Skip to content

Condor Verdict In, FOIA Requests to the FCC Just Got More Difficult, and More: FRINFORMSUM 1/19/2017

January 19, 2017
Former Uruguayan Foreign Minister Juan Carlos Blanco (Photo: Flores.org.uy)

Former Uruguayan Foreign Minister Juan Carlos Blanco (Photo: Flores.org.uy)

Operation Condor Verdict – Life Imprisonment

This week a tribunal in Rome sentenced two former heads of state and two ex-chiefs of security forces from Bolivia and Peru, as well as a former Uruguayan foreign minister, to life imprisonment for their  involvement in the coordinated, cross-border system of repression known as “Operation Condor.” The National Security Archive, which provided testimony and dozens of declassified documents as evidence to the tribunal, hailed the ruling.

One declassified Department of State document that the Archive provided to prosecutors stated that Argentina, Brazil, Bolivia, Chile, Paraguay and Uruguay “have established Operation Condor to find and kill terrorists … in their own countries and in Europe.” “… [T]hey are joining forces to eradicate ‘subversion’, a word which increasingly translates into non-violent dissent from the left and center left.” Their definition of subversion, according to the document, was so broad as to include “nearly anyone who opposes government policy.” The document notes that former Foreign Minister Blanco of Uruguay was one of those behind this vision.

In another document introduced in the trial, Peru’s former defense and prime Minister Richter Prada claims that three Argentine fugitives were “legally expelled and delivered to a Bolivian immigration official in accordance with long-standing practice.” The document goes on to say that the fugitives are probably “permanent disappearances.”

Get the whole story, and read the key documents, at the National Security Archive’s website.

FOIA Requests to the FCC Can’t be Submitted by Email or Fax

Michael Ravnitzky recently pointed out that the Federal Communications Commission recently posted a final rule – without providing for public comment – that will negatively impact requesters. Specifically, it no longer allows FOIA requesters to submit FOIA requests via email or fax – and contradicts the spirit of recent amendments to the FOIA. The rule states:

  1. We also amend subsection (d)(1) to remove the use of facsimile or email to file FOIA requests; instead, requesters are directed to submit their requests either via the postal mail or through the Commission’s FOIAonline portal. In section 0.461(d)(2), we clarify that the responsibility to sign FOIA response letters may be delegated to staff of the bureau or office that is the custodian of the records. We amend the provisions of section 0.461(e)(1) concerning date stamping of incoming initial requests to reflect the current procedure as implemented through FOIAonline. In section 0.461(e)(2)(i)(B)(1), we modify the situations in which the processing time may be tolled pending the outcome of a fee matter, explicitly providing that the time for processing a FOIA request will be tolled in cases where the amount of fees authorized is less than the estimated cost for completing the production. This is consistent with existing practice. We update section 0.461(e)(3) to reflect the new methods for FOIA requesters to check on the status of their requests. We also provide for consultation with other agencies regarding records in which other agencies have equities in the Commission’s decision concerning the disposition of a FOIA request for those records.

It’s a sad irony that a department geared towards communications is enacting this regressive rule change, which are decidedly not the kind of updated regulations that senators and representatives envisioned when they required agencies to update their FOIA regulations last year. Issuing the rule change without providing public comment is also likely illegal because the rule directly impacts the public.

CREST Database Now Online

The CIA has published the 13 million pages of declassified documents in its CREST database to its website, thanks in large part to a FOIA suit filed by MuckRock, handled pro bono by Kel McClanahan of National Security Counselors, requesting the database. The agency’s move was likely also prompted by MuckRock user Michael Best, frustrated with the needless hurdles to access, launching a KickStarter campaign to buy the equipment necessary to scan and upload all the documents online.

The documents – which were already declassified – were previously only available onsite at the National Archive’s College Park location in Maryland.

Even though the documents have been available for years for those willing to travel, the CIA long-cited a fear of the Mosaic Principle – the piecing together of documents to discern information the agency wants hidden – as a reason for making researchers review the documents onsite.

The CIA initially told a federal judge in response to MuckRock’s 2014 FOIA lawsuit that it would take 28 years to release the set, but later announced it could release the documents in six years with only a “spot check” for classified information even though the documents are already declassified.

Last October,  the CIA announced it would place CREST online, but didn’t provide a timeline for doing so.

In its posting, the CIA cites provisions of Executive Order 13256, requiring “the declassification of non-exempt historically valuable records 25 years or older.” And while this week’s posting is a big step in the right direction, a good number of the most interesting items have been shielded by a notice, “CREST temporarily unavailable” – a notice that we will be watching to ensure it does not become permanent.

DOJ Doesn’t Want to Give Federal Judge Copy of Torture Report

The Justice Department is arguing that delivering a copy of the Senate Intelligence Committee’s report on the CIA’s torture program to U.S. District Judge Royce Lamberth – per his order – would “unduly interfere … with the larger oversight relationship between the Senate Committee and the CIA.” The DOJ further argues that, “there’s no risk of the 6,963-page Senate Intelligence Committee report disappearing forever because President Barack Obama recently added his classified copy to his presidential archives.” Lamberth’s order was issued in a case concerning Guantánamo captive, Abd al Rahim al Nashiri, who was tortured during his 2002-2006 detention.

The Justice Department also called Lamberth’s order to “preserve and maintain all evidence, documents and information, without limitation, now or ever in the [U.S. government’s] possession, control or custody, relating to the torture, mistreatment, and/or abuse of detainees held in the custody of the Executive Branch” since Sept. 11, 2001 “overreaching.”

Judge Orders DOJ to Preserve Personal Email

U.S. District Court Judge Emmet Sullivan this week ordered the Justice Department to preserve emails in the Gmail account of Assistant Attorney General for Legislative Affairs, Peter Kadzik, before he leaves his post with the change of presidential administrations. The order concerns Gmail emails that may be responsive to FOIA requests filed by Judicial Watch. Politico’s Josh Gerstein notes, “Another federal judge in Washington is considering a Judicial Watch request to preserve emails in private accounts belonging to four top Department of Homeland Security officials, including Secretary Jeh Johnson. In December, yet another federal judge issued an order requiring the top White House science official to preserve all his emails in a private account as litigation over the messages continues.”

nytLast Superpower Summits at the Wilson Center

The National Security Archive’s Svetlana Savranskaya and Tom Blanton will be giving the audience an inside look at the “Last Superpower Summits” next Monday at the Wilson Center. Their latest book, “The Last Superpower Summits: Gorbachev, Reagan, and Bush: Conversations that Ended the Cold War,” publishes declassified accounts (obtained through FOIA requests as well as from the Gorbachev Foundation and the State Archive of the Russian Federation in Moscow, and from the personal donation of Anatoly Chernyaev) that include almost every word that Gorbachev, Reagan, and Bush actually said to each other.

RSVP to this event – co-sponsored by the National History Center of the American Historical Association and the Wilson Center’s History and Public Policy Program – here.

The National Security Archive Nunn-Lugar Conference on C-SPAN 3

American History TV on C-SPAN 3 will be airing three panel discussions from the National Security Archive’s December 2016 Nunn-Lugar conference, which brought together Nunn-Lugar veterans including Russians, Kazakhs, and Americans – and Senators Sam Nunn and Richard Lugar – in the historic Kennedy Caucus Room of the U.S. Senate to commemorate the 25th anniversary of the threat reduction legislation. This coming weekend the panels will air at the following times:

Panel 1 airs Sunday at 6:30pm & 10:30pm ET

Panel 2 airs Saturday at 10:30pm ET and Sunday at 4:30pm ET

Panel 3 airs Sunday at 9pm and 1am Monday ET

On Saturday January 28, starting at 10 am ET, the three panels will run in chronological order back-to-back (until about 1:35pm ET).

Able Archer 83 at the US National Archives

Save your seat today for Nate Jones’s talk on Able Archer 83, the secret history of the NATO exercise that almost triggered nuclear war. The talk takes place next Wednesday (1/25) at noon in the U.S. National Archives and Records Administration’s gorgeous McGowan Theater. RSVP here.

And for those of you lucky enough to be in New York City today – Jones will be signing copies of his new book on the 1983 War Scare at 7PM at Spritzenhaus33 – check it out if you’re in the area!

Advancing Israeli National Cyberspace Capabilities 

A 2011 translation of the Israeli government’s resolution concerning cyberspace capabilities sheds light on, among other things, its establishment of a National Cyber Bureau. The document contains two intriguing addendums; the first highlights the Bureau’s mission, organizational structure, and goals, which include advancing research and development in both cyberspace and supercomputing. The second addendum regulates responsibilities for dealing with the cyber field.

TBT Pick – Operation Desert Storm

storm

This week’s #TBT pick is a 2001 posting on Operation Desert Storm, which primarily focuses on the intelligence, space operations, and Scud-hunting aspects of the war. It also includes a report describing how Desert Storm affected China’s view of future warfare, a document that raises questions as to what lessons other nations have drawn from U.S. military engagements in the Middle East and the Balkans.

Sign Up!

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

Dos Erres Arrest, FBI Drastically Reduces Number of Pages for “Complex” Request Threshold, and More: FRINFORMSUM: 1/12/2017

January 12, 2017

kjljlkjlk

Dos Erres Arrest in Maryland

Federal agents arrested 54-year-old Jose Mardoqueo Ortiz Morales in Maryland last week for suspected involvement in the Guatemalan Special Forces brutal murder of more than 250 men, women and children 1982 – known as the Dos Erres massacre, which was part of the Guatemalan military’s “scorched earth campaign” carried out by soldiers notorious for their use of torture and brutal killing tactics. According to witness testimony, and corroborated through U.S. declassified archives, the soldiers murdered nearly the entire town and then threw their victims’ bodies into a well and nearby fields.

The National Security Archive’s Guatemala Documentation Project has been submitting FOIA requests and winning the release of declassified U.S. documents on Dos Erres since 1995. The declassified documents reveal shortly after the Kaibil operation, U.S. officials investigated the massacre and concluded that the Army was the only force capable of such an organized atrocity.

At least five other Kabiles have been convicted for their role in the massacre and were sentenced to more than 6000 years in prison. Kabiles responsible for Dos Erres have been arrested in the United States and Canada.

FBI Changes Rules for Labeling FOIA Requests Complex – Without Notice

A FOIA request submitted to the FBI this time last year was automatically labeled large or complex if the response totaled 2,500 or more pages of documents (the labeling of FOIA requests as “simple” or “complex” places them in different processing queues within an agency’s FOIA shop – ones that often have drastically different estimated completion timelines).

This year a FOIA request to the bureau only has to deal with 51 pages or more to be deemed complex – but you wouldn’t know it to look at the FBI’s website. Michael Best noticed the change in a response the FBI sent him and highlighted it on MuckRock. Best notes that, “Even with this new definition, the FBI says that its average processing time for ‘simple’ cases of 50 pages or less is 181 days – or slightly more than thirteen times the statutory limit. For complex cases, it’s 659 days – nearly fifty times what’s allowed by law.”

FOIA in Transition

The Reporters Committee for the Freedom of the Press released a fact-sheet on Jeff Sessions track-record with issues relating to the news media – including a primer on Sessions’ FOIA history (it’s not good – he placed a hold on bipartisan FOIA reform in 2014 over a 25-year sunset for FOIA’s exemption 5 – the bill ultimately died, and only removed another hold on similar legislation in 2016 after “he learned that some of his requested changes, which he did not detail, had been accepted”). The key takeaway: “Throughout his tenure in the Senate, Sessions repeatedly opposed FOIA reform and other transparency legislation.” When asked by Sen. John Cornyn (R-Texas) during his Senate confirmation hearing for Attorney General if he would support FOIA and the public’s right to know, Sessions agreed; later when asked by Sen. John Kennedy (R-Louisiana) if he would uphold FOIA, Sessions said it was “the law and would see it carried out.”

FOIA-released records show that the Office of Government Ethics (OGE) “lost contact with the Trump-Pence transition” for at least ten days after the election. Josh Gerstein writes the OGE director Walter Shaub urged “the Trump team to advise his office in advance about potential Cabinet picks, so they can be vetted for conflicts of interest prior to their selection being announced publicly. In at least some instances, the Trump team seems to have ‘precleared’ nominees with the ethics office. However, the released records are heavily redacted in some places, making it difficult to follow the online discussions.”

Declassification at the Presidential Libraries

Archive FOIA Project Director Nate Jones recently penned the inaugural posting for a new series on Presidential Library activities, which focuses on how classified presidential library records are released to the public. It is the first contribution of a regular Federalist column by Jones that will discuss the activities and new document releases of the Presidential Libraries. If you have any observations, questions, or hot releases please send them to Jones via Twitter to @NSANate.

New Director Takes Over OGIS; OGIS Issues New Regulations

Eight months after Jim Holzer stepped down, the Office of Government Information Services, OGIS, has a new director in Alina Semo. Semo comes to OGIS from the National Archives’ Office of General Counsel. While at NARA she “helped rewrite the National Archives’ FOIA regulations.” Prior to her tenure at NARA Simo “served as Director of Litigation in the Office of General Counsel” for the FBI. In a good interview with Semo posted on the OGIS blog, Semo notes that she’s eager to lead “a staff who is committed to both FOIA mediation and compliance issues.” The National Security Archive is excited to work with Semo, and has high hopes for her tenure – not least of which being OGIS beginning to issue official advisory opinions on FOIA.

OGIS has recently proposed new FOIA regulations, available for comment now on the Federal Register. The regulations are good but, as they note, focus on only one of OGIS’s three primary functions: dispute resolution services. OGIS’s mediation services are undoubtedly valuable – the National Security Archive contacts OGIS regularly when issues crop up with agencies – but agencies are not required to adhere to any OGIS suggestions that they propose during mediation, and in our experience frequently don’t.

OGIS notes that the regulations will be updated in the future to include provisions on its two other functions: reviewing agency FOIA policies, procedures and compliance; and identifying procedures and methods for improving compliance under the FOIA. The Archive looks forward to those updates, as agencies will likely pay more attention to OGIS’s expertise when it is issued through compliance mechanisms – such as advisory opinions.

ODNI Report on Improving Declassification – Does it Listen to Requester Community Suggestions?

December 2016’s ODNI report, “Improving the Intelligence Community’s Declassification Process and the Community’s Support to the National Declassification Center,” examines how to improve declassification. Focusing primarily on automatic declassification of historically significant documents 25 years or older, Steve Aftergood points out, the report “does not actually present any declassification policy proposals. Instead, in a near-parody of a government report, it calls for establishment of new working groups to write other reports and generate further recommendations.” The report does not answer important questions regarding, among other things, agency “equity” in older records that often require time-consuming, needless re-reviews, or how to handle information that is technically properly classified but would be common sense to release.

The report also did not include any of the suggestions Nate Jones made during the Public Interest Declassification Board’s 2016 public meeting on improving declassification, including further improving the efficiency of the National Declassification Center and expanding its authority; fully realizing the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document; and getting PIDB “into the declassification business.”

Transparency advocates should also keep a close eye on changes to the Executive Order governing classification; Aftergood says, “the report notes that agencies favor numerous revisions to President Obama’s executive order 13526 on classification policy, so that ‘updating the E.O. will be a major undertaking.’”

The FOILIES are Back

The Electronic Frontier Foundation is now accepting nominations for the 2017 Foilie Award – the award that recognizes the worst in government transparency. Anyone can nominate an agency and there is no limit to the number of nominations you can make; the deadline for nominations is January 31.

The Department of Energy won the Archives FOILIES nomination this year.

confusion

Need some inspiration? Last year the National Security Archive nominated one especially bad FOIA response from the Energy Department, in which the Department withheld a 1978 letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the Comprehensive Test Ban Treaty (CTBT) in full pursuant to FOIA’s exemption 5 – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject. Our 2015 nominations are here.

Cyber Risks to Medical Devices  

December 2016’s nonbinding guidance from the Food and Drug Administration on “Postmarket Management of Cybersecurity in Medical Devices” draws attention to the growing vulnerability of networked medical devices. This document is one of 11 new additions that were posted in the National Security Archive’s Cyber Vault on Wednesday, January 11. The guidance “applies to any marketed and distributed medical device including: 1) medical devices that contain software (including firmware) or programmable logic; and 2) software that is a medical device, including mobile medical applications.” Perhaps most significantly, the guidance suggests that manufacturers have a process for assessing the severity of patient harm if cybersecurity vulnerability is exploited, conducting a risk assessment to evaluate if the risk of patient harm is “acceptable” or not, and provides examples of which risks are acceptable and which are not.  

Able Archer in Brooklyn

Nate Jones will be doing a book signing for Able Archer 83: The Secret History at Spritzenhaus33 in Brooklyn on the evening of January 19. Please come join us for the fun and enlightening event if you’re in the area!

afvhollywoodTBT PICK – The Air Force versus Hollywood

This week’s #TBT pick is a 2010 posting from the Archive’s Nuclear Vault on the Air Force’s attempts in the 1950s and 1960s to refute novels and Hollywood films like Fail-Safe and Dr. Strangelove, which raised questions about control over nuclear weapons. To do so, the Air Force produced a series of documentary films, including one on called “SAC Command Post” that “tried to undercut Dr. Strangelove’s image of a psychotic general ordering nuclear strikes against the Soviet Union by showing that nuclear war could not be ‘triggered by unauthorized launch.’” Other films included “Project Headstart,” which depicts SAC’s first airborne alert test, and “Development of the Soviet Ballistic Missile Threat,” which shows the role of Air Force intelligence in the “missile gap” debates in the lead-ip to the 1960 presidential election.

Sign Up!

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

How Classified Presidential Library Records are Released to the Public

January 9, 2017

libraryThis a version of this article originally appeared in The Federalist, Newsletter of the Society for History in the Federal Government.

The Presidential Records Act of 1978 (PRA) established that the papers of U.S. Presidents legally belong to the American people. According to the law, the Archivist of the United States assumes responsibility for the custody, control, preservation, and accessibility of Presidential records after the President leaves office. Moreover, the Archivist of the United States has the “affirmative duty to make such records available to the public as rapidly and completely as possible.”

This is the first contribution of a regular Federalist column discussing the activities and new document releases of the Presidential Libraries.

Presidential records are made available to the public through each administration’s Presidential Library, which are located across the United States. The libraries themselves are often federal and private amalgamations. For example, while all of the records at the Ronald Reagan Presidential Library are maintained by the National Archives and Records Administration, the Library’s recreation of the Oval Office—and its other museum exhibits— were financed by private funding through the Ronald Reagan Presidential Foundation.

The PRA states that the public can request Presidential records “in accordance” with the Freedom of Information Act (FOIA) beginning five years after the President leaves office. In addition to the exemptions under FOIA in which documents can be withheld (except, wisely, for FOIA’s Exemption Five), the PRA defines six additional exemptions through which Presidential documents can be withheld for 12 years after the President leaves office. After this 12-year limit, both the former President and current President also retain the ability to invoke executive privilege and stop the release of information, though this privilege has rarely been used.

The cover page of the PFIAB report, previously classified as "TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON". It took over 12 years to win this document's release from the George H.W. Bush Library.

The cover page of the PFIAB report, previously classified as “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON”. It took over 12 years to win this document’s release from the George H.W. Bush Presidential Library.

Unfortunately, the release of Presidential records is very rarely “rapid,” especially if the documents were previously classified, as a substantial portion of those sought by researchers are. In most cases, a researcher must file a FOIA request with the Library for the record they are requesting. Then, if the Library determines the record is classified (a process that often takes longer than a year), the requester must file a second Mandatory Review request with the federal agency that claims “equity” of the record. Recently, the National Security Archive received a response to a Presidential record request which took over 12 years to process. A more efficient system would empower the Libraries themselves, or perhaps the National Declassification Center, to more quickly declassify these historic documents.

Additionally, Presidential Libraries are embracing digital platforms to make their records available to the widest possible audience. While all Libraries are moving in this direction, some are better-utilizing digital resources than others. The best I have seen to date is the George H.W. Bush Library which has excellent, expansive, and well organized online collections of the President’s memcons and telcons with foreign officials, National Security Council Meetings, NSC Deputies meetings, and much more. Other libraries would do well to follow the Bush Library’s digital lead.

Future columns will alert readers to Presidential Library document releases and appraise them. If you have any observations, questions, or hot releases, please send them my way via twitter: @nsanate.

DOJ Updates FOIA Regulations, Don’t Call it a Leak, and Much More: FRINFORMSUM 1/5/2017

January 5, 2017

DOJ Updates FOIA Regulations

dojfoiareg

The Justice Department updated its FOIA regulations in accordance with the FOIA Improvement Act of 2016, which was signed into law by President Obama on June 30, 2016, and requires all agencies to update their FOIA regulations within 180 days after the passage of the bill – which means, by my count, all agencies should have updated their FOIA regulations as of December 27, 2016.

The DOJ has published an interim final rule to its regulations, effective February 3, to give requesters 90 days to file FOIA appeals and instructed component agencies to notify requesters of both the “FOIA Public Liaison and the Office of Government Information Services (OGIS) to provide assistance at various stages throughout the request process.”

The DOJ also amended its fee provisions. According to the interim final rule, “these updates do not substantively change the analysis, but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the amended section provides for three overall factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester.” Thanks to Michael Ravnitzky for pointing out this language.

Don’t Call it a Leak

nsa

A FOIA request to the National Security Agency reveals that the agency disclosed classified information to the press “at least” three times in 2013. Steve Aftergood reports that, according to the agency, “the disclosures were not ‘leaks,’ or unauthorized disclosures. They were, instead, authorized disclosures. For their part, the reporters agreed not to disseminate the information further.” Congressional Notification — Authorized Disclosures of Classified Information to Media Personnel specifies that, “Noteworthy among the classified topics disclosed were NSA’s use of metadata to locate terrorists, the techniques we use and the processes we follow to assist in locating hostages, [several words deleted] overseas support to the warfighter and U.S. allies in war zones, and NSA support to overall USG efforts to mitigate cyber threats. The [deleted] personnel executed non-disclosure agreements that covered all classified discussions.”

The NSA cites Executive Order 13526 for the “authorized disclosures,” which Aftergood calls a “generous interpretation” as the EO doesn’t mention the press. Aftergood maintains, however, that, “the report accurately reflects the true instrumental nature of the classification system. That is, the protection of classified information under all circumstances is not a paramount goal. National security secrecy is a tool to be used if it advances the national interest (and is consistent with law and policy) and to be set aside when it does not… The concern, rather, is that the power of selective disclosure of classified material can be easily abused to manage and to manipulate public perceptions.”

Appeal Timeline Run-Around

On October 5, 2016, the United States Patent and Trademark Office (PTO) advised the American Center for Equitable Treatment (the Center) that it had 90 days to respond to a FOIA denial. The Center appealed the denial 42 days later – on November 16 (in its appeal the Center points out that PTO abused FOIA exemption 5 “by unlawfully claiming non-existent attorney-client privileges” and not taking steps to release segregable information). On December 19, the PTO denied the Center’s appeal solely on the grounds that it was untimely, even though it was submitted well within the timeline. The Center is now suing the PTO in federal court for violating the FOIA. Thanks to Josh Gerstein for pointing out this FOIA run-around on Twitter.

Chicago

Last year Chicago paid plaintiffs in public records lawsuits “nearly five times what the city paid in the previous eight years combined” – almost $670,000 spread across 27 FOIA cases, 19 of which involve the Chicago Police Department. Some argue that the increase may be due in part to the public’s increased awareness of what records they are entitled to under the FOIA after video footage emerged of CPD Officer Jason Van Dyke shooting Laquan McDonald 16 times (a judge ordered the city to pay $97,500 for wrongfully withholding the video footage). “Other FOIA lawsuits in which the city paid plaintiffs involved issues such as automatic license plate readers, missed court dates by police officers and the case of Dante Servin, the Chicago police officer who fatally shot Rekia Boyd in 2012 but was acquitted by a Cook County judge who said prosecutors brought the wrong charge.”

Chicago Mayor Rahm Emanuel’s administration is still facing 54 open FOIA lawsuits.

Some DOD Components Still Ignoring 2004 Cyber Directive 

A December 2016 Defense Department Inspector General report on cybersecurity weaknesses notes that, despite a commitment of more than $34 billion over the next five years, the DOD “continues to struggle with ensuring that all aspects of its information security program are adequately implemented.”
It also reports that some DOD components are still not complying with Homeland Security Presidential Directive 12, which mandates a federal standard for secure and reliable forms of identification for federal employees and contractors – and was issued in 2004.

This document is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, January 4.

nytEnd of Soviet Union

On Christmas Day 25 years ago, the last leader of the Soviet Union, Mikhail Gorbachev, stepped down and the hammer-and-sickle flags over the Kremlin were replaced with the red-white-and-blue of the Russian Federation. Triumphalists and conspiracy theorists ever since have attributed this monumental event to U.S. policy makers. But close review of the now-declassified documents of all the conversations between American and Soviet leaders published for the first time in the new book, The Last Superpower Summits (CEU Press), shows that keeping the Union together, and backing Gorbachev personally, remained at the core of U.S. policy all the way through 1991, for fear of a bloody disintegration that would dwarf the slaughter taking place at that time in Yugoslavia. “Yugoslavia with nuclear weapons,” as one official put it.

The National Security Archive’s Svetlana Savranskaya and Tom Blanton penned an op-ed for the New York Times commemorating the event and coinciding publication of their new book. The authors note that, just before delivering his farewell speech as president of the USSR, Gorbachev phoned Bush, who was at Camp David for Christmas with his grandchildren. Gorbachev expressed appreciation for all they had done together and his hope for a future partnership in some new form. The U.S. president felt that he was “caught up in history” at some “enormous turning point.” Gorbachev said a simple “good bye” and shook Bush’s hands virtually; Bush responded, “good bye.”

TBT pick: U.S. Intelligence Assessments of Potential Nuclear Powers, 1977-2001

This week’s #TBT pick is a 2013 posting from our Nuclear Vault on intelligence community assessments of potential nuclear powers, including  a heavily excised version of the Director of Central Intelligence report from December 1979 titled The 22 September 1979 Event, referring to the controversial mystery flash over the South Atlantic, which may have been a nuclear test. The massively excised version of the report includes previously unreleased material. However, most of the withheld information — including analysis of whether Israel, South Africa or both were behind the event — was declassified by the CIA years ago. This discrepancy is a prime example of both the enduring problem of over-classification and of the U.S. government’s great difficulty in making consistently rational declassification decisions.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

 

25 Years Later, US Evidence on Caloto Massacre Still Under Wraps

December 16, 2016

Today, Colombians mark 25 years of impunity for members of the police implicated in the December 16, 1991, killing of 20 members of the Colombian Nasa-Paez indigenous group in the Caloto, Cauca, massacre. With Colombia now poised to enter a long period of transitional justice, cases like Caloto are emblematic of how Colombian courts have largely failed to bring members of the Colombian security forces to justice even in cases where they have succeeded in putting away their civilian collaborators.

Civilian judicial proceedings against two Cali police officials long suspected of helping narcotraffickers carry out the massacre only began in February 2015, more than 23 years after the killings and over 15 years after a military tribunal absolved the officers of any responsibility in February 1999. This is despite the fact that Colombian President Ernesto Samper formally recognized the state’s responsibility for the killings in 1995. The officers, Gen. Fabio Alejandro Castañeda Mateus and Maj. Jorge Enrique Durán Arguelles, were ordered to be re-tried in civilian court after Colombia’s Supreme Court of Justice found that the military prosecution “had as its sole purpose to render ineffective the accusation against Castañeda and Durán and to facilitate the cessation of proceedings for such grave violations of human rights.”

The details surrounding the case are both chilling and emblematic of wider problems in Colombia. A March 1993 cable from the embassy of US Ambassador Morris Busby considered the Caloto massacre in light of the impact that the surge of narco-paramilitary influence in the region had on traditional conflicts over land and landownership.

caloto-busby

US Embassy contacts “cited Caloto as their worst fears come true of what could result from a mixing of Amapola and Cauca’s traditional land conflicts.”

More than a year earlier, another US Embassy cable had reported that one of the owners of the “El Nilo” ranch where the massacre occurred, Luis Alberto Bernal Seijas, was “in DEA’s files,” meaning the US Drug Enforcement Administration. The Embassy said that Colombian authorities had issued arrest warrants for a lawyer and two employees of the Cali-based real estate firm owned by Bernal Seijas and his brother Jose Antonio, Sociedad Inversiones Piedras Blancas.

Luis Alberto Bernal Seijas was later convicted as an intellectual author of the crime in 1996, but spent more than five years evading justice before he was arrested for an immigration violation in Panama in 2001.

US intelligence records on his arrest depict him as a longtime drug trafficker with criminal associations going back as far as the Medellin drug cartel. The US Defense Intelligence Agency (DIA), for example, identified Bernal as a “Panama-based Colombian drug trafficker,” a “former pilot for the infamous drug trafficker Gonzalo Rodriguez-Gacha” and “the individual in charge of finances and logistics in Panama for the Colombian United Self-Defense Groups (AUC),” which was designated a Foreign Terrorist Orgnization by the US State Department later that year. The DIA added that Bernal’s Panama-based aviation company, which owned six planes, “was probably involved in the transhipment of large quantities of cocaine from Colombia through Panama.”

The declassified paragraphs of a subsequent Central Intelligence Agency (CIA) report, titled, “Narcotics: [deleted] Information on Individuals, Properties, and Compaines Associated with Expelled Colombian Narcotics Trafficker and United Self-Defense Forces of Colombia Collaborator Luis Bernal Seijas,” echo the earlier DIA analysis. Bernal Seijas had used the alias “Nicolas Bedoya Herrera” while on the run in Panama and had purchased “a sizable amount of property” and ran “several businesses” there. One of these was a “general aviation company [redacted] believed to have been used by Bernal for the transport of arms and drugs to and from Colombia.”

Twenty-five years later, nearly three entire pages of the a six-page CIA report on the intellectual author of the Caloto massacre remain classified. What might these redacted pages tell us about the police officials now being re-tried in civilian court? What will those proceedings tell us about collusion between narcotraffickers and government security forces in a deadly campaign against indigenous groups with territorial claims? Most importantly, will Colombia finally convict a member of the security forces in the 25-year-old Caloto massacre? Time will tell.

DOJ Seeks Comments on “Release to One, Release to All” Policy by Dec. 23: FRINFORMSUM 12/15/2016

December 15, 2016

Release to One, Release to All – Law Enforcement Carve-out Citing Mosaic Theory a Slippery Slope

release

The Department of Justice is seeking comments on the “Release to One, Release to All” policy prepared by the Office of Information Policy (OIP); the comment period is open through 11:59 PM on December 23.

The draft contains two potential options for the timing of posting FOIA-processed documents: “1) agencies should post documents online as soon as administratively feasible following a release to a requester; or 2) agencies should post documents online as soon as administratively feasible, but only after a delay of five working days following release to a requester, to allow requesters a brief period of time with exclusive access to the requested records.”

The National Security Archive would be happy to see agencies posting documents either immediately or with a brief delay.

The potentially problematic part of the policy, however, is part B – the “good cause” exemptions to posting. The “good cause” exemption, if enacted, would contain a broad carve-out for law enforcement agencies wishing to not publicly release records under the so-called“mosaic theory” argument, in which intelligence agencies argue that someone could collect “seemingly disparate pieces of information and assembl[e] them into a coherent picture” in such a way that would pose a grave damage to national security.  This could become an “any document, any time” excuse for some agencies to avoid their responsibilities under FOIA.

Department of Defense Releases Office of Net Assessment Documents

ona

The Department of Defense recently posted a batch of 61 documents from Andy Marshall’s Office of Net Assessment (ONA) (the documents begin with “litigation release”). Topics covered include “Axis of Troubles: Male Youth, Factional Politics and Religion,” “Building ‘Hedgehogs’ in the Persian Gulf Region,” and  “Why China Seeks Confrontation with the United States.” ONA was established in 1973 and Marshall served as its director from its inception until early last year; the office looks at a wide variety of significant issues, ranging from “nuclear proliferation, future naval warfare and the use of space,” and hopefully this batch of documents is an indicator that more ONA documents will eventually be made public.

Flynn “Did Not Have Permission” to Share Classified Information, Army Says

Army documents from a 2010 investigation into complaints Michael Flynn inappropriately divulged classified information on Afghanistan with foreign military officials “determined that Flynn did not have permission to share the particular secrets he divulged.” The documents were released to the Washington Post under the FOIA. Flynn was not punished for the disclosure, “after the investigation concluded that he did not act ‘knowingly’ and that ‘there was no actual or potential damage to national security as a result.’”

In an interview with the Post’s Dana Priest that was published on August 15, 2016, Flynn said of the investigation: “I’m proud of that one. Accuse me of sharing intelligence in combat with our closest allies, please.”

A month earlier at the Republican National Convention in July, Flynn condemned Hillary Clinton for her her private email set-up, urging the crowd to “lock her up,” and saying, “If I, a guy who knows this business, if I did a tenth, a tenth of what she did, I would be in jail today.”

First declassified listing of strategic warheads outside Russia in 1991 = 3,429

Newly declassified documents – released to coincide with the 25th anniversary of the Nunn-Lugar Act –  show that the risk of nuclear proliferation at the end of the Soviet Union in 1991 was even greater than publicly known at the time, with 3,429 Soviet strategic warheads scattered outside of Russia in various former Soviet republics. The Nunn-Lugar legislation began a flow of U.S. funding that helped secure the post-Soviet nuclear weapons as well as reduce chemical and biological dangers, with the hands-on cooperation of Russian, Kazakh and American military personnel and scientists. The National Security Archive, in addition to posting ten newly declassified documents helping show just how much cooperative security worked, hosted a 25th reunion this week of dozens of Nunn-Lugar veterans including Russians, Kazakhs, and Americans – including Senators Sam Nunn and Richard Lugar – in the historic Kennedy Caucus Room of the U.S. Senate.

Obama Declassifies Top Secret Intelligence Files on Repression in Argentina

The Obama administration has released a comprehensive CIA report on Operation Condor operations showing that there existed plans to target Amnesty International officials as well as human rights groups, and planned overseas missions in Paris and London . “The basic mission of Condor teams to be sent overseas,” according to the CIA, was “to liquidate top-level terrorist leaders. Non-terrorists also were reportedly candidates for assassination,” the CIA reported in May 1977, and “some leaders of Amnesty Internation[al] were mentioned as targets.”

The secret CIA report is included among more than 500 pages of documents on repression during the military dictatorship in Argentina declassified today by the Obama administration as part of a commitment made by the president last March when he visited Buenos Aires on the 40th anniversary of the military coup.

Among the documents that the National Security Archive identified as newsworthy was a NSC summary of the torture of Alfredo Bravo the president of Argentina’s Permanent Assembly for Human Rights. The report was sent in August 1978 to President Carter’s National Security Advisor, Zbigniew Brzezinski, by his top aide for Latin America, Robert Pastor, who detailed the atrocities the military had committed against Bravo. Pastor reported that Bravo had been “subjected to a bucket treatment where his feet were held in a bucket of ice water until thoroughly chilled and then shoved into a bucket of boiling water.” Bravo had also been subjected to electrical shocks and “subjected to ‘the submarine’—repeatedly being held under water until almost drowned.”

Remains of Eighth Individual Listed in Notorious Guatemalan “Death Squad Diary” ID’d

The exhumation of La Verbena cemetery in 2010 -- (c) James Rodríguez, mimundo.org

The exhumation of La Verbena cemetery in 2010
— (c) James Rodríguez, mimundo.org

The Guatemalan Forensic Anthropology Foundation (FAFG) has confirmed the identification of one of the victims associated with the notorious “Death Squad Diary,” or Diario Militar, a Guatemalan military document of the disappeared made public in 1999 by the National Security Archive. FAFG unearthed Juan Ramiro Estuardo Orozco López’s remains during its exhumation of ossuaries containing thousands of unidentified corpses at La Verbena cemetery in Guatemala City, and recently identified him by matching his body’s DNA with his family’s. In 1999, the Historical Clarification Commission concluded that some 200,000 civilians lost their lives during Guatemala’s civil conflict, among them 40,000 disappeared by state security forces. The National Security Archive continues its forensic archival work to find evidence of the fate and whereabouts of the disappeared, as well as to hold the Guatemalan state responsible for kidnapping and killing them.

TBT – U.S. Nuclear Terrorism Exercise Leaves Indianapolis in “Ruins”

Today’s #tbt pick is a 2012 posting on Mighty Derringer – a secret exercise by a U.S. government counter-terrorist unit that uncovered a host of potential problems associated with disrupting a nuclear terrorist plot in the United States. The posting contains almost 70 declassified documents and is notable for being the first publication of documents that provide in-depth exposure into all aspects of such an exercise – including the state-of-play at key points and the array of issues involved in disabling terrorist devices.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

 

New Identification of Guatemala’s Disappeared

December 13, 2016
"The exhumation of La Verbena cemetery in 2010" -- (c) James Rodríguez, mimundo.org

The exhumation of La Verbena cemetery in 2010 — (c) James Rodríguez, mimundo.org

The Guatemalan Forensic Anthropology Foundation (FAFG) has confirmed the identification of one of the victims associated with the notorious “Death Squad Diary,” or Diario Militar, a Guatemalan military document of the disappeared made public in 1999 by the National Security Archive. FAFG unearthed Juan Ramiro Estuardo Orozco López’s remains during its exhumation of ossuaries containing thousands of unidentified corpses at La Verbena cemetery in Guatemala City, and recently identified him by matching his body’s DNA with his family’s.

The Diario indicates that Orozco López, the second person captured by Guatemalan military intelligence in operations described in the document, was killed in Guatemala City on August 31, 1983, as he tried to flee his attackers. According to his entry, Orozco was an electrical engineer charged with radio interference for the Revolutionary Organization of People in Arms (ORPA), one of four principal insurgent groups that sought to overthrow the Guatemala government during the height of the country’s 36-year armed civil conflict.

"Orozco's entry in the Guatemalan Death Squad Diary" -- Courtesy National Security Archive

Orozco’s entry in the Guatemalan Death Squad Diary
— Courtesy National Security Archive

Although the Diario Militar says he was shot down in the street, his killers disappeared his body, and his family knew nothing of his whereabouts until FAFG’s findings.

As part of its ongoing work to expose human rights violations committed during the conflict, FAFG undertook the exhumation at La Verbena cemetery in 2010 and launched a national campaign called “My Name Is Not John Doe” (Mi Nombre No Es XX) to convince relatives of the disappeared to provide the Foundation with DNA samples.

According to an email from José Suasnavar, FAFG’s deputy director, the exhumation of La Verbena and analysis of the bones is completed, but genetic analysis of some 15,000 DNA samples taken from bodies continues. The cemetery’s mass burying sites contained a mixture of corpses placed there when families were no longer able to pay for their graves, and bodies that were dumped anonymously. “With the identification of these individuals, we are getting closer to a level of the ossuary that may contain a greater quantity of remains buried as XX inside the cemetery,” said Suasnavar.

Orozco now becomes the 8th victim of the brutal campaign to hunt down, secretly imprison, torture, and kill suspected subversives in Guatemala documented by the Diario Militar during 1983-85.  The first victims of the Diario to be identified by FAFG, in November 2011, were Amancio Samuel Villatoro and Sergio Saúl Linares Morales. Their skeletal remains had been exhumed at a former army detachment in Comalapa, Chimaltenango, in 2003. Another four victims, whose remains were found in the same at the same site, were identified in March 2012: Juan de Dios Samayoa Velásquez, Hugo Navarro Mérida, Moisés Saravia López, and a fourth whose identity has not been publicly disclosed.

"Hernández Cusanero's entry in the Guatemalan Death Squad Diary" -- Courtesy National Security Archive

Hernández Cusanero’s entry in the Guatemalan Death Squad Diary
— Courtesy National Security Archive

Along with FAFG’s identification of Orozco, the ID in 2015 of José Zenon Hernández Cusanero – the seventh person among 183 men and women victims of the Military Diary to be restored to his family – affirmed the importance of documents in the fight for justice in Guatemala, denying again the military’s attempt to erase an individual and a history.

In 1999, the Historical Clarification Commission concluded that some 200,000 civilians lost their lives during Guatemala’s civil conflict, among them 40,000 disappeared by state security forces. The National Security Archive continues its forensic archival work to find evidence of the fate and whereabouts of the disappeared, as well as to hold the Guatemalan state responsible for kidnapping and killing them.