FRINFORMSUM 5/22/2014: Court Allows CIA to Keep Bay of Pigs History Secret, Videos of Force-Feedings at Guantanamo, USA Freedom Act “Gutted,” and Much More.
In a split ruling that exposes the gap between Obama’s transparency promises and actual bureaucratic (and judicial) behavior, the US Court of Appeals for the DC Circuit ruled this week that the final 30-year-old volume of the CIA’s draft “official history” of the Bay of Pigs invasion could be withheld from the public under the b-5 “deliberative process” exemption, even though four of the five volumes have previously been released with no harm either to national security or any government deliberation. The National Security Archive’s Cuba project director, Peter Kornbluh, requested all five volumes through the FOIA on the 50th anniversary of the Bay of Pigs invasion in 2011, eventually filing suit for the fifth and final volume in 2012. Prior to this week’s decision, the Obama administration bragged that reducing the government’s invocation of the b-5 exemption was proof of the impact of the President’s Day One commitment to a “presumption of disclosure.” Instead, the bureaucracy has actually increased its use of the b-5 exemption in the last two years, which current White House counselor John Podesta once characterized as the “withhold if you want to” exemption.
The Department of Defense recently admitted it has video recordings of force-feeding Guantanamo Bay detainees. The news comes at the same time detainees are accusing the US of manipulating data on inmates’ hunger strikes, including how many times inmates are subjected to force feedings to keep strike numbers artificially low. A lawyer for one of the detainees, Abi Wa’el Dhiab, submitted court filings to preserve the force-feeding tapes, in large part because in 2005 “the CIA destroyed nearly 100 videotapes of interrogations of detainees in its custody.” The court ordered the government to turn over the 34 videotapes yesterday.
The Obama administration delivered a nine-page unclassified report to Congress last week expressing confidence that “if Guantánamo Bay detainees were relocated to a prison inside the United States, it is unlikely that a court would order their release onto domestic soil.” Congress requested the report in last year’s National Defense Authorization Act after it prohibited the president’s previous plan to send detainees “too difficult to prosecute but too dangerous to release” to high-security prisons in Standish, Mich., or Thomson, Ill.
President José Mujica of Uruguay said his country would accept six Guantanamo detainees –those “cleared for release but can’t return to their nations, either because of war, fear of torture or security concerns about their home countries”– with the caveat that the US must accept his offer before he leaves office early next year. Mujica, who spent thirteen years in prison during the ‘60s and ‘70s for guerilla activities against Uruguay’s military dictatorship, said “the prisoners will be considered normal refugees, and that his government does not intend to monitor them.”
According to documents leaked by former contractor Edward Snowden, the National Security Agency (NSA) is “secretly intercepting, recording, and archiving the audio of virtually every cell phone conversation on the island nation of the Bahamas.” The surveillance is part of the NSA’s SOMALGET program, a subsection of its MYSTIC program, and was implemented without the knowledge of the Bahamian government. SOMALGET records, stores, and can replay the “full-take audio” of every phone call made to, from, or within the island for up to a month. According to a Department of State crime and safety report published last year, “[t]he Bahamas is a stable democracy that shares democratic principles, personal freedoms, and rule of law with the United States There is little to no threat facing Americans from domestic (Bahamian) terrorism, war, or civil unrest.”
Language in the finalized USA Freedom Act, poised to be voted on in the House shortly, would require the government to “promptly” purge phone records that don’t contain any foreign intelligence information. The previous language required the government to destroy such information after five years. Several other changes to the bill, however, have cost it the support of many privacy advocates and civil libertarians, who say the bill has been “gutted,” particularly by “the Intelligence Committee, who supported the NSA phone records program.” Technology companies, including Facebook, Google, Apple, Microsoft, and Yahoo, have also pulled their support from the bill, saying the legislation “moved in the wrong direction” after House Republicans privately negotiated with President Obama’s administration “to alter the legislation.”
The Obama administration announced that the CIA is no longer using immunization programs as a front for spying. The announcement was delivered to a group of American health educators three years after the CIA fronted a fake hepatitis vaccination program in Pakistan in a failed attempt to nab Osama bin Laden. “Dozens of public health workers in Pakistan have been killed, with militant groups sometimes announcing that the workers had been suspected of being spies,” since the CIA program first became public.
The US charged members of Unit 61398, China’s cyberwarfare unit, with economic espionage in a move that signifies the administration’s belief “that there is a major difference between spying for national security purposes” and for-profit espionage. The indictment, released by Attorney General Eric Holder, “included allegations that Unit 61398 had stolen trade secrets for nuclear power plants that would save Chinese firms years of design work, as well as information from inside an American solar energy company that was pursuing a trade complaint against its Chinese competitors.” The timing of the indictment is somewhat curious, given documents recently leaked by Snowden reveal that the NSA spied on Brazil’s oil giant, Petrobras, and hacked into the computer systems of China Telecom.
The Justice Department will release the secret 2011 memo justifying drone strikes against American citizens in a “matter of weeks.” The announcement was made “on the eve of a Senate vote on President Obama’s nomination of David J. Barron, one of the memo’s authors, to a federal appeals court judgeship” after liberal and conservative senators promised to fight his nomination if the memo wasn’t made public. This announcement comes two and a half years after the Department of Justice Office of Legal Counsel told the National Security Archive that it “neither confirms nor denies the existence of” the memorandum authorizing the lethal targeting of Anwar al-Awlaki, and the Second Circuit Court of Appeals’ unanimous rejection of the DOJ’s claims for refusing to review the memo for release to the New York Times and the American Civil Liberties Union.
Sen. John McCain (R-AZ) plans to introduce language into the Senate Armed Services Committee’s version of the 2015 National Defense Authorization Act that would give the Defense Department control over the drone program, currently controlled by the CIA, arguing that the move would increase transparency. In response to the news, Senate Intelligence Committee chairwoman Dianne Feinstein (D-CA) said, “[t]he intelligence people are really experts at [drone strikes]. The military really isn’t.”
For the seventh posting in our joint effort to mark the 20th anniversary of the Rwandan genocide, Archivist Emily Willard examines the failure of the Arusha Peace Accords and chronicles the international community’s role in the failure to implement the demobilization program, a key part of the Accords, ultimately leading to genocide in April 1994. Read Willard’s analysis and the newly posted documents here.
Finally, in light of the DC Circuit Court of Appeals’ decision to sanction the CIA’s refusal to disclose the fifth volume of its five-volume official history of the Bay of Pigs invasion, this week’s #tbt document pick is a 2011 posting on the first four volumes of that official history. In 2011, the National Security Archive’s Cuba project director, Peter Kornbluh, posted some of the biggest revelations from the first four volumes, released to the Archive in response to a FOIA request that year, including episodes of CIA “friendly fire” during the invasion, a discussion of using napalm bombs against the Castro regime, a plot to involve the Mafia in an attempt to assassinate Castro, and much more. Check out the first four volumes of the Bay of Pigs history on the Archive’s website.