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Fighting Russia’s “Foreign Agent” Law, Deadline to Submit Comments for CIA Operational Files Review Tomorrow, and Much More: FRINFORMSUM 4/30/2015

April 30, 2015
Freedom of Information Foundation director and human rights lawyer Ivan Pavlov.

Freedom of Information Foundation director and human rights lawyer Ivan Pavlov.

This afternoon the Archive’s Nate Jones will join other experts at The Kennan Institute in a panel discussion comparing the Russian and American experience and practice of public oversight of the state.  The successes in the Russian arena are even more impressive considering the notorious 2012 “foreign agents” law that labels any Russian NGO receiving foreign funding a “foreign agent” and forces them to register with authorities. Russian groups, however, are showing remarkable tenacity in finding ways to operate in the harsh environment. The Moscow Times must-read profile of Freedom of Information Foundation (St. Petersburg), and it’s director Ivan Pavlov, describes how this Russian NGO advocating transparency (a longtime institutional ally of the National Security Archive) is continuing to succeed in Russia’s harsh environment.

Tomorrow is the deadline to submit comments suggesting which CIA operational files should be removed from their exempted status. The CIA is in the process of conducting its third decennial review of its operational files, which is required by the CIA Information Act of 1984, to “include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.” The National Security Archive recently submitted comments, which highlight the need for the CIA to grant the public the ability to request search and review of the Clandestine Service History Program files (the second decennial review in 2005 added a new category of exemption of Policy and Management Files “Including Clandestine Service History Program files”). CIA Historian Dr. David Robarge recently emphasized the need to disclose these important histories, saying during the recent forum, “NDC Prioritization: What Secrets Do People Want to See,” that “I’d like to see us acknowledge more covert actions, but within that set that we have, we need to get more documentation out.” It will be interesting to see if the Office of the Director of National Intelligence, its General Counsel Robert Litt — who announced in 2014 that classifiers and declassifiers must now ask: “not can we classify –but should we?”–, NARA, the Office of the Historian at the Department of State, and history organizations put their money where their mouth is on improving declassification and submit their own comments to the CIA.

U.S. Attorney General Alberto Gonzales announces his resignation from the Bush administration on Monday, August 27, 2007, in Washington, DC. Photo: Chuck Kennedy- MCT.

U.S. Attorney General Alberto Gonzales announces his resignation from the Bush administration on Monday, August 27, 2007, in Washington, DC. Photo: Chuck Kennedy- MCT.

The New York Times recently published a redacted version of a joint July 2009 report by the inspectors general for five intelligence and law enforcement agencies that the paper obtained through a FOIA lawsuit. The document found the secrecy surrounding the National Security Agency’s (NSA) post-9/11 surveillance program that vacuumed up Americans’ phone call and email data, Stellar Wind, hampered its effectiveness. The report also notes that law enforcement agencies struggled to identify instances where the program helped deter terrorist actions against the United States; the FBI reported that only 1.2 per cent of surveillance leads obtained through the program made significant contributions in fighting terror between 2001 and 2005. The report also criticizes then-Attorney General Alberto Gonzales “for ‘misleading’ Congress in his testimony about the program” before the Senate Judiciary Committee in 2006, and found that “only a single” Justice Department attorney reviewed the legality of the program for first year and a half of its existence.

A bipartisan group of lawmakers introduced a bill on Tuesday to end the NSA bulk surveillance of American phone records. Sen. Patrick Leahy (D-Vt.) said of the USA Freedom Act, “If enacted, our bill will be the most significant reform to government surveillance authorities since the USA Patriot Act was passed nearly 14 years ago.” The USA Freedom Act would require the Foreign Intelligence Surveillance Court to provide a provide public summary or redacted version of significant opinions, would grant technology companies “more leeway to report on the scale of national security requests for data they receive, and it would provide for an advocate for the public’s privacy rights at the Foreign Intelligence Surveillance Court, which generally hears only the government’s side of an argument.” Some civil liberties groups, like the Center for Democracy & Technology, support the legislation, while others, like the American Civil Liberties Union, do not believe it goes far enough and would prefer to see Section 215 of the USA Patriot Act, which authorizes the bulk collection and expires on June 1, lapse.

In 2013 the White House granted the CIA waivers to conduct drone strikes in Pakistan with more leeway than other parts of the world. Reports are surfacing in the wake of President Obama’s recent announcement that an American and an Italian hostage were killed in a CIA drone strike in that country in January that the CIA is allowed to conduct strikes in Pakistan without “knowing the identities of the people” targeted. Additional reporting notes, “Every independent investigation of the strikes has found far more civilian casualties than administration officials admit.” In the light of recent scrutiny of the drone program, President Obama allegedly plans to make a push to transfer the program from the CIA to the Pentagon, in hopes it would make the program more transparent. The move would maintain a role for the CIA, which would continue to provide intelligence. President Obama tried to move the program from the CIA to the DOD in 2013, but faced stiff Congressional opposition.

The New York Times published the names of three high-level CIA officials in charge of orchestrating drone strikes in a story on Congress’ continued support of the CIA’s drone program. The Times did so against agency wishes. According to NYT executive editor Dean Baquet, while he took the agency’s request not to publish the names seriously, he ultimately decided to publish them because the involved officials are not undercover agents, but rather government officials crucial in “one of the major issues in modern American warfare.” Baquet also noted that the WikiLeaks and Snowden disclosures put more pressure news agencies, once “too quick to withhold information at the request of the government”, to not hold back. “I think the secrecy is now part of the story,” Baquet said.

Steve Aftergood reported this week that the security cleared population decreased by 12.3 per cent last year (down from 5.1 million security cleared persons in October 2013 to 4.5 million in October 2014), thanks to a “concerted effort” by agencies to reduce the number of security clearances. Aftergood notes “Most of the reductions occurred within the Department of Defense, which reported a 15% decrease in clearances.”

We'll see em eventually.

We’ll see ’em eventually.

The hacking of President Obama’s unclassified emails by Russian hackers raises many complicated questions about the emails and their content, as well as larger questions about the state of the US government’s relatively poor cyber security. Archive FOIA Director Nate Jones notes “it’s currently –by design– impossible for us on the outside to have enough information to meaningfully tackle [these questions]. But if we judge by this administration’s past practice, it will bury its head in the sand, refusing to admit that the need for discussion about access to information actually exists.”

The nuclear inspection agency that is central to the current Iran negotiations is flunking international transparency norms, according to a report posted this week by Freedominfo.org and the National Security Archive’s Nuclear Vault. Key documents about International Atomic Energy Agency (IAEA) proceedings, found in various national archives and private collections but closed at Agency headquarters in Vienna, are included in the posting.

The FOIA Advisory Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration,” recently held its fourth meeting. We will post a more comprehensive blog about the fourth meeting once the video is posted; the Committee’s third meeting on January 27th was dedicated to subcommittee reports on proactive disclosure, fee issues, and oversight and accountability.

US troops patrol the streets near a food line in Santo Domingo on 5 May 1965 during the Dominican Crisis.

US troops patrol the streets near a food line in Santo Domingo
on 5 May 1965 during the Dominican Crisis.

This week’s #tbt document pick is chosen with the Archive’s recent posting on newly declassified White House tape transcripts that reveal LBJ regretted sending U.S. troops into the Dominican Republic in 1965, telling aides less than a month later, “I don’t want to be an intervenor,” in mind. This week’s #tbt pick is a 2013 posting on forced disappearance in the Dominican Republic, containing a collection of State Department cables on the May 26, 1994, disappearance of celebrated journalist and university professor Narciso (Narcisazo) González.

 

 

Information Asymmetry and Obama’s Hacked Emails.

April 27, 2015
We'll see em eventually.

We’ll see ’em eventually.

Last week CNN and the New York Times reported that the breach into the Department of State’s unclassified email systems had spread to the White House.  While the server containing the President’s emails was not breached, an unknown number of unclassified emails he sent to other aides (if we believe the anonymous administration sources quoted by the New York Times) were read by Russian hackers and shared with the Russian intelligence service.

Only the hackers, the people the hackers shared the emails with, and (presumably) some in the Obama administration know how many emails were breached and what their content was.  This means that the public is faced once again with the dilemma of political “information asymmetry” –when we are rendered more powerless because we are not allowed to know the magnitude of a problem facing our elected representatives.

Reading between the lines of the Times article, White House officials seem to be saying: this is our problem, let us deal with it, and stop prying.  (The official explanation given to the Times was to “avoid tipping off the Russians.”)

While some may be more than happy with this explanation, it doesn’t work so well for me.  Here are a few questions about the situation:

  • How many emails were breached and what was their general content?  Was it mundane, day to day information? Merely information about “his golf game?”  Or were they conversations with diplomats and ambassadors where the president may have emailed something unclassified but still geopolitically sensitive: “I think we should (or should not) allow Russia to control events in the Donbass region” ? Do Americans have a right to know what their president actually thinks?  Or are the nothing-burger explanations of Josh Earnest, Jen Psaki and Marie Harf the best we deserve?
  • Given the our government’s relatively poor cyber security, how likely is it that American adversaries had access to the content that Manning and Snowden (and others) leaked, before the American public did?  Is it possible that our adversaries had already culled SIPRnet, or gained admin system access to NSA and other classified systems?  How likely is it that the information these “traitors” released to the public was already known by our adversaries?
  • If these emails have indeed been shared with the Russian intelligence service, could its advantage be leveled if the White House (or another group of hackers) posted the emails online?  Is it better for only a rival to have this information?  Or everyone, including the president’s constituents?

The questions above are asked seriously, and I know the answers are certainly complicated.  And it’s currently –by design– impossible for us on the outside to have enough information to meaningfully tackle them.  But if we judge by this administration’s past practice, it will bury its head in the sand, refusing to admit that the need for discussion about access to information actually exists.

The same cable,(accusing the NS Archive of

The same cable (accusing the NS Archive of “dredging up the past”) leaked by WikiLeaks, released by the State Department, then released on appeal by ISCAP.

The Department of State refuses to admit that the WikiLeaks State Department Cables are authentic, redacting (flagging, actually) large portions in response to FOIA requests.   To its partial credit, the Office of National Intelligence declassified a large amount of information on US dragnet data collection in response to the Snowden Revelations (and continues sucking all the data up), but at the same time it allows the agencies it oversees to continue to hide 1940s-era histories.

For Pete’s sake, the first thing the sputtering National Declassification Center (a flagship Obama classification reform initiative) chose to declassify were the Pentagon Papers, already available in every public library, hardly a revelatory symbolic declassification.

After Norm Eisen left and was never really replaced, the admin's Opengov and FOIA initiatives went downhill fast.

After Norm Eisen left and was never really replaced, the admin’s Opengov and FOIA initiatives went downhill fast.

So. I predict the Administration and its securocrats will again attempt to proceed as if it were business as usual.  The only thing worse that private discussions being revealed to a foreign adversary –private discussions being revealed to the public.

I will, however, end with a glimmer of good news.  The public will eventually know what was in President Obama’s emails, including those hacked by the Russians.  After he’s left office, of course.  The P5/B5 “withhold it because you want to” exemption –which these emails would certainly be withheld under– expires 12 years after the date the document was created (the drafters of the Presidential Records Act had foresight FOIA drafters did not).  And unlike former President George W Bush and former Secretary of State Clinton, President Obama took action in 2009 to ensure that his email and the email of his White House employees would be preserved for the public to see.

Delayed satisfaction?  Yes.

Denied public engagement?  Yes too.

The power of political Information Asymmetry.

Secret Hold Placed on Senate FOIA Bill, Limited Time to Suggest which CIA Operational Files Should be Removed from Exempted Status, and Much More: FRINFORMSUM 4/23/2015

April 23, 2015
"Without objection?" Not so fast. Senator Cornyn will have to overcome secret holds on the FOIA bill.

“Without objection?” Not so fast. Senators Leahy (pictured), Cornyn, and Grassley will have to overcome secret holds on the FOIA bill.

Unknown Senators are placing a secret hold on the Senate’s FOIA bill, S 337. The bill was introduced by Senator John Cornyn (R-Tx) and cosponsored by Patrick Leahy (D-Vt) and Charles Grasssley (R-Ia), the ranking member and chair of the Senate Judiciary Committee, and is virtually identical to the bill that passed the Senate via unanimous consent last session. The bill (now at risk due to the secret hold) would strengthen transparency by: increasing the independence of the FOIA Ombuds Office, the Office of Government Information Services (OGIS); improve access to digital records; codify a presumption of openness; require agencies to update their FOIA regulations within 180 days of the bills passage; and make clear that “unusual” FOIA requests (that are fewer than 50,000 pages) get the standard FOIA extension of 10 days.

In the past, transparency advocates have had to call every single Senate office to find out which Senator was holding up the bill, and why. Hopefully the hold will be lifted before requiring advocates to resort to such measures to improve the public’s access to information.

There is a limited-time-only chance to *suggest* which CIA operational files should be removed from their exempted status, a result of one of the most damaging B3 FOIA Exemption statutes ever passed. According to a recent notice published in the Federal Register, “The CIA is in the process of conducting the 2015 decennial review of its operational files to determine whether any of the previously designated files, or portions thereof, can be removed from any of the specified categories of exempted files.” The CIA Information Act of 1984 requires that the decennial review “include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.” The comment period ends Friday, May 1.

The DEA has been in the news a lot this past year, including for an agent impersonating a young woman posting these photos of underage children as part of an investigation.

The DEA has been in the news a lot this past year, including for an agent impersonating a young woman posting these photos of underage children on Facebook as part of an investigation.

Michele Leonhart, the head of the Drug Enforcement Administration (DEA), is stepping down after reports surfaced of DEA agents having “sex parties” with prostitutes hired by Colombian drug cartels (the Justice Department, the DEA’s parent agency, even felt compelled to issue a memo to all employees reminding them not to solicit prostitutes, regardless of whether or not they were on duty, after the news broke). According to the New York Times, “Seven agents who admitted to the accusations were given suspensions of two to 10 days, and under harsh questioning from the House panel, Ms. Leonhart said that she had been powerless to take more aggressive action such as firing them or revoking their security clearances.” The DEA has also made headlines in the past year for: maintaining a database of “virtually all” Americans’ outbound overseas call records, even if the callers were not involved in any criminal activity, for two decades; initiating “a massive national license plate reader program” that connects DEA license plate readers with local law enforcement agencies’ own plate readers around the country; and employing an agent who impersonated a young woman on Facebook and posted racy photos of her and pictures of her underage son and niece on the social media site as part of a drug investigation.

Hillary's email scandal does n't mean the State Dept. will get any better at preserving its e-mails.

Hillary’s email scandal does n’t mean the State Dept. will get any better at preserving its e-mails.

The State Department has no plans to implement an e-mail preservation program despite the uproar caused by news that Hillary Clinton used a private e-mail address and stored her e-mails on a private server while Secretary of State, which, although in breach of records keeping laws and best practices, likely preserved her e-mail better than the State Department could have given its paltry .oo61% e-mail preservation rate. The public State Department Strategic Plan for FY 2014 — 2016 lists transitioning e-mail to cloud computing (page 16) as a goal, but nowhere does it mention NARA requirements that by December 31, 2016, that “Federal agencies must manage all email records in an electronic format.”

NARA has released draft guidance on its e-mail management and storage program, Capstone, and is soliciting public comment. To this end, NARA is also hosting a public meeting for discussion of the draft schedule on May 21, 2015, from 10:00 to 12:00 at the National Archives, McGowan Theater, 700 Pennsylvania Avenue NW., Washington, DC 20408.

Amnesty International is accusing the Obama administration of granting “de facto amnesty” to those involved in the CIA’s torture program, lambasting the administration for taking no punitive measures against those involved since the release of the Senate Intelligence Committee’s report on the CIA program. Amnesty International is requesting that the Justice Department “reopen and expand its investigation” into the CIA’s secret rendition, detention and interrogation program and that the White House and other U.S agencies disclose the names, locations and dates of operations of all secret prisons operated by the CIA in the program.

Severe sentence likely for Sterling, but no jail time for Gen. Petraeus. Photo credit: Kevin Wolf/AP

Severe sentence likely for Sterling, but no jail time for Gen. Petraeus. Photo credit: Kevin Wolf/AP

Federal prosecutors are seeking a “severe” sentence, likely of 20 – 24 years given the guidelines, for ex-CIA officer and convicted leaker, Jeffrey Sterling. Sterling was found guilty in January of leaking classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to New York Times reporter, James Risen. The quick trial, long delayed by debates over whether or not the Justice Department would force Risen to testify, inevitably took less than two weeks (without Risen’s testimony). Prosecutors urged the judge in a federal filing “to make an example of Sterling in order to discourage other government employees with access to classified information from taking a similar course.” General David Petraeus, on the other hand, is pleading guilty today to a misdemeanor for providing classified information to his mistress and biographer, Paula Broadwell, and for lying to the FBI about the leaks. Petraeus will serve two years probation and receive a $40,000 fine.

A report recently issued by the lawyers’ group, the National Association of Criminal Defense Lawyers, is calling on Congress to ban evidence obtained through the misuse of a United States Postal Service program called “mail covers.” The program “records the information on the outside of letters and packages delivered to people suspected of criminal activity”, which the USPS keeps for 8 years, and is not subject to judicial review. An October 2014 USPS Inspector General audit revealed the agency approved 50,000 requests from law enforcement and its own inspectors to monitor Americans’ mail service in 2013 – about 20% of which were improperly approved. Documents obtained under the FOIA by the New York Times also depict a generally lax attitude towards the program’s oversight, and “that in many cases the Postal Service approved requests to monitor an individual’s mail without adequately describing the reason or having proper written authorization.”

Prosecutors in St. Louis dropped over a dozen charges in a violent robbery case this week “one day before a city police officer was to face questions about a secret device used to locate suspects.” The “StingRay” device at the center of the case is subject to a confidentiality agreement, itself the subject of increased attention, between the St. Louis police and the FBI. A recent Guardian article revealed one aspect of the non-disclosure agreement between local law enforcement and the FBI is “a clause forcing law enforcement to notify the FBI if freedom of information requests are filed by members of the public or the media for such information, ‘in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels.’”

The Information Security Oversight Office (ISOO) will be holding an Open House on May 8, 2015. The event will include an overview of both the Public Interest Declassification Board and the Interagency Security Classification Appeals Panel (ISCAP). ISCAP rules on mandatory declassification review (MDR) appeals, and ISCAP officials have overruled agency classification decisions more than 70 percent of the time since 1996. Attendance is free.

This week’s #tbt document pick is chosen with ISOO’s important declassification role in mind, and is ISOO’s 2010 Report to the President – annually one of the best tools researchers have to assess the U.S. classification system. The 2010 report found that, among other things, when it comes to classification, the majority of agencies don’t listen to the president.

Happy FOIA-ing!

Rwanda Peacekeeping Force Commander Roméo Dallaire: “… the living hell that surrounds us…”

April 16, 2015
Lieutenant General Roméo Dallaire (center), the Force Commander of the United Nations Assistance Mission for Rwanda (UNAMIR), recalls his experience as a peacekeeper and what it was like to be tasked with implementing the 1993 Arusha Peace Accords, as his Deputy, Major General Henry Anyidoho (left), looks on.

Lieutenant General Roméo Dallaire (center), the Force Commander of the United Nations Assistance Mission for Rwanda (UNAMIR), recalls his experience as a peacekeeper and what it was like to be tasked with implementing the 1993 Arusha Peace Accords, as his Deputy, Major General Henry Anyidoho (left), looks on.

Declassified Documents Shed Light on the Effect of UN Decision to Withdraw Peacekeeping Troops from Rwanda at Height of Genocide

By: Clara Fisher

Today the National Security Archive is posting 85 documents from the Clinton Presidential Library that shed new light on the US decision to call for the withdrawal of UN peacekeeping troops (UNAMIR) from Rwanda. The documents show that the withdrawal decision was made by the US before Belgian peacekeepers were killed, and demonstrate that the UN Security Council’s passing of Resolution 912 on April 21, 1994, to withdraw a majority of UN troops, was the result of heavy US influence. The documents also reveal the high-level discussions, deliberations, and trade-offs considered by international leaders during the lead-up to the Security Council vote, and underscore how the decision was made divorced from the reality on the ground. Today’s posting highlights the effect that this decision had on UNAMIR Force Commander, Major-General Roméo Dallaire and his troops.

From the start of its mandate in October 1993, UNAMIR was undersupplied, underfunded, and under supported. After a vote on April 21, 1994, by the UN Security Council to withdraw UNAMIR peacekeepers, support decreased even as the situation on the ground became worse. Cables from Dallaire to the UN show the increasing desperation and hopelessness experienced by the force commander and his troops as they attempted to save as many Rwandan lives as they could amidst the deteriorating humanitarian situation. General Dallaire was aware of the political and logistical difficulties of keeping UNAMIR troops in Rwanda, and of the very real danger his troops were in under their current Chapter VI mandate which prohibited them from engaging militarily. On April 17, Dallaire sent a military assessment to New York, stating:

 Maintaining the status quo on manpower under these severe and adverse conditions is wasteful, dangerously casualty-causing and demoralizing to the troops. Either UNAMIR gets changes in its parameter of works in order to get into the thick of things (with more resources), or it starts to thin out in order to avoid unnecessary losses and reduce the overhead and administrative burden to the negotiation process for a ceasefire and peace.

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” Maintaining the status quo on manpower under these severe and adverse conditions is wasteful, dangerously casualty-causing and demoralizing to the troops.”

Dallaire, however, was also cognizant of the danger to Rwandan citizens if the UN withdrew the peacekeepers entirely. On April 20, Dallaire sent a cable explaining his opinion regarding Secretary-General Boutros Boutros-Ghali’s proposed options for UNAMIR, and reminded the UN, “For humanitarian reasons, it would be unethical to leave this terrible scene without at least giving a last hard and determined chance for a cease fire and an embryo of a relief organization in country.”

Two months after the UN had withdrawn the majority of UNAMIR troops, and despite approval in May 1994 of UNAMIR II, which would have enlarged UNAMIR by 5,500 troops on May 17, neither new troops nor supplies had arrived in Rwanda. The troops would not arrive until mid-August. On June 20, Dallaire wrote a frank and desperate cable to the UN, laying out in bare terms his assessment of the situation and his opinion of ongoing UN planning:

Since the passing of Resolution 918 on 17, May 94, UNAMIR has patiently waited for its expansion in order to fan out and help stop these massacres, offer humanitarian security assistance to the hundreds of thousands of displaced Rwandese and be in a viable/effective position to influence and implement a ceasefire. The ineffective reaction to meeting the critical needs of the Mission in order to implement its mandate has been nothing less than scandalous from the word go, and even bordering on the irresponsible to dangerous toward the personnel of the Mission here in theatre. This has directly led to the loss of many more Rwandese lives, [and] to the casualties amongst our troops.

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“This has directly led to the loss of many more Rwandese lives, [and] to the casualties amongst our troops.”

Dallaire continues, “At the moment UNAMIR cannot pursue a Chapter VII mandate and is just holding on militarily (all 8 x BTR 80s are unserviceable now) and basically surviving logistically (we have had no fuel for 3 days).”

General Dallaire usually ended his cables to the UN by politely sending his regards. In this cable, however, the General was so disheartened he ended, “At this point FC finds regards very difficult to express.”

Unfortunately, Dallaire’s hope for UNAMIR was never fulfilled. The genocide did not end until the Tutsi rebel group, the Rwandan Patriotic Front (RPF), toppled the last government-supported extremist Hutu Power stronghold in mid-July and declared the civil war over.

Dallaire later sent his opinion of UN debates in comparison to the situation on-the ground to the UN; “I acknowledge that this mission is a logistical nightmare for your [headquarters], but that is nothing compared to the living hell that has surrounded us…..although many fine words have been pronounced by all, including members of the Security Council, the tangible effort…has been totally and completely ineffective.”[1]

These declassified documents provide insight into the complexities of the international community’s decision-making process during one of the worst genocides of the 20th century. Continued and increased access to these documents is crucial to learning from past mistakes and implementing better preventative policies today and in the future.


[1] Samantha Power, “A Problem From Hell”: America and the Age of Genocide. (New York: Basic Books, 2002), 382.

DOJ Updates FOIA Regulations, Finding “No-Fly” List Status Now Possible, and Much More: FRINFORMSUM 4/16/2015

April 16, 2015
Melanie Pustay's office issued (somewhat surprisingly) good new FOIA regulations for the DOJ.

Melanie Pustay’s office issued (somewhat surprisingly) good new FOIA regulations for the DOJ.

The Department of Justice (DOJ) updated its FOIA regulations last week in response to public comments regarding its 2011 draft FOIA regulations. In 2011 the DOJ proposed changing their regulations to allow some federal agencies to falsely state that no records exist when the requested documents fit within certain guidelines, thereby authorizing agencies to willfully deceive FOIA requesters on a case-by-case basis. The proposed changes spurred serious concerns from the open government community about the necessity and, more importantly, the legality of such a rule change. OIP Director Melanie Pustay responded to the criticisms during a March 2012 Senate Judiciary Committee hearing by saying, “some people misinterpreted what we were trying to do, misconstrued some of the provisions, and didn’t necessarily understand some of the fee guidelines.” The DOJ’s latest regulations, happily, do not contain such provisions, and instead contain improvements, including explicitly stating that news organizations operating solely on the Internet qualify as “representatives of the news media,” making them exempt from search fees.

The DOJ recently submitted documents in a court filing in conjunction with a lawsuit brought by the American Civil Liberties Union (ACLU) that state U.S. citizens and residents can find out if they are on the “no-fly” list, and “possibly” obtain a summary of the reasons why. Prior to this, individuals could appeal to the Department of Homeland Security (DHS) if unable to board a plane, but could not find out their status on the “no-fly” list, a process the case’s judge called “wholly ineffective.” An August 5, 2014, Intercept article, which cites classified government documents concerning the National Counterterrorism Center’s databases, shows, among other things, “that 47,000 people — including 800 Americans — were on the government’s no-fly list, while an additional 16,000 — including 1,200 Americans — were on the ‘selectee’ list.”

Increased attention is being paid to the FBI’s use of non-disclosure agreements to prevent police forces across the U.S. from revealing their use of “Stingray” cell phone tracking technology. According to The Guardian, non-disclosure agreements that have come to light in Florida, New York and Maryland “show federal authorities effectively binding local law enforcement from disclosing any information – even to judges – about the cellphone dragnet technology, its collection capabilities or its existence. In an arrangement that shocked privacy advocates and local defense attorneys, the secret pact also mandates that police notify the FBI to push for the dismissal of cases if technical specifications of the devices are in danger of being revealed in court. The agreement also contains a clause forcing law enforcement to notify the FBI if freedom of information requests are filed by members of the public or the media for such information, ‘in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels’.”

Senate Intelligence Committee chair Sen. Richard Burr (R-NC) has agreed to continue the ongoing review of every U.S. intelligence program begun by the previous chair, Sen. Dianne Feinstein (D-Ca). The review was launched in October 2013 after documents leaked by former National Security Agency (NSA) contractor Edward Snowden revealed the agency was monitoring German Chancellor Angela Merkel’s cellphone, is scheduled to be completed by September 2015, and aims to “improve congressional oversight of the government’s sprawling global spying effort.”

The New York Times recently obtained emails showing the FBI agent that led the investigation into four of the seven Blackwater contractors involved in a 2007 shooting in Baghdad’s Nisour Square, which left 17 people dead, “became convinced that political appointees in the Justice Department were intentionally undermining the case.” The records show that senior DOJ officials initially balked at bringing two machine-gun charges against the contractors, which each “carried mandatory 30-year prison sentences”; prosecutors ultimately only brought one machine-gun charge. The four contractors were sentenced this week; one receiving life in prison and the other three receiving 30-year sentences.

The federal FOIA ombuds, the Office of Government Information Services (OGIS), recently published an assessment of NARA’s Special Access and FOIA Program, which processes FOIA requests for archival federal records in the DC area. OGIS found that NARA takes approximately nine months to process simple FOIA requests (fewer than 200 pages), and approximately 3.5 years to process complex ones (for more than 200 pages and most requests that include classified records). The report also contains a lot of sound recommendations, including encouraging NARA (and other agencies) to “regularly provide links to the most recently posted documents either on its FOIA Electronic Reading Room, or on a webpage that has heavy traffic, so the public is aware of recently released documents,” provide the NARA FOIA team with clear information regarding the status of the agency’s FOIA regulations, and explore “how OGIS might be able to assist with strategies for closing some of the oldest pending cases.” Hopefully NARA will incorporate OGIS’ astute recommendations into their FOIA program, as well as other improvements – like ending the wasteful referral and consultation re-review process..

For those DOJ employees that needed reminding.

For those DOJ employees that needed reminding.

The Justice Department recently sent a memo to all of its employees reminding them never to solicit prostitutes. The memo was sent in the wake of revelations that Drug Enforcement Administration (DEA) officers had “sex parties” with prostitutes hired by a Colombian drug cartel. The memo states, “Regardless of whether prostitution is legal or tolerated in a particular jurisdiction, soliciting prostitutes creates a greater demand for human trafficking victims and a consequent increase in the number of minor and adult persons trafficked into commercial sex slavery.”

The CIA has declassified an additional 99 documents on its plan to publish Doctor Zhivago in Russian for first time in 1958. The CIA declassified 130 documents last April concerning the agency’s instrumental role in publishing and distributing Boris Pasternak’s “Doctor Zhivago” in the Soviet Union in an effort to stir political unrest. One document notes, “[t]his book has great propaganda value, not only for its intrinsic message and thought-provoking nature, but also for the circumstances of its publication: we have the opportunity to make Soviet citizens wonder what is wrong with their government, when a fine literary work by the man acknowledged to be the greatest living Russian writer is not even available in his own country in his own language for his own people to read.”

Declassified documents show that NASA has, since its creation in 1958, been involved in furnishing cover stories for covert operations, monitoring Soviet missile tests, and supplying weather data to the U.S. military. Be sure to check out the latest posting on the Archive’s website for the whole story behind NASA’s secret relationship with civilian and national security space programs.

President Eisenhower and Israel Prime Minister David Ben-Gurion during the latter's visit in March 1960 to the United States. (Source: www.jewishvirtuallibrary.org)

President Eisenhower and Israel Prime Minister David Ben-Gurion during the latter’s visit in March 1960 to the United States. (Source: http://www.jewishvirtuallibrary.org)

The latest posting from the Archive’s Nuclear Vault highlights declassified documents concerning the Eisenhower administration’s discovery of the secret Israeli nuclear program. Documents published in this collection shed light on a particularly notable intelligence failure: how Washington missed warning signs that the Israelis had a nuclear project underway, but also how the U.S. belatedly realized what the Israelis were doing, and how Eisenhower and his senior advisers reacted to this discovery.

This week’s #tbt document pick is chosen with Cuba’s removal from the U.S.’s list of state sponsors of terrorism in mind. It is a collection of documents from 1975 on the origins of “baseball diplomacy.” The documents, ranging from unclassified letters to declassified secret cables and high-level State Department memoranda, reveal the efforts of then-commissioner of baseball, Bowie Kuhn, and his counterparts in Cuba, along with aides to Secretary of State Henry Kissinger, to arrange a game between U.S. and Cuban teams in 1975.

Happy FOIA-ing!

Salvadoran General Deported from U.S. for Command Role in Human Rights Crimes During El Salvador Civil War

April 9, 2015
General Vides Casanova] Credit: Latin America News Dispatch.

General Vides Casanova. Photo Credit: Latin America News Dispatch.

 

Violations Cited in Justice Department Ruling Include Torture of Salvadoran Citizens, Murder of Four American Churchwomen, Among Others

By Alexandra Smith

Thursday, April 9, 2015—Gen. Carlos Eugenio Vides Casanova, former chief of El Salvador’s National Guard and then Minister of Defense from 1979-89, was deported from Florida yesterday as a result of a precedent-setting decision by the Justice Department’s Board of Immigration Appeals, following 16 years of legal efforts by human rights groups against him.

In 1999, The Center for Justice and Accountability filed a case against Vides Casanova and another former defense minister, Gen. José Guillermo García, charging them with liability for the torture of three Salvadoran civilians under the “command responsibility” doctrine illustrating intellectual authorship. The case, Romagoza et al. v. Generals Garcia and Vides Casanova, cemented the legal authority of the command responsibility doctrine with a verdict demanding 54.6 million dollars in reparations from the two defendants.

But the Board of Immigration went well beyond the Romagoza case in finding against Vides Casanova. In its ruling, the Board cited the “totality of the record” as support for deportation, writing that as National Guard commander and then Minister of Defense,

[H]e participated in the acts of torture and extrajudicial killing of civilians in El Salvador, in that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction, he did not hold the perpetrators accountable.

Among the cases cited by the Board were the killing of four American churchwomen in 1980, and the 1981 “Sheraton Hotel” murders targeting a Salvadoran labor leader and two U.S. advisors to an American labor association. Both crimes were carried out by members of the National Guard.

“We have reached a critical juncture in this country. Either the military establishment will cut out the cancer that is destroying it or the democratic forces that have worked to make the [government] a success, and I mean the Christian Democrats, the Venezuelans and ourselves, will find it impossible to go on.”

“We have reached a critical juncture in this country. Either the military establishment will cut out the cancer that is destroying it or the democratic forces that have worked to make the [government] a success, and I mean the Christian Democrats, the Venezuelans and ourselves, will find it impossible to go on.”

Over the years, the National Security Archive has contributed hundreds of declassified U.S. documents to the investigations against Vides Casanova, illustrating the general’s role in human rights violations throughout his tenure as a commander in the Salvadoran military and guard. Among the documents are United States Department of State cables and memoranda concerning the 1980 abduction and murder of the four churchwomen that reveal Vides Casanova’s attempts to cover up the crime. In his dispatches to Washington, Ambassador Robert E. White strongly condemned Vides and other elements within the security forces for their lack of cooperation in the murder investigation.

“[Deleted] Casanova made a strong pitch on the communist danger, the [deleted], and both the FDR killings and the murders of the nuns could not have been the work of the government because they were so obviously counterproductive.”

“[Deleted] Casanova made a strong pitch on the communist danger, the [deleted], and both the FDR killings and the murders of the nuns could not have been the work of the government because they were so obviously counterproductive.”

As a result of the Center for Justice and Accountability’s continuing advocacy, the former general was indicted on two counts of immigration fraud in 2009. Trial hearings included testimony by three U.S. ambassadors, torture victims Pedro Daniel Alvarado and Juan Romagoza Arce, and expert witness Terry Karl, professor of political science at Stanford University, who used National Security Archive documents in her analysis.

The presiding immigration judge found General Vides Casanova to have “assisted or otherwise participated in” human rights crimes including the torture of Daniel Alvarado and Romagoza Arce, the killings of the head of the Salvadoran agrarian reform institute and two American labor advisors, and the killings of the four American churchwomen discussed above.

On March 11, the Board of Immigration Appeals decided to uphold the immigration judge’s decision under the Immigration and Nationality Act. Rather than affirming the defense argument that Vides Casanova could be deported only if determined to have taken “personal action” in facilitating the torture and killing described above, the Board of Immigration Appeals found the defendant guilty, according to Terry Karl, because Vides Casanova “1) had command over his troops, 2) knew or should have known what his subordinates were doing, and 3) failed to prevent egregious acts or punish his subordinates who committed such acts.” Although the defense appealed the Board’s decision, that appeal was denied.

Patty Blum of the Center for Justice and Accountability calls the ruling “very significant” because it marks the first time that the Board of Immigration Appeals has connected the intellectual authorship of human rights crimes with requisite deportation. The precedent-setting ruling will act as a benchmark for future cases, ensuring that those in command during a regime of human rights abuse are themselves seen to have participated in that abuse, and will not find a safe haven in the United States.

A mural depicting the four American churchwomen killed at the command of General Carlos Eugenio Vides Casanova in 1980.

A mural depicting the four American churchwomen killed at the command of General Carlos Eugenio Vides Casanova in 1980.

 

NARA to Host Forum Discussing NDC Prioritization Practices and Declassification Progress, and Much More: FRINFORMSUM 4/9/2015

April 9, 2015
"Study the past" Or " Study the unclassified past"?  Statue on North West of the National Archives.

“Study the past” Or “
Study the unclassified past”? Statue on northwest side of the National Archives.

Last week the Foundation for the National Archives launched an eyebrow raising promotion to celebrate National Poetry Month: selecting archival documents, censoring them, and calling it “redaction poetry.” The promotion understandably ruffled some feathers considering the vast volumes of information held by NARA that remain withheld from public view, or improperly censored by the Archives’ National Declassification Center. National Security Archive FOIA Project Director Nate Jones says declassification poetry might serve a purpose…. as long as it brings attention to the unacceptable problem of overclassification at the U.S. National Archives.

To its credit, this week (Friday April 10 at 10:00 AM) NARA is hosting a forum including the Archivist of the United States, the Director of the National Declassification Center, and other experts (including the NS Archive’s Nate Jones and William Burr) to discuss “NDC prioritization practices and ongoing declassification progress.”  Hopefully this forum will yield tangible reforms to NARA’s declassification process. The forum is open to the public so please take advantage and attend — it’s important to make your thoughts on these issues known to NARA.

The Department of Homeland Security (DHS) is renewing efforts to access a national license plate tracking system just a year after scrapping its initial plan to build a similar system to catch fugitive illegal immigrants. Last year’s efforts were terminated after the Washington Post reported the program could “contain more than 1 billion records and could be shared with other law enforcement agencies, raising concerns that the movements of ordinary citizens who are under no criminal suspicion could be scrutinized.” The national license plate tracking plan was recently reintroduced, however, after the DHS completed a privacy impact assessment and determined not to build its own database or add data to an existing database. “Instead, it is seeking bids from companies that already gather the data to say how much they would charge to grant access to law enforcement officers”.

DHS recently told Congress in a written response to a Congressional query that it is “working on increasing its human intelligence-gathering capabilities at home and anticipates increasing its field collector/reporter personnel by 50 percent, from 19 to approximately 30, during the coming year.” The information comes after Rep. Paul C. Broun (R-GA) asked if the agency had enough HUMINT capabilities domestically and overseas “to counter the threats posed by state and non-state actors alike?”

New details are emerging about the Drug Enforcement Administration’s harvesting of Americans’ overseas calls (just a reminder, the DEA has also “initiated a massive national license plate reader program” that connects DEA license plate readers with local law enforcement agencies’ own plate readers around the country).  It was reported in January that the DEA maintained a database of Americans’ outbound overseas call records, even if the callers were not involved in any criminal activity, for over a decade. New reports show the program lasted two decades and amassed billions of Americans’ calls – “virtually all” overseas calls – to as many as 116 other countries. The program wasn’t suspended until 2013.

Building a Bridge

Building a Bridge

The Office of Government Information Services (OGIS), the federal FOIA ombuds, just released its FY2014 report, “Building a Bridge between FOIA Requesters and Federal Agencies”. OGIS notes that its two key accomplishments for FY2014 were “establishing a new team to review agency Freedom of Information Act (FOIA) policies, procedures, and compliance, and establishing a new FOIA Advisory Committee”. The report highlights OGIS’ FOIA agency assessment program—including its report on NARA’s Special Access and FOIA program – as projects to keep an eye on.

The State Department claimed in a recent U.S. District Court filing that the agency is facing a surge in FOIA lawsuits, thanks to both processing delays and the Hillary Clinton email scandal. The filing noted “a 60% jump in such suits in the last fiscal year and are on pace for a 93% increase this year”. At the time of the filing there were 73 FOIA lawsuits pending against the State Department, compared to 29 in the six previous months. The State Department employs about 100 people to conduct-line-by-line reviews of documents found responsive to FOIA requests, “along with several dozen more staffers to assign the requests, handle litigation matters and work on closing out long-pending cases.”

Common supplements containing dangerous chemical studied, but not publicized, by the FDA. Photo: The New York Times.

Common supplements containing dangerous chemical studied, but not publicized, by the FDA. Photo: The New York Times.

A new private study led by Harvard’s Dr. Pieter A. Cohen warns of the dangers of a chemical found in common weight loss and workout supplements that were studied and documented – but not made public – by the FDA. The chemical, BMPEA, is “nearly identical to amphetamine” and has already been yanked off the shelves in Canada for the health risks it poses. The FDA found nine supplements available in the U.S. contained the chemical but failed to release the names of the supplements. Health experts say such inaction is symptomatic of a larger problem within the FDA, “The agency is not effectively policing the $33 billion-a-year supplements industry in part because top agency regulators themselves come from the industry and have conflicts of interest.”

The Obama administration is considering creating “fusion cells” comprised of officers from the FBI, the Defense Department, the State Department and the intelligence community to better address overseas hostage situations. The proposal is one of several options the administration is reviewing to improve response to hostage crises, which has been criticized as bewildering and disjointed.

The FBI is requiring agents to pass a fitness test for the first time in 16 years. The change is a response to concerns that stress put on agents after 9/11 have negatively impacted agents’ performance “and given them less time for fitness.” Agents have until October to take the test, which is “not nearly” as grueling as “for military commandos or hostage rescue-team members.”

Once again the Defense Department has denied an archival document whose substance can be found in the State Department’s historical series Foreign Relations of the United States. The role played by the National Archives in this episode raises troubling questions about the relationship between the National Declassification Center and the agencies in the archival declassification process. As Archivist William Burr notes, “This is regrettable because such decisions run against the grain of the worthy NARA staffers who are trying to make a complex and out-of-date declassification system work.”

Plane "probably being used for drug runs into the U.S."

Plane “probably being used for drug runs into the U.S.”

In 1996 San Jose Mercury News reporter Gary Webb published an explosive three-part series, “The Dark Alliance”, on the connection between the genesis of the crack cocaine epidemic in California and across the U.S., to the contras, the CIA-run and Reagan-backed guerrilla army operating out of Nicaragua. A recent Unredacted blog highlights the Archive’s 1998 posting of a collection of declassified documents obtained through the FOIA concerning the meat of Webb’s reporting: that there was official U.S. knowledge of, and collusion with, known drug traffickers connected to the contras.

The National Security Archive and the U.S. Holocaust Memorial Museum recently published the proceedings, documents and rapporteur’s report from the critical oral history conference that Foreign Policy magazine called “an unprecedented 2014 gathering of former Rwandan officials and international policymakers who managed the response to the world’s worst mass murder since the Holocaust.” The new documentation draws attention to flaws in international decision-making that continue to hamper the effective prevention of and response to mass atrocity today.

This week’s #tbt pick is chosen with the 21st anniversary of the Rwandan genocide in mind, and is the January 11, 1994, cable from the UN commander of peacekeeping forces in Rwanda, General Romeo Dallaire, to his supervisors in New York, now known as the “genocide fax.” In reply to the fax, UN officials rejected Dallaire’s request for authority to raid suspected arms caches, and instructed him instead to consult with government leaders tied to the Interahamwe, a pro-regime militia group. It was one of several turning points when the United Nations, backed by the United States and other powers, failed to take action that might have prevented the genocide.

 

 

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