FRINFORMSUM 4/24/2014: Courts Order the DOJ and CIA to Disclose Key National Security Docs and Demand Investigation into Potential FBI Misconduct in 9/11 Trial, and Much More.
A three judge federal appeals panel unanimously ordered the Justice Department to review its memo providing the legal justification for the targeted killing of American citizen, Anwar al-Awlaki, for declassification this week. The ruling, which stems from a FOIA lawsuit brought by the New York Times and the American Civil Liberties Union, argued that “[w]hatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.” As Archive FOIA Coordinator Nate Jones notes, the ruling will make it easier for FOIA requesters to fight Glomar and b(5) denials, and it will be more difficult for the Department of Justice to withhold its Office of Legal Counsel opinions in the future. However, “[t]he Obama administration had the opportunity to release this important binding legal justification itself –two and a half years ago. Instead, leaks, and ultimately the Second Circuit Court filled the void between the Obama administration’s Open Government pledges and its Secret Government reality.”
Just Security’s Steve Vladeck argued that the Second Circuit Court’s ruling, which hinged on the selective disclosure of the DOJ White Paper, “will disincentivize any disclosure of secret legal rationales” and give this and future administrations good reason to reveal as little as possible about any programs they wish to cloak with FOIA exemptions. Emptywheel’s Marcy Wheeler has argued, however, that selective disclosure is “false transparency” that “serves as a release valve that allows the Executive to dodge any accountability, particularly in courts. So losing it — losing the release valve that permits President after President to string out any inquiry into these gross expansions of power — would be a good thing.”
The military judge presiding over the USS Cole bombing case has ordered the CIA to disclose details of its “black site” prisons to defense attorneys. Rejecting the government’s argument that the defense team does not have the authority to “double check the government’s work,” judge James C. Pohl instructed government prosecutors to provide “nine categories of closely guarded classified CIA information to the [defense] lawyers –including the names of agents, interrogators and names of medical personnel who worked at the so-called black sites.” The order comes while the CIA is fighting the release of the Senate Intelligence Committee’s report on its torture program, which includes details of its “black site” operations.
Judge Pohl is also presiding over the trial of five Guantanamo Bay prisoners charged in the 9/11 attacks, which is currently on hold after Pohl ordered an investigation into the FBI’s alleged attempt to turn a member of the defense team into a bureau informant. The FBI filed legal documents this week stating that the bureau was not, at the very least, contacting the defense team in order to explore “the disclosure a 36-page manifesto of alleged Sept. 11 mastermind Khalid Sheikh Mohammed” to the Huffington Post earlier this year.
Yet another court case involving the FBI alleges that the bureau used no-fly list threats to coerce individuals to act as bureau informants in a “practice that borders on extortion.” Lawyers for Awais Sajjad, a legal permanent US resident, allege Sajjad was told by the FBI after learning he was on the no-fly list in 2012 that the bureau could secure him US citizenship if he agreed to spy on his local Muslim community in New York, reminding him the FBI “also had the power to decide who was on the no-fly list” while doing so.
A new intelligence directive bars most intelligence community employees from discussing “intelligence-related information” –classified or not– with members of the press. The directive, issued this March and first revealed publicly by Secrecy News’ Steven Aftergood this week, “does not distinguish between classified and unclassified intelligence information,” and states that if an employee’s contact with the media involves any unauthorized disclosure of classified information, the employee is potentially subject to criminal prosecution. The directive’s definition of “media” in this case is, unsurprisingly, expansive. According to Jack Shafer, who covers media news for Reuters, the directive “increases the insularity of the national security state, making the public less safe, not more. Until this directive was issued, intelligence community employees could provide subtext and context for the stories produced by the national security press without breaking the law. Starting now, every news story about the national security establishment that rates disfavor with the national security establishment — no matter how innocuous — will rate a full-bore investigation of sources by authorities.”
The Inspector General for the Director of National Intelligence reported that federal agencies are inconsistent in reporting crimes divulged by potential employees during polygraph tests. The report attributed the inconsistencies, which occurred while testing at least 3 percent of personnel between 2009 and 2012, to “breakdowns in government reporting procedures and poor advice from agency lawyers.” Currently, 5.1 million Americans are eligible for security clearances (which includes individuals that may be determined eligible for clearance due to the sensitivity of their positions and the potential need for immediate access to classified information, but may not have actual clearance until the need arises), with 3.1 million actively holding clearances.
POLITICO used the FOIA to obtain a 2012 letter from President George W. Bush to the National Archives and Records Administration that “could result in many of his official records becoming public faster than those of his predecessor, President Bill Clinton.” While his presidency was notorious for its secrecy, Bush’s letter establishes nine categories of documents cleared for release to the public, including “talking points on policy decisions, scheduling files and recommendations about whether to sign legislation.”
Newly declassified documents posted by the National Security Archive this week show Henry Kissinger played a highly influential -albeit slightly reluctant- role in establishing the Nuclear Suppliers Group (NSG) in the mid-1970s. According to the declassified documents, Kissinger was motivated equally by concern about nuclear proliferation and a desire to keep US officials from “charging around the world, like Don Quixote.”
Finally this week, our #tbt document pick is a December 2, 2002, memo on “Counter-Resistance Techniques” written by the Defense Department’s General Counsel, William J. Haynes II, and later approved by Secretary of Defense Rumsfeld. It sets out specific techniques for interrogation that could be used on detainees at Guantanamo. Rumsfeld’s handwritten note on the memo adds a caveat to his approval, asking “[h]owever, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” This document, along with 21 others, was published by the Archive in 2004. The Department of Defense is still processing the National Security Archive’s FOIA request for the complete set of Rumsfeld “snowflakes.”