50 Open Government Groups Support FOIA Legislation that Addresses “Wildly Misused” Exemption, Drone Memo Release, Report that Drone Usage is a “Slippery Slope” to Perpetual War, and Much More; FRINFORMSUM 6/26/2014.
Senators John Cornyn (R-TX) and Patrick Leahy (D-VT) have introduced legislation that has the potential to be “the most significant” FOIA reform in four decades. The legislation, the FOIA Improvement Act of 2014, would mandate a 25-year sunset for the “wildly misused” (b)(5) “withhold it because you want to” FOIA exemption –an exemption that currently has no time limit and has recently been used to deny everything from a CIA draft history of the 53-year-old Bay of Pigs invasion to names of VA hospitals where veterans died due to delays in medical screenings–, would address fee problems, and would include a higher bar for documents covered under the attorney-client relationship. There is extremely widespread support for the Senate bill, with 50 open government groups, including the National Security Archive, collectively voicing their endorsement of the FOIA Improvement Act.
For these much-needed FOIA reforms to be felt, the Senate bill must be signed into law. Fortunately, FOIA reform legislation already unanimously passed the House this February, thanks to leadership of Representatives Darrell Issa (R-CA), Elijah Cummings (D-MD), and Mike Quigley (D-IL), and now may be the best chance for FOIA bills passed in the House and Senate to be reconciled in conference and become law. As Archive FOIA Coordinator Nate Jones eloquently said, ‘The National Security Archive strongly supports the Senate and House bills, and is deeply impressed that Representatives and Senators Issa, Cummings, Quigley, Leahy, and Cornyn realized the importance of substantive FOIA reform and worked together to improve the law so that –among other improvements– agencies will no longer be able to withhold information –Department diversity studies, histories of the Bay of Pigs invasion, or abuses at Veterans Affairs– merely “because they want to.”’
Senator Ron Wyden (D-OR) expressed frustration on the floor of the Senate earlier this month with the new Intelligence Community directive that bars employees from having any contact with the media about intelligence issues. Wyden said the directive “is so broad it could cover unclassified information. It does not lay out any limits on this extraordinarily broad term that I have described. My hope is we can get this corrected because I think it is going to have a chilling effect on intelligence professionals who simply want to talk about unclassified matters on important national security issues– such as how to reform domestic surveillance or whether our country should go to war.”
The House approved legislation by a vote of 293-123 last week to “bar warrantless collection of personal online information and prohibit access for the NSA and CIA into commercial tech products.” The provision is part of the $570 billion defense spending bill, and also makes it harder for the Obama administration to fulfill its promise to close Guantanamo Bay. The roadblocks to closing Guantanamo included in the provision were likely due to the administration’s failure to notify Congress of the exchange of five Taliban prisoners held at Guantanamo for Army Sgt. Bowe Bergdahl, and now bars 85 per cent of funds for overseas conflicts until Defense Secretary Hagel “reassures Congress that congressional notification on Guantanamo transfers will be respected.”
Representative Rush Holt (D-NJ) earmarked $2 million in the Defense Appropriations bill for investigating whistleblower complaints in the intelligence community, which was approved by the House on June 18. Holt said the amendment “will ensure that they have resources to respond to legitimate concerns.”
A federal appeals court released portions of a July 2010 Department of Justice memo that provided the legal authorization to target American citizen Anwar al-Awlaki in a lethal drone strike this week. The memo, authored by David Barron, then the acting head of the DOJ’s Office of Legal Counsel (OLC), was released thanks to a FOIA lawsuit brought by the New York Times and the American Civil Liberties Union. The Obama administration was pressured to release the memo by Senators, who threatened to block Mr. Barron’s recent nomination to a federal appeals court in Boston if the administration failed to release the memo. The memo cites, among other things, “public authorities justification,” which are actions that governments take in emergency situations that would otherwise break the law, as legal precedent for targeting al-Awlaki. The memo also discloses that the CIA has an official operational role in the strikes, and that there are additional OLC memos related to targeted killings that will likely be partially released as well.
A new report conducted by a distinguished panel of former senior intelligence and military officials and released by the Stimson Center warns that the Obama administration’s use of lethal drone strikes places the US on a “slippery slope” into perpetual war and establishes a dangerous precedent for other nations. The report is neither wholly critical or laudatory of armed drones, indicating that there is no evidence that using drones creates a “PlayStation mentality” when it comes to killing, and reports that because drone pilots see their targets destroyed on high resolution screens, they are more likely to suffer post-traumatic stress than their counterparts manning aircraft. The report, however, is sharply critical of both the Obama and the Bush administrations for paying too little thought “to what consequences might be spawned by this new way of waging war.”
The CIA has completed its review of the 500-page executive summary of the Senate Intelligence Committee’s 6,800-page torture report, which the Committee voted to make public in April. The contentious report accuses the CIA of misleading the Senate about its detention program, “concealing details about the severity of its methods, overstating the significance of plots and prisoners, and taking credit for critical pieces of intelligence that detainees had in fact surrendered before they were subjected to harsh techniques.” The report is now being sent to the White House, and Senate Intelligence Committee chairwoman Sen. Dianne Feinstein (D-CA) expects the committee will receive it “sometime during the summer” for declassification.
The internal affairs division of the Customs and Border Patrol (CBP) is being investigated for a slew of “So many allegations of wrongdoing involving the [CBP] internal affairs division you’d need a flow chart to sort them all out.” This comes on the heels of both a McClatchy report that “found that at least 21 civilians have been fatally shot by Border Patrol agents in the past four years,” and a recent report by the American Immigration Council that found, thanks to a FOIA request, that complaints against Border Patrol agents and CBP “have more than doubled in size in the last seven years.”
The Archive has already submitted a FOIA request to the CIA regarding a recent Washington Post article that revealed the agency had plans to make a scary Osama bin Laden doll, codenamed “Devil Eyes,” and to distribute them in Afghanistan or Pakistan. The face of the doll, designed to frighten children, was painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings.” The doll is part of the CIA’s long history of “influence operations,” which include publishing and distributing Boris Pasternak’s “Doctor Zhivago” in the Soviet Union in 1958 in an effort to stir political unrest, and was carried out with the aid of former Hasbro executive and toymaker Donald Levine.
The FOIA Advisory Committee had its inaugural meeting this week. Made up of 10 government officials and 10 non-governmental FOIA experts, including Archive FOIA Coordinator Nate Jones, the Committee discussed ways to improve the FOIA. Jones “suggested reviewing FOIA lawsuits to determine whether there are cases that need not be litigated. He also suggested a pre-litigation program within agencies to have closer scrutiny of whether the Government will defend an agency in litigation.” The Committee designated fee waivers and how to reduce “fee animosity” between requesters and agencies as a top priority.
As the US mulls what action to take in Iraq in the midst of rising sectarian violence, this week’s #tbt document pick is an October 31, 1998, statement by President Bill Clinton. The statement accompanied his signing of the Iraq Liberation Act, making the overthrow of Iraq’s government U.S. policy, and indicates that the US would give Iraqi opposition groups $8 million to assist them in unifying, cooperating, and articulating their message. For more information and declassified documents on the Iraq War and the lead-up to it, visit the National Security Archive.