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Malcolm Byrne tells CSPAN2 “There are virtually no heroes” in Iran-Contra Scandal.

March 30, 2015
Malcolm Byrne appearing on C-SPAN2's BookTV, September 21, 2014.

Malcolm Byrne appearing on C-SPAN2’s BookTV, September 21, 2014.

National Security Archive Deputy Director Malcolm Byrne recently discussed his latest book, Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power, with the Brookings Institution’s Bruce Riedel, who wrote the book’s foreword, and CSPAN2’s BookTv.

Iran-Contra utilizes tens of thousands of pages of previously classified materials to describe in detail all the administration’s decisions and actions, and discusses the rationales invoked at the time as well as after the fact. Byrne’s is the first full-length account of the affair to study not only the affair itself but to assess the various official investigations that were convened — the Tower Commission, the joint congressional hearings, and the independent counsel’s inquiry.

Byrne ultimately concludes that the affair could not have occurred without awareness and approval at the very top of the U.S. government. He reveals an unmistakable pattern of dubious behavior — including potentially illegal conduct by the president, vice president, the secretaries of state and defense, the CIA director and others — that formed the true core of the scandal.

Highlights from Byrne’s recent interview with Riedel and CPSAN2 focus on the book’s main conclusions and include the following:

Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power

Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power

What was President Reagan’s role in the Iran-Contra scandal? (around the 6:30” mark)

When analyzing President Reagan’s role in the scandal, while acknowledging the story is a multilayered one, Byrne says, “I see Reagan as being the driving force behind the scandal, both elements of the scandal.” Byrne goes on to say Reagan provided the guidance and cultivated the atmosphere that allowed members of his administration, including National Security Council staffer Oliver North, and National Security Advisors Robert McFarlane and John Poindexter, to act as they did.

How did the U.S. decide to negotiate with terrorists to release U.S. hostages held in Lebanon? (around the 11 minute mark)

To help answer another multilayered question, Byrne notes that Reagan’s emotional attachment to the hostage crisis characterized his response. Of additional importance was David Kimche, Director-General at the Israeli Ministry for Foreign Affairs, approaching McFarlane in late spring of 1985 with a message from Israeli Prime Minister Shimon Peres. Kimche said Peres and the Israelis were willing to help the U.S. in understanding the new Islamic Republic of Iran if the U.S. wanted assistance. One of the ideas floated in later discussions with the Israelis was that selling Iran, then nearly five years into the Iran-Iraq War, U.S. weapons would be a valuable demonstration of American good faith.

The idea of selling arms to Iran became a reality when Reagan met with McFarlane in the summer of 1985 and began discussing the arms trade in earnest, with Reagan eventually telling McFarlane, “let’s do it.” Both Secretary of Defense Caspar Weinberger and Secretary of State George Shultz acquiesced to the possible opening; each telling McFarlane, in effect, “it’s OK by us, go ahead and pursue this,” albeit with caveats.

What was CIA Director William Casey’s role in the Scandal? (around the 19 minute mark)

Casey’s role in the scandal was critical. Within months of taking office after Reagan’s election he had sent draft Presidential findings –which authorized covert action– on Iran, Nicaragua, and El Salvador, to the President’s desk; these findings ultimately formed the groundwork for what was to come.

How did the Reagan administration cope with the investigation into Iran-Contra, and attempt to deflect Reagan’s involvement? (around the 24 minute mark)

Caspar Weinbergers December 7, 1985, handwritten notes later transcibed of meeting in White House Family Quarters. "President sd. he could answer charges of illegality but he couldn't answer charge that 'big strong President Reagan passed up chance to free hostages.'"

Caspar Weinberger’s December 7, 1985, handwritten notes (later transcribed) of a meeting in White House Family Quarters. “President sd. he could answer charges of illegality but he couldn’t answer charge that ‘big strong President Reagan passed up chance to free hostages.'”

To this Byrne laments, “There are virtually no heroes in this story, unfortunately.” Byrne continues, “In his [Reagan’s] unwillingness or inability – and it’s probably both – to consider the collateral damage of the decisions that he made, one of those bits of damage was the effect that this had on all of the advisors and everybody who worked for him, including Shultz and Weinberger, who did to their credit repeatedly say ‘this is a dumb idea and it’s illegal and you’ve got to stop it’ and Reagan refused. This notion that Reagan had no advice – was hemmed in by nefarious ne’er-do-wells like McFarlane and so on – is absolute nonsense.” Ultimately, Reagan’s closest advisors, in an attempt to protect both Reagan and themselves, “were thrown under the bus.”

Visit here to watch the entire CSPAN2 BookTV interview, and here to read some of the many declassified documents cited in Iran-Contra.

FOIA Reform Approved by House Oversight Committee, Rep. Issa Warns of Continued Opposition from “Major Banks”, and Much More: FRINFORMSUM 3/26/2015

March 26, 2015
Rep. Cummings hopes to advance FOIA legislation "quickly" this session. Photo credit: AP

Rep. Cummings hopes to advance FOIA legislation “quickly” this session. Photo credit: AP

The FOIA Oversight and Implementation Act of 2015, H.R. 653, was approved by the House Committee on Oversight and Government Reform yesterday. The bill: requires agencies post more documents electronically; strengthens the FOIA Ombuds office, OGIS (which has to date not issued a single FOIA advisory opinion); codifies a presumption of openness; and creates a 25-year sunset for the oft-abused b(5) “withhold it because you want to” exemption. The committee also adopted three amendments to the bill (but none suggested by the National Security Archive and a coalition of other Open Government groups). The first accepted amendment would narrow the scope of what the government can withhold through the b(5) exemption – making it harder to withhold records like DOJ Office of Legal Counsel opinions; the second would require agencies to set up an email address to accept FOIA requests; and the third “would require the government to pay the legal fees of a plaintiff who successfully challenged the government’s withholding of documents in court. Current law gives the courts discretion to award legal fees but does not require it.”

The Senate FOIA reform bill, S. 337, was unanimously approved by the Senate Judiciary Committee in February. The lockstep introduction of both these bipartisan bills is a good sign, and openness advocates are optimistic FOIA improvements will become law –even though the five previous FOIA bills to pass out of committee have died without becoming law.

Last week Rep. Darrell Issa (R-Ca) spoke at the Transparency Caucus Briefing on FOIA reform about last year’s 11th hour FOIA reform death. It was reported that one of the reasons last year’s FOIA Improvement Act was not scheduled to the House calendar was opposition by lobbyists for the Financial Services Industry, even though the bill did not alter Exemption 8, which protects matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” Issa affirmed these reports, saying opposition did come from “major banks, no question at all”, and warned the current bills will face the same opposition.

Both current bills must now pass their respective chambers, be reported out of a conference, probably be voted on again in their respective houses, and be signed by the President for these FOIA improvements to become law.

Report showing VAST majority of official DOS emails not stored.

Report showing VAST majority of official DOS emails not stored.

The most important claim Hillary Clinton made about her use of a private email address and storing the emails on a private server while Secretary of State was that because she sent her official emails to “government officials on their State or other .gov accounts [] that the emails were immediately captured and preserved.” Some of the 300 emails Clinton released to a House committee investigating the 2012 Benghazi attack, however, “show that Mrs. Clinton’s top aides at times corresponded with her about State Department matters from their personal email accounts, raising questions about her recent assertions that she made it her practice to email aides at their government addresses so the messages would be preserved.” A recent Department of State Office of Inspector General report casts doubt that the former secretary’s emails would have been “captured and preserved” if they had all been sent .gov accounts anyway, noting that in 2011 State Department 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. NARA has sent a letter to the State Department asking the agency to account for Clinton’s use of a private server, if federal records were “alienated”, and what steps the department is taking to retrieve the federal records.

DOJ lawyers argued before the U.S. Court of Appeals for the D.C. Circuit last week that “The federal government had no duty under the Freedom of Information Act to produce emails former Secretary of State Hillary Clinton sent or received on a privately maintained account.” The argument comes in response to Larry Klayman’s motion seeking contempt proceedings against Clinton and one of her former top aides. Justice lawyers Matthew Collette and Catherine Dorsey wrote, “FOIA creates no obligation for an agency to search for and produce records that it does not possess and control”.

The DOJ won the dismissal of a private defamation lawsuit brought by Greek shipping mogul Victor Restis against United Against Nuclear Iran (UANI) by arguing the case could reveal state secrets. UANI consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” The DOJ invoked the state secrets privilege in the case, which Restis brought after the group accused him of violating sanctions by exporting oil from Iran, last September, specifically seeking to shield the group’s files, including its donor list. U.S. District Judge Edgardo Ramos asked the government to provide a written argument why it should not “have to publicly explain its reasons for invoking the state secrets privilege” in October. Ramos was apparently swayed by the DOJ’s arguments, ruling this week that a dismissal of the case was appropriate and that there was “a reasonable danger that disclosure of the facts underlying the government’s assertion would in fact jeopardize national security.”

Sen. Chuck Grassley (R-Ia) and other members of the Senate Judiciary Committee fighting for information on cell tracking technology. Photo: AP Photo/Matthew Putney, File

Sen. Chuck Grassley (R-Ia). Photo: AP Photo/Matthew Putney, File

Senators Chuck Grassley (R-Ia) and Patrick Leahy (D-Vt), chair and ranking member of the Senate Judiciary Committee respectively, wrote the Attorney General seeking answers regarding the DOJ’s use of cell phone tracking technology. Specifically, the Senators asked: if DOJ policy permits the use of cell-site simulators to capture the content of communications domestically and if so under what circumstance; has the DOJ tested cell-site simulators and if so to what extent and under what authority; and what DOJ policy governs the testing and deployment of new surveillance technology? The letter comes after reports the U.S. Marshals, a DOJ component, use Stingray technology – small planes “mounted with controversial cell-phone tracking systems” – in five major metro areas, and requires the DOJ to respond by tomorrow, March 27th.

 

Osorio receives a plaque from Argentinian Amb. Cecilia Nahón (right), joined by Catalina de Sanctis Ovando.

Osorio receives a
plaque from Argentinian Amb. Cecilia Nahón (right), joined by Catalina de Sanctis Ovando.

This week marked a proud moment for the Archive and our Southern Cone Project Director, Carlos Osorio. To commemorate the International Day for the Right of Truth, the Embassy of Argentina awarded Osorio a plaque “in recognition for his contribution in the fight for human rights during the Argentine civic-military dictatorship (1976-1983) — Nunca Más”. The plaque was awarded by Ambassador Cecilia Nahón and Catalina de Sanctis Ovando, of the Grandmothers of the Plaza de Mayo.

Nuclear Weapons Afloat: End of Fiscal Years 1953-1991.

Nuclear Weapons Afloat: End of Fiscal Years 1953-1991.

 

Recent declassification decisions by a committee representing the Department of Defense and Department of Energy have simultaneously advanced and set back the cause of transparency for the history of the U.S. nuclear posture. In response to a request by the Archive, the Formerly Restricted Data Declassification Working Group (FRD DWG) have declassified the numbers, in the thousands, of nuclear weapons carried on U.S. Navy surface ships during the Cold War, from 1953 to 1991. Yet, they denied a related request—for declassification of the numbers, which also ran into the thousands, of U.S. nuclear weapons deployed to NATO Europe during the Cold War.

Formerly Top Secret declassified documents posted recently by the National Security Archive detail the CIA’s conflicts with the NSA and the military over its signals intelligence (SIGINT) role. The 40 documents shed light on the CIA’s regular struggle with not only Soviet counterintelligence and international upheavals like the Iranian revolution, but overlapping missions and domestic budgetary battles with the NSA and other entities during the height of the Cold War.

A new memoir by one of the few surviving participants in the U.S. H-bomb project provides fresh information and insights into the production of the world’s first thermonuclear device. In an exclusive essay and selection of declassified documents provided to the National Security Archive and posted on the Archive’s website, Dr. Kenneth W. Ford brings to light intriguing pieces of the H-bomb’s early history, including personal aspects such as the brittle relationship between physicists Edward Teller and Stanislaw Ulam and their feud over who came up with one of the central theories leading to the H-bomb’s development.

In honor of Carlos Osorio’s deserved recognition by the Argentinian Embassy, this week’s #tbt document pick is a December 13, 2006, Department of State WikiLeaks cable describing Osorio as ““one of the most important declassifiers of the State Department’s private documents.” The cable goes on to accuse the Archive of “dredging up the past”. As Osorio’s award shows, however, there is a marked difference between dredging up the past and fighting for human rights accountability.

The same document - leaked by WikiLeaks, then declassified by the State Department, and then by ISCAP - calling Osorio one of the most important declassifiers.

The same document – leaked by WikiLeaks, then declassified by the State Department, and then by ISCAP – calling Osorio one of the most important declassifiers.

Happy FOIA-ing!

Secrecy Cloaks History of U.S. Nuclear Presence in Western Europe

March 24, 2015

“7,00 Warheads in NATO’s Forces: McNamara Says Number Has Doubled in 5 Years.”

Are the British More Open about Nuclear History than the U.S.? 

One Step Forward, Two Steps Back

Recent declassification decisions by a committee representing the Department of Defense and Department of Energy have simultaneously advanced and set back the cause of transparency for the history of the U.S. nuclear posture. In response to a request by the National Security Archive, the Formerly Restricted Data Declassification Working Group (FRD DWG) have declassified the numbers, in the thousands, of nuclear weapons carried on U.S. Navy surface ships during the Cold War, from 1953 to 1991. Yet, they denied a related request—for declassification of the numbers, which also ran into the thousands, of U.S. nuclear weapons deployed to NATO Europe during the Cold War. Even though the NATO deployments have long been overtaken by events—only a few hundred remain in Western Europe—they are likely to remain secret for the indefinite future.

Background

What made the declassification requests possible was a provision in 10 C.F.R. 1045.20 concerning information classified under the Atomic Energy Act (Title 10 refers to the Department of Energy). Under this provision, it is possible to file a petition with the Department of Energy to request the declassification of Restricted Data (RD) and Formerly Restricted Data (FRD). Because RD generally concerns the design of nuclear weapons and the manufacture of fissile material for substantive policy reasons it often remains classified. FRD, by contrast, concerns classification controls over the military use of nuclear weapons, including weapons yields, stockpiles, deployments and storage arrangements. In this area the Pentagon, far more than the Department of Energy, has had a major role in using and protecting FRD and in resisting its declassification. To test the boundaries of the declassifiable, the Federation of American Scientists’ Steven Aftergood has pioneered using the DOE’s rules to secure the declassification of important information about nuclear weapons.

In 1993, a few years after the Cold War ended, the Clinton administration, with Secretary of Energy Hazel O’Leary in the lead, disclosed the numbers of U.S. nuclear weapons through 1961.   Yet, no breakdown was provided, for example, of weapons deployed in specific regions or to specific forces. All of that remained secret, which meant that important elements of Cold War history also remained shrouded. For example, that the United States had thousands of nuclear weapons deployed overseas remained a significant puzzle. In order to back up U.S. diplomacy and to validate security guarantees and to deter political and military pressure from the former Soviet Union and its allies, the Pentagon deployed thousands of tactical nuclear weapons around the world, from Northeast Asia (South Korea and Okinawa) to Western Europe (primarily in West Germany) as well as the Atlantic and the Pacific.  Moreover, overseas deployments were often related to war plans—nuclear weapons on aircraft carriers were tied in commitments for war plans against the Soviet Union and Warsaw Pact countries and to a lesser against, China. Likewise, nuclear bombs assigned to NATO aircraft had SIOP targets.

The facts of those deployments along with their numbers were highly secret, although sometimes policymakers leaked information to the press.   It was not until 1999, years after the Cold War had ended, that the Pentagon responded to FOIA requests by releasing parts of a top secret historical study on the history of custody and deployment arrangements. Yet much remained classified, including numbers of weapons overseas and most of the countries where the weapons were deployed although educated guesses were possible.

More of the Same

16 years later, the situation has not changed (although former Secretary of Defense Robert Gates released more aggregate stockpile numbers). For example, that Washington deployed nuclear weapons in Italy and Turkey, the Netherlands and Belgium, and other parts of the world remains an official secret. The numbers of weapons assigned to surface naval forces has also been classified. To try to get some light shed, the National Security Archive has from time to time requested declassification review of major studies of the overseas stockpile, but basic facts remain classified. Following the example set by Steven Aftergood, during 2014 the Archive petitioned the Department of Energy for two sets of information: 1) aggregate numbers of U.S. nuclear weapons deployments to Western European NATO countries for each year from 1950 to 1991, and 2) aggregate numbers of deployments of nuclear weapons “afloat” on U.S. Navy surface ships during the Cold War, with breakdown by ocean/sea (Atlantic, Pacific, Mediterranean). 1991 was an appropriate cut-off because that year President George H. W. Bush ordered the withdrawal of all Naval nuclear weapons (except for submarine-launched ballistic missiles) and the withdrawal of all but a few hundred nuclear weapons from NATO Europe. Under the regulations, the Department of Defense, the Department of Energy, and perhaps the Department of State (which historically has managed the diplomacy surrounding nuclear weapons deployments) would coordinate a response to the petitions.

The FRD DWG gave an affirmative response to the request on naval nuclear weapons. Recently the Department of Defense posted on its DOD Open.Gov Web site declassified tables identifying numbers of U.S. Navy nuclear weapons afloat, with a breakdown by geographic location. What is surprising is that there were thousands of naval nuclear weapons beginning in the 1960s. But a previously posted declassified National Security Council study from early 1972 provides similarly large numbers for naval nuclear weapons (see page 35). The original request was narrowly phrased, asking only for a geographic breakdown, but it is unfortunate that the Defense Department released the numbers without explanation. Yet the gross numbers provide a sense of the massive scale of the navy’s nuclear operations. Presumably “weapons afloat” includes warheads for missile reentry vehicles on submarine-launched ballistic missiles, nuclear bombs and depth charges on carriers and other nuclear weapons carried on surface ships and submarines, including torpedoes, ASROC (anti-submarine rocket), TOMAHAWK ship-launched cruise missiles, TALOS anti-ship weapons, and TERRIER air defense weapons. The total very likely includes weapons deployed on ammunitions ships, on submarine tenders, in magazines on naval bases, but also U.S. weapons assigned to NATO allies (such as anti-submarine warfare weapons to the Netherlands). The Archive has filed a request with DOE for a more detailed breakdown.

Nuclear Weapons Afloat: End of Fiscal Years 1953-1991.

Nuclear Weapons Afloat: End of Fiscal Years 1953-1991.

The tables for the Atlantic, Pacific, and Mediterranean do not include the years before 1961, although the annual grand totals in the first table begin with 1953. Perhaps the data breaking the deployments down is unavailable or the researchers did not know where to look. No security reason would seem to be at issue. By 1951, U.S. aircraft carriers were starting to carry non-nuclear components (less the fissile material core), which suggests that 1953 was the first year when the carriers were carrying complete nuclear weapons, consistent with the Eisenhower administration’s new policy of dispersing nuclear weapons to the armed services.

Nuclear Weapons Briefing for Fulbright Committee.

Nuclear Weapons Briefing for Fulbright Committee.

As for the request for declassification of the numbers of U.S. nuclear weapons in Cold War Western Europe, a letter from the Department of Energy informed the Archive that the FRD/ DWG has decided that the request “cannot be granted at this time.”  No explanation was provided, although the decision is consistent with the Department of Defense’s historic refusal to declassify numbers of U.S. nuclear weapons in Europe; the exact size of the current deployment in Western Europe is as much an official secret as the deployments of the past.1 Nevertheless, this is a puzzling decision. It is not even secret that the U.S. deployed nuclear weapons in Western Europe during the Cold war; for example, in 2013 the Interagency Security Classification Appeals Panel (ISCAP) declassified significant portions of a briefing to the Senate Foreign Relations Committee from 1970 on U.S. nuclear deployments overseas. ISCAP not only disclosed the fact that the U.S. had nuclear weapons deployed in NATO Europe, it listed the countries with which Washington had nuclear cooperation agreements covering stockpile arrangements: Belgium, Canada, Germany, Greece, Italy, the Netherlands, Turkey, and the United Kingdom. Given such declassifications the number of weapons during the Cold War is really only an interesting detail.

What’s The Problem

Even during the Cold War the numbers of weapons in NATO Europe were not highly secret. In September 1966 when Secretary of Defense Robert McNamara was in Rome to organize NATO’s Nuclear Planning Group, the size of the stockpile quickly leaked to the New York Times: the headline stated: “7,000 Warheads in NATO’s Forces: McNamara Says Number Has Doubled in 5 Years.” As Washington Post reporter Murrey Marder observed some years later the numbers would go up and down, but the 7,000 figure remained the best approximation.2 Even when President Bush ordered the withdrawal of thousands of nuclear weapons from around the world in 1991, the number of weapons that had been deployed to Western Europe remained an official secret.

It is not at all clear why the U.S. government is afraid to declassify the numbers. The agencies always cite the Atomic Weapons Act as constraining release but in the past they have interpreted it to declassify other stockpile numbers. There is no absolute prohibition. It would be better if the agencies followed the pragmatic British who have declassified much data about their nuclear stockpile during the Cold War, including weapons types and numbers, where they were deployed, and even their explosive yields. John R. Walker, an official historian at the British Foreign and Commonwealth Office has impressively compiled such data in several articles published in The RUSI Journal.3 It is remarkable that, even with the Official Secrets Act, a British public historian could produce such useful research, with full citations. It is a sad commentary that such an accomplishment is impossible in this country.


Notes

1. Jeffrey Lewis, “180 NATO Nukes,” Arms Control Wonk , 17 Dccember 2010.

2. Robert C. Doty, “7,000 Warheads in NATO’s Forces,” New York Times, 24 September 1966; Murray Marder, “Senate Report Analyzes U.S. Nuclear Force in Europe,” Washington Post, 2 December 1973.

3. John R. Walker, “British Nuclear Weapons Stockpiles, 1953-78,” and “British Nuclear Weapons Stockpile, 1953-1978: A Commentary on Technical and Political Drivers,” RUSI Journal 156 (October/November 2011): 66-72 and 74-83 respectively.

Bursts of Cloudiness, Like Reports that Appeals Reveal Improper Initial Withholdings in 1-3 Cases, Don’t Darken Sunshine Week Optimism: FRINFORMSUM 3/19/2015

March 19, 2015
Why the Archives motto is "appeal, appeal, appeal."

Why the Archive’s motto is “appeal, appeal, appeal.”

This Sunshine Week, the national celebration of open government and freedom of information, the Associated Press reported the Obama administration, which promised on day one to be the “most transparent” in history, set new records for censoring government documents and denying them in full. Equally troubling, AP also found more instances during the Obama administration than any other of agencies being unable to locate records, and “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 the latest figures from the Department of Justice, which come from FY2013, only 2.8% of all denials were appealed that year. Extrapolating these statistics would mean that during FY2014 roughly 154,750 requests had information improperly withheld.

AP also found the U.S. “spent a record $434 million” to respond to increasing FOIA requests. “It also spent about $28 million on lawyers’ fees to keep records secret.” Archive FOIA Project Director Nate Jones, in a Sunshine Week op-ed on unnecessary FOIA fees, notes that charging exorbitant FOIA fees – like the $1.5 million price tag the DEA recently affixed to a FOIA response – for FOIA requests is unnecessary from a fiscal perspective. Jones points out “Total fees paid by FOIA requesters were just $4.3 million, less than one percent of the cost of implementing the Act. The use of fees to dissuade people from making requests becomes even more questionable when one understands that the money goes to the U.S. Treasury’s General Fund, not to defray actual agency FOIA costs.”

OIPs new guidance is good; now we just need to make sure it gets enforced.

OIPs new guidance is good; now we just need to make sure it gets enforced.

The Department of Justice’s Office of Information Policy (OIP) released  good guidance on proactive disclosure this week, echoing many of the sentiments expressed in the National Security Archive’s most recent FOIA Audit.  The Archive’s Audit tackled many federal agencies’ failure to meet the 1996 Electronic Freedom of Information Act Amendments (E-FOIA) requirement that mandates agencies post records already processed in response to FOIA requests, and records “likely to become the subject of subsequent requests,” online. The Audit argued that fulfilling this requirement would not only save agencies time and money, but “is the only tenable solution to FOIA backlogs and delays.”

OIP’s latest guidance seems to be in accordance with our Audits’ findings, and hedges earlier guidance that defines “frequently requested records” as those which have been released three or more times to FOIA requesters. Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law even though agency FOIA offices have already spent valuable resources processing the requests. Recognizing this, OIP’s latest guidance says, “even in the absence of multiple requests for the same or similar records, agencies should use their best judgment at the time each request is received to determine whether they believe the responsive records concern a popular topic that is likely to become the subject of subsequent requests in the future.”

Even more heartening, immediately below the guidance’s “frequently requested” records section are further instructions on “Posting [records] Before Receipt of Even One Request in Accordance with the President’s and Attorney General’s FOIA Memoranda.” The guidance will only be effective, however, if someone ensures agencies actually follow it.

Posting records electronically saves agencies time and money.

Posting records electronically saves agencies time and money.

The Archive’s E-FOIA Audit named those agencies that had the best overall performance proactively posting FOIA-processed records as our “E-Stars,” and those that had the worst performance as our “E-Delinquents.” FedScoop’s Whitney Blair Wyckoff contacted the “E-Delinquents” for comment. The Office of Science and Technology Policy (OSTP), one of the White House’s Executive Offices subject to FOIA and responsible for providing the Executive Branch technical advice, said “The Department of Justice issued OSTP’s FOIA program a report card with green lights across the board,” implying that a DOJ stamp of approval should satisfy all FOIA requirements. Of course, while OIP issued good new FOIA guidance this week, the office has previously issued guidance that undermines the statute and defended bad FOIA policy.

The National Security Archive joined eleven other groups in writing to both the Secretary of State and the Archivist of the United States requesting that they independently verify that Secretary Hillary Clinton’s e-mails containing federal records are transferred to the Department of State in their original electronic form. The letter asserts, “the task of determining which emails constitute federal records should not be left solely to Mrs. Clinton’s personal aides. Rather, the Archivist and State Department should oversee the process to ensure its independence and objectivity.”

the Fed CIO Council is our latest repeat Rosemary Winner.

The Fed CIO Council is our latest repeat Rosemary Winner.

This year the National Security Archive awarded our annual Rosemary Award for worst performance in open government to the Federal Chief Information Officers Council for never addressing the government’s “lifetime failure” of saving its e-mail electronically. The Archive hoped that awarding the CIO Council the same award in 2010 would have served as a government-wide wakeup call that saving e-mails was a priority. Fallout from the Hillary Clinton e-mail debacle shows, however, that rather than “waking up,” the top officials have opted to hit the “snooze” button. Hopefully the Council will use this year’s award as a call-to-action.

New York Times reporter Jason Ross Arnold has an exceptionally well-balanced article on Obama’s transparency promises, noting that Obama deserves neither all the credit nor all the blame for his administration’s transparency successes and pitfalls. Arnold surmises, “although the administration may still wind up as one of the better ones of the sunshine era, it may not serve as the model for the most transparent administration yet to come.”

One odd choice the administration did make that does little to bolster its transparency bona fides, however, is announcing the Office of Administration’s (OOA) exemption from FOIA and the deletion of its FOIA regulations during Sunshine Week. The OOA is also part of the White House’s Executive Office (though not the only one without FOIA regulations), and while previously subject to FOIA, a lawsuit has precluded the OOA from responding to FOIA requests since 2007. “I would say that it’s not a scandal,” Archive FOIA Project Director Nate Jones told VICE news, although Jones noted the timing was bizarre and indicated a lack of respect for FOIA within the administration. “It’s just crazy they chose Sunshine Week to flag the lack of access. Can you imagine a regulation with anti-environmental optics being rolled out on Earth Day?”

No wonder he fought so hard against allowing the public to access his papers...

No wonder he fought so hard against allowing the public to access his papers…

Our SunshineWeek #tbt is March 10, 1975, memorandum of conversation between Secretary of State Henry Kissinger and Turkish Foreign Minister Melih Esenbel. Discussing the 1974 US arms embargo against Turkey for its invasion of Cpyrus, Kissinger quips, “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter]  But since the Freedom of Information Act, I’m afraid to say things like that.” Read Jones’ longer analysis here.

Be sure to check out Twitter tomorrow morning at 9:30 for Jones’ candid #FOIAchat about his role on the Federal FOIA Advisory Committee. Search #FOIAchat to follow the conversation.  Jones promises to do his best to answer any question asked by the twitterverse.

Finally, don’t miss tonight’s announcement of the winners of the inaugural FOILIES Awards – presented for the most “extraordinary and egregious” FOIA request responses. Spearheaded by the Electronic Frontier Foundation (EFF), the “winners” of the FOILIES Awards will be announced tonight, March 19th, at a happy hour jointly hosted by EFF, the Sunlight Foundation, and MuckRock from 5-7 p.m. at Lost & Found in Washington, DC. Check out the Archive’s FOILIES nominations here.

Happy FOIA-ing!

Unnecessary Freedom of Information Act Fees

March 18, 2015

This article was originally posted on the official Sunshine Week website, sponsored by John S. and James L. Knight Foundation, Bloomberg, The Gridiron Club and Foundation
American Society of News Editors, Reporters Committee for Freedom of the Press.  Feel free to edit and republish.

NSArchive FOIA Project Director Nate Jones.

NSArchive FOIA Project Director Nate Jones.

Last year, a FOIA requester filed a Freedom of Information Act request with the Drug Enforcement Administration asking for information about the DEA’s role in the search and capture of the Mexican Cartel boss Joaquin Guzman, more commonly known as “El Chapo.”

Last month – eight months after the FOIA’s statutory twenty-day deadline had expired — the agency informed the requester that it would cost a whopping $1.46 million to search, review, process, and print the documents, causing the stunned requester to abandon his effort. Using the specter of unrealistically high FOIA fees, the DEA successfully evaded a request for materials of high public interest.

This Sunshine Week, it’s important to recognize that FOIA fee barriers are not isolated incidents. The Federal FOIA Advisory Committee, made up of government and non-government members including myself, has identified fees as the most frequently contentious issue in the FOIA process for those both inside and outside government. Miriam Nisbet, the former director of the FOIA Ombuds office, confirmed this week. that some agencies use fees to dissuade people from filing FOIA requests.

The need for exorbitant fees to pay for FOIA requests is unnecessary from a fiscal perspective. According to the government’s own most recent figures (FY 2013), the 99 agencies covered by FOIA processed 678,391 requests at a cost of $446 million dollars – well worth it considering the value of a government accessible to its citizens. Total fees paid by FOIA requesters were just $4.3 million, less than one percent of the cost of implementing the Act. The use of fees to dissuade people from making requests becomes even more questionable when one understands that the money goes to the U.S. Treasury’s General Fund, not to defray actual agency FOIA costs.

Encouragingly, there are exemplary FOIA agencies that recognize this and waive most or all fees as a matter of policy.

Unfortunately, too many other agencies continue to use the specter of FOIA fees as a tool in a general attempt to avoid releasing information to the public. Many high fee estimates are probably also illegal. The FOIA makes it very clear that any time an agency misses its twenty-day statutory deadline to process a request, or if the requester is representing the media, a scientific organization, or educational institution, the agency is only allowed to charge copying fees. The DEA and other agencies have improperly skirted the intent of these provisions so often that both FOIA bills currently pending in Congress include ironclad language which will clearly prohibit these fee hijinks, once and for all.

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Some FOIA processers counter that imposing FOIA fees is important not because it pays for the FOIA process, but because it’s a useful tool to convince requesters to narrow requests agencies find overly-broad. A much better solution than applying sticker shock would be to contact the requester, explain the agency’s constraints, get the requester to answer the all-important question, “What do you really want?” and explain that the more narrowly tailored the request, the quicker the response.

Another generally under-appreciated fact is that agency fee barriers hurt regular requesters most of all. The FOIA has built-in fee protections for the categories of users listed above but not for the average concerned citizen asking about potential water contamination at a military base or forGPS data about a nearby national park. Fees are all too often improperly used to turn these kinds of requesters away.

Taxpayers have already paid for FOIA. Instead of trying to use inflated fee numbers to scare away legitimate requesters, agencies should do their duty and focus on releasing important information to the public – like illuminating the US role in the hunt for El Chapo.

The National Security Archive’s FOILIES Nominations

March 16, 2015
14

15 agencies get a shot at redacting information.

The National Security Archive nominated five particularly bad FOIA responses for the inaugural FOILIES Awards – presented for the most “extraordinary and egregious” FOIA request responses – and we are posting them today along with two additional responses worthy of “dishonorable” mentions. Spearheaded by the Electronic Frontier Foundation (EFF), the “winners” of the FOILIES Awards will be announced on Thursday, March 19th, at a happy hour jointly hosted by EFF, the Sunlight Foundation, and MuckRock from 5-7 p.m. at Lost & Found in Washington, DC.  (I’m swinging by after my free, open to the public, presentation on how journalists, researchers, and the public can file effective FOIA requests –So there is definitely time to do both!)

The National Security Archive’s FOILIES Nominations

1. Category: Referral Merry Go Round Insanity

Description: A ten-year-old request about School of the Americas training manual evaluations to the Department of Defense Inspector General was recently released in part to the Archive.  But even a decade later, the DOD IG is still unable to finish its work.  Rather, it is passing the buck on (referring) portions of the documents to fourteen(!) different agencies so they can get a crack at redacting information as well.  Who knows how long it will take fourteen more FOIA shops to finish this request. Another decade? Longer? This beats the current known referral record by one.

2. Category:  Shooting the Classification Moon

Description: A six-year-old request to the Air Force for a report on Able Archer 83 Shot the Classification Moon.  Executive Order 13526, which governs classification, states nine reasons why information older than twenty-five years may remain withheld from the public.  It’s unusual for a historic document to merit even one or two of these stipulations. But the Air Force is making the never-before-seen claim that some sections of its report on the 1983 Able Archer exercise are exempted by all nine.  These thirty-year-old passages, if we believe Air Force Declassification Review Manager Penny Jenkins, contain information on: human intelligence (HUMINT), WMDs, cryptology, “state of the art” weapons systems, “war plans that remain in effect,” foreign relations, presidential protection, emergency preparedness, and information that would violate treaties.  Now that is a sensitive thirty-year-old document!

We appealed.

We appealed.

The document was from 1983.  We definitely appealed.

The document was from 1983. We definitely appealed.

3. Category: Insulting Secrecy

Description: The Department of Defense, working under NARA’s National Declassification Center, took ten years to respond to a declassification request for a fifty-plus-year-old memorandum by former Secretary of Defense Robert S. McNamara about the Missile Gap. Then declassifiers claimed “national security” Exemption One to withhold the memo.  The problem is, this memo was previously released in response to an earlier FOIA request and already officially published by the State Department’s historical series Foreign Relations of the United States, 1961-1963.

The same page – page 5 – from the same document, released 3 different times. From Left to Right: 2014 National Archives release with Department of Defense redactions, 1996 Foreign Relations of the United States release, and circa 1996 Department of Defense Freedom of Information Act Release.

The same page – page 5 – from the same document, released 3 different times. From Left to Right: 2014 National Archives release with Department of Defense redactions, 1996 Foreign Relations of the United States release, and circa 1996 Department of Defense Freedom of Information Act Release.

4. Category: Extraordinary Long Wait for Records

Description: A seventeen-year wait for a response from the National Archives for four documents that are fifty years old – and still redacted. With not so much as an apology.  Part of the problem is that NARA does not have the authority to release other agencies’ documents.  But they should fight for it!  Their reputation is at stake.

5. Category: Silly Legal Arguments in Public Records Lawsuits

Description:  The CIA and the Department of Justice argued that a volume of a CIA history on the Bay of Pigs should be withheld under the Exemption Five “withhold it because you want to exemption” because it could “confuse the public“.  And won.  And then won again after our appeal was denied in the DC Court of Appeals. In reaction to this egregious argument and decision, both currently pending FOIA bills contain a clause ending the ability to use the “predecisional” Exemption Five at twenty-five years. (EFF’s David Sobel was our counsel on this)

“Dishonorable” Mentions

1. Dubious Secrets of the Cuban Missile Crisis

Description: Inane and contradictory declassification actions on military records of the Cuban Missile Crisis indicate serious flaws in the Defense Department’s declassification procedures for historical records. One of the biggest secrets of the crisis was that a deal involving the trade of Soviet missiles in Cuba for U.S. Jupiter missiles then deployed in Turkey, as well as Italy, was central to the diplomatic settlement. While this was disclosed years ago, the Defense Department refuses to acknowledge that the United States had missiles at Turkish or Italian bases. A Pentagon report recently released through a FOIA appeal to the National Security Archive includes several astonishing excisions, including one from Nikita Khrushchev’s “publicly announced message” on 27 October 1962, where he proposed removing Soviet missiles from Cuba if the United States “will remove its analogous means from [excised].” What Khrushchev said was “Turkey,” but on national security grounds the Pentagon would not declassify that word in a statement that was made to the world.

The Wikipedia article on Able Archer 83 the National Security Agency sent us in response to a FOIA request.

The Wikipedia article on Able Archer 83 the National Security Agency sent us in response to a FOIA request.

2. That Wikipedia Article You Wrote will be $60

Description: The National Security Agency responded to a 2008 FOIA request on the Able Archer 83 War Scare from Archive FOIA Project Director Nate Jones by stating that it had eighty-one relevant documents, but that all were exempt from release. Unhelpfully, the Agency did review, approve for release, stamp, and send Jones a printout of a Wikipedia article (that Jones had helped author), for a total of $60.

Dark Clouds over Sunshine Week as Network Fires Mexico’s Leading Investigative Team

March 16, 2015
Carmen Aristegui was fired yesterday by Noticias MVS after five years hosting the network’s Primera Emisión program.

Carmen Aristegui was fired yesterday by Noticias MVS after five years hosting the network’s Primera Emisión program.

National Security Archive deeply troubled over dismissal of journalists in Mexico

This post reflects the views and opinions of Michael Evans, Jesse Franzblau and Kate Doyle of the Archive’s Mexico Project staff.

The National Security Archive is deeply troubled over the decision by Mexican news network Noticias MVS to dismantle the country’s top investigative team, led by Carmen Aristegui, host of the network’s Primera Emisión program. The loss of these journalists and Aristegui’s entire program is a severe blow to independent journalism and free speech in Mexico. Our regret is all the more profound since the actions taken by MVS silence a group of journalists with whom we have had a longstanding and fruitful collaborative relationship.

MVS terminated their relationship with the award-winning journalist and host of one of Mexico’s most popular news programs yesterday after rejecting Aristegui’s demand that the network reinstate the top two members of her team. Last week, MVS fired the head of Aristegui’s investigative unit, Daniel Lizárraga, and another member of the team, reporter Irving Huerta, after Aristegui told her listeners that she and her staff had joined with other media and advocacy groups in forming MexicoLeaks, a digital platform meant to facilitate leaks of classified information to investigative journalists. Other media groups involved with MexicoLeaks include Animal Político, emeequis, Másde131, Periodistas de a Pie, Poder, Proceso, and the Red en Defensa de los Derechos Digitales.

Aristegui issued a statement on the air Friday, indicating that she had not been notified of plans to dismiss the journalists and characterizing the firings as an attack on press freedom. She called for the unconditional reinstatement of her colleagues, saying the fired reporters are “essential” to the investigative work of her program. The same day, the network issued a new, more restrictive set of guidelines for the popular radio host, who also anchors an evening program on CNN México. The new rules, which would have taken effect today, essentially reversed the broad editorial discretion granted to Aristegui in her 2009 contract, giving the network final say over program content.

Aristegui, Lizárraga and Huerta are three of the most essential advocates for greater transparency in Mexico and have used the country’s access law to produce a number of game-changing investigative stories. It was their team that exposed conflict-of-interest in a deal between President Enrique Peña Nieto and a real estate developer who built an opulent mansion for the president and later won lucrative government contracts. Their reporting has revealed key details on recent human rights cases and a prostitution ring being run by a top member of the president’s political party in Mexico City. More recently the team had been using the access law to probe the murder and attempted cover-up by the Army of 22 suspected gang members in Tlatlaya.

Last year, Michael Evans and Jesse Franzblau of the Archive were named along with Lizárraga, Huerta, Aristegui, and other members of their team as part of the official selection for the 2014 Gabriel García Márquez award. The nomination was the result of a joint investigation with MVS Noticias revealing newly-declassified evidence of a secret U.S. espionage facility in Mexico City. In December, their team provided comprehensive coverage of a document we obtained confirming police participation in the 2011 migrant massacres in San Fernando, Tamaulipas. In April 2014, we worked with them on a story looking at declassified records from the first, failed, attempt by Mexican forces to capture an infamous drug kingpin.

The Archive’s history of working with Lizárraga dates back to his days as a journalist at the newsweekly Proceso. In 2006, the Archive hosted him in Washington, DC, at a forum for open government advocates to share experiences using transparency laws in investigative journalism. Daniel has been one of the leading journalists using Mexico’s freedom of information law since it was passed in 2003, and his work has been an inspiration to journalists using access laws to investigate government corruption.

It is our sincere hope that our friends Carmen, Daniel and Irving will find a new venue to continue their essential work. The Archive offers its full support to these courageous journalists and looks forward to future projects with the entire investigative team.

Signed,

Michael Evans, Jesse Franzblau and Kate Doyle

#TodosSomosCarmen
#SunshineWeek

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