiring users to obtain a warrant, which specifies “emergency circumstances when law enforcement can go around the Fourth Amendment.” Senator Leahy said in response to the DHS position that, “I am disappointed that DHS has included the same problematic exception to the warrant requirement that is in the Justice Department’s policy. Additionally, this policy is limited to criminal investigations, and it is not clear what rules will apply to any use of cell-site simulators for other DHS missions.”
The Director of National Intelligence’s Open Source Center, which has collected and analyzed open source intelligence information across all media since 2005, has been re-designated the Open Source Enterprise and incorporated into the CIA’s new Directorate of Digital Innovation (DDI). The Open Source Center itself replaced the CIA’s Foreign Broadcast Information Service, and provided “a publicly available line of products, including translations and open source analyses” until the service was abruptly cancelled in 2013. While CIA spokesperson Ryan Trapani said the Open Source Enterprise has no plans “to expand the scope of its services to include the regular release of unclassified, non-copyrighted materials to the public”, Steve Aftergood has posited, “the new ODNI transparency implementation plan may present an occasion to reconsider the CIA non-disclosure policy regarding unclassified open source products.”
A new interactive online tool built by the FBI to help teachers and students identify extremists is being criticized for focusing too heavily on Islamic extremism, despite the fact Islamic extremism has not been a factor in the latest spate of school and mass shootings in the US. The program, entitled “Don’t Be a Puppet,” was developed despite a May 9/11 review commission report that cautioned that the FBI was not “‘an appropriate vehicle’ for producing prevention programs to counter violent extremism.”
The D.C. Court of Appeals recently ruled that a US citizen has no constitutional recourse to sue the FBI agents involved in his alleged abduction and torture while on a 2006 trip to Africa “to broaden his understanding of Islam.” Judge Janice Rogers Brown wrote, “Matters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization,” with Judge Brett Kavanaugh agreeing, writing separately that “it’s up to Congress, not the courts, to decide whether U.S. officials can be sued for conduct in foreign countries ‘in connection with the war against al Qaeda and other radical Islamic terrorist organizations.’”
A Navy admiral who illegally retaliated against suspected whistleblowers is likely being promoted. The Defense Department inspector general upheld three out of five allegations that Rear Adm. Brian L. Losey wrongly fired, demoted, or punished subordinates “during a vengeful but fruitless hunt for the person who had anonymously reported him for a minor travel-policy infraction” and recommended the Navy take action against Losey for violating whistleblower protection laws. The Navy, however, dismissed the findings. Retired Army Special Forces colonel Fredrick D. Jones served under Losey and told The Washington Post, “The lack of action demonstrates the Whistleblower Reprisal Protection Act’s ineffectiveness in protecting victims, and highlights the lack of accountability for those individuals who have broken the law.”
Deputy Attorney General Sally Yates cautioned, on the eve of the early release of thousands of federal inmates, that the Bureau of Prisons most successful training and re-entry program, Federal Prison Industries (FPI), is half the size of what it was ten years ago. The program dramatically impacts participants’ recidivism rates, and has a waiting list of nearly 11,000. Despite prisoners’ demand for the program, Yates noted that a “reduced demand” – presumably from prisons themselves – has caused it to shrink. Yates also said that the DOJ will be examining the BOP’s literacy programs, noting that “In the coming months, we plan to take a hard look at the Bureau of Prisons’ literacy efforts and roll out changes,” going on to say that, “No one should leave the Bureau of Prisons without being able to read.” While this is admirable, it remains to be seen what effect this will have – if any – on the growing network of for-profit prisons.
This week’s #tbt document pick is chosen with the anniversary of the Iranian hostage crisis, which began 36 years ago this week on November 4, 1979, in mind. This week’s #tbt pick is a selection of American sources on U.S.-Iran relations since World War II.
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