FRINFORMSUM 7/18/2013: The Fallout Continues
Fallout continues this week in the wake of Edward Snowden’s NSA surveillance leaks. These include a growing number of lawsuits brought against the government, including one by a former Justice Department attorney to the tune of $23 billion for damages, Russia is planning to revert to using typewriters for certain communications to avoid NSA spying, and a recent Defense Intelligence Agency solicitation implies the intelligence community is backing away from creating a common technology to promote information sharing, an idea that generated enthusiasm both in the intelligence and open government communities.
It is unclear what responses will be to the former NSA contractor’s applications for asylum, and comparisons between Snowden and Michel Christopher Meili, a Swiss citizen granted asylum by the US in 1997, don’t make things any clearer. Meili was an employee of the Union Bank of Switzerland who came across two carts of Holocaust-era banking documents belonging to the bank’s Jewish clients and intended for destruction. Rather than letting them be destroyed, Meili violated Swiss law and disclosed them to an outside source. In response to the Swiss government’s hounding of Meili, the US Congress passed a special law, noting that Meili was “interrogated by the local Swiss authorities who tried to intimidate him by threatening prosecution for his heroic actions,” granting he and his immediate family permanent residency in the United States “[n]otwithstanding any other provision of law.” The US’ actions towards the Swiss refugee could provide a model for Venezuela, Nicaragua, or any other country in granting Snowden asylum simply by making him a “special case.”
Despite veneration of Meili’s actions in the 1990s, it is unlikely that Congress will view Snowden in the same light, especially considering the recently released November 2012 National Insider Threat Policy equates leakers with spies and terrorists. While tensions are high now, it’s worth noting that prior to the leaks, both the Department of Defense and the Department of Energy responded to a presidential directive on “protecting whistleblowers with access to classified information” by producing policies that would generally prohibit retaliation against such whistleblowers. Time will tell.
Also this week, the Foreign Intelligence Surveillance Court (FISA), which gave the legal ‘OK’ for the NSA surveillance practices, sided with Yahoo in a small legal victory for the internet corporation. Yahoo argued, and won, that the Justice Department must release and declassify the FISA court opinion proving Yahoo’s 2008 opposition to cooperating with the NSA’s PRISM program—unlike Microsoft, which went out of its way to help the NSA bypass encrypted data on its Outlook.com portal “before the product was even launched to the public.”
The Historical Advisory Committee to the Department of State (HAC) released a report assessing both improvements in publishing the Foreign Relations of the United States (FRUS) series by the Office of the Historian (HO), and the pitfalls of NARA’s declassification process. The report concludes with mixed results, noting that while it will remain difficult, if not impossible, for the HO to publish its FRUS series documenting events within 30-years of their occurrence as mandated by law, HO has made robust and encouraging progress and the office continues to increase the number of publications it releases.
However, HAC was less encouraged by the declassification and release of State Department records by NARA. Executive Order 13526 mandates the “declassification of records over 25-years old-unless valid and compelling reasons can be specified for not releasing them.” The HAC report noted that “[t]he review, transfer, and processing of records are falling further behind the timeline needed to meet their targets, and the leadership of the National Archives and Records Administration (NARA) does not manifest the sense of urgency required to reverse this trend.” The report soberly concludes that NARA “currently lacks a plan, the backlog is growing, it is woefully understaffed, and its morale is the lowest of any government department or agency. NARA’s leadership must act now. The fiscal environment is not improving, and the volume of federal records to review, transfer, and process is exploding.”
While NARA has some tough declassification decisions ahead, NATO and its members deserve credit for declassifying the Cold War historical retrospectives of the Supreme Headquarters Allied Powers Europe (SHAPE) and posting them online. The histories document SHAPE’s origins and activities as it emerged “as a consolidated command structure opposing the Communist alliance forming during the Cold War.” Under Dwight Eisenhower’s role as the Supreme Allied Commander, SHAPE historians began to research and draft these classified histories in 1951, “drawing on the wide range of Top Secret and Secret documents that had been collected and preserved by the SHAPE Historical Office and SHAPE Central Records Office.”
Ending on a positive note, Jason “FOIA Terrorist” Leopold shared his transparency-compelling tips in a recent interview with Muckrock News. The interview provided excellent advice for novice and experienced requesters alike, and included praise for both our blog, Unredacted, and the Archive’s online guide to filing FOIAs and MDRs, Effective FOIA Requesting for Everyone, which Jason calls “the single best tool I have discovered about the process.” The praise is much appreciated, though Jason is right – the best way to learn is to file FOIA requests for yourself, and these days there’s plenty in the news that’s FOIA-worthy.