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FRINFORMSUM 8/9/2013: NSA Revelations Might Play a Part in Upcoming German Elections, NSC Records Still Not Subject to the FOIA, and More

August 9, 2013

International fallout from Edward Snowden’s revelations of NSA surveillance methods continues this week, and might play a role in Germany’s upcoming elections. The German newspaper Der Spiegel reports that the NSA leaks demonstrate that German intelligence “sends massive amounts of intercepted data to the NSA,” and that “center-left Social Democrats have made the Snowden revelations an issue in Germany’s upcoming parliamentary election.” The Germans aren’t the only ones facing questions after the NSA leaks, as The Guardian reports that the NSA secretly paid £100m over three years for leverage with the British intelligence agency, GCHQ. The report indicates that GCHQ is expected to ‘pull its weight’ for Americans in return for the money, and that the NSA saw the less-stringent regulation of British spies as ‘a selling point’ for collaboration.

President Reagan and General Secretary Andropov were named "men of the year" in 1983 by the Time Magazine. The Central Intelligence Agency also included an image of this cover in its history of the 1983 War Scare - the reason behind the Queen's impassioned speech. (Original cover © Time, Inc.)

President Reagan and General Secretary Andropov were named “men of the year” in 1983 by the Time Magazine. The Central Intelligence Agency also included an image of this cover in its history of the 1983 War Scare – the reason behind the Queen’s impassioned speech. (Original cover © Time, Inc.)

Close military and intelligence coordination between Britain and the United States is nothing new. In 1983 Queen Elizabeth’s civil servants prepared a rousing speech for their monarch to deliver to her subjects on the eve of nuclear war with the Soviet Union, imploring them to tap into their famed British resolve that carried the country through two world wars in just four decades. The speech –recently disclosed by the British National Archives– was drawn up as part of a secret exercise to test Britain’s response to increasing tensions between the United States and the Soviets as the US conducted its Able Archer war game. It’s debatable how close the world came to nuclear war in the fall of 1983, but the Archive has the largest collection of primary sources on “the last paroxysm” of the Cold War to help history decide.

The Department of Defense’s Office of the Inspector General has released its latest list of upcoming and recently released inspector general reports. Among the upcoming reports are audits that analyze “whether the performance of the V-22 aircraft meets mission capability rate requirements,” and determine “the impact to the Defense Intelligence Enterprise’s long-term intelligence analysis capability.” Among the recently released IG reports is an audit of the Military Criminal Investigative Organizations sexual assault investigations for 2010. The audit found that “[e]leven percent of the cases had significant deficiencies and were returned to the MCIOs for corrective action, where practicable.”

The House Judiciary Committee released a report on the Department of Justice’s investigations into leaks of classified material to the press. Matthew Aid has a helpful summation of the 70-page report’s major findings, which include determining that Attorney General Holder gave deceptive and misleading testimony before the Committee, and that the DOJ inappropriately interpreted the Privacy Protection Act to obtain a search warrant for a Fox News reporter.

A federal court rejected a bid seeking to restore access to National Security Council records under the FOIA. That the NSC remains outside of the bounds of FOIA means, among other things, that requesters cannot access information regarding US officials’ decisions to employ drones “to kill people, including US citizens, outside of recognized battlefields and without judicial process.” The Department of Justice argued that requiring the NSC to respond to FOIA requests would intrude “on the President’s fulfillment of his core constitutional functions with the assistance of his closest advisors,” and that his advisors would temper their advice for fear of political reprisal. U.S. District Court Judge Eric Vitaliano agreed, and said “he saw no reason to depart from a 1996 D.C. Circuit ruling that found files beyond the reach of FOIA on the grounds that the NSC’s primary role is to advise the president.” As presidential records, the public can currently access NSC documents without the FOIA –though it might take between five and twelve years after the president leaves office.

The Department of Justice is currently investigating the Drug Enforcement Agency’s surveillance tactics after news broke earlier this week that the DEA’s Special Operative Division was directing its agents to “recreate” their sources for criminal investigations into American citizens “to conceal its true origin from defence lawyers, prosecutors and judges.” One of the major concerns with the DEA’s tactics is that it “violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.”

An increasingly good bet to avoid federal scrutiny in the first place might just be to steer clear of social media sites, as the Department of Defense is reportedly investigating social media data mining tools for special operations projects. U.S. Special Operations Command (SOCOM) performed experiments over the last year to this effect, and Steven Aftergood notes a SOCOM after-action report stated that the experiment “was successful in identifying strategies and techniques for exploiting open sources of information, particularly social media, in support of a counter threat finance mission.” However, Southern Command has said they cannot “confirm the validity of any of the information listed in the After Action Report.”

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