Alaskans Trained as “Stay-Behind” Agents in Case of Invasion, DOJ Considers Invoking State Secrets Privilege in Private Defamation Lawsuit, and Much More: FRINFORMSUM 9/5/2014
Government Attic recently posted hundreds of pages of newly-declassified documents on a highly classified project, code-named “Washtub,” detailing US efforts in the 1950s to recruit and train “fishermen, bush pilots, trappers and other private citizens across Alaska for a covert network to feed wartime intelligence to the military.” The documents, released thanks to a FOIA request, reveal the “secret plan was to have citizen-agents in key locations in Alaska ready to hide from the [Soviet] invaders of what was then only a U.S. territory. The citizen-agents would find their way to survival caches of food, cold-weather gear, message-coding material and radios. In hiding they would transmit word of enemy movements.” While the feared invasion never took place, the Air Force Office of Special Investigations trained 89 “stay-behind agents,” all of whom received extensive training in coding and decoding techniques, though it was noted that it was impossible training for the “backwoodsmen to master in 15 hours.” The documents also note that “Eskimo, Indian and Aleut groups in the Territory should be avoided in view of their propensities to drink to excess and their fundamental indifference to constituted governments and political philosophies. It is pointed out that their prime concern is with survival and their allegiance would easily shift to any power in control.”
The Department of Justice (DOJ) is mulling whether or not to invoke the state secrets privilege in a private defamation lawsuit against United Against Nuclear Iran, a group that consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” The group is currently being sued by Greek shipping mogul Victor Restis after the group accused him of violating sanctions by exporting oil from Iran. The DOJ has already fought to shield the group’s files, including its donor list, during the proceedings, and argued earlier this year that “the material in question could be protected under a privilege designed to prevent the public release of law enforcement techniques, confidential sources, undercover operatives and active investigations.” The government has until September 12 to decide if it will invoke the state secrets privilege.
The 2nd US Circuit Court of Appeals heard arguments earlier this week on the constitutionality of the government’s bulk phone records collection program. The case, brought by the American Civil Liberties Union (ACLU), brings the issue of bulk records collection before a federal appeals court for the first time, and concerns whether aspects of the government’s post-9/11 counterterrorism program – specifically the National Security Agency’s (NSA) daily vacuuming up of millions of phone records – violates the Fourth Amendment and Section 215 of the Patriot Act. The government has justified the bulk records collection by citing Section 215, which “requires that records sought be ‘relevant’ to an authorized investigation,” though lawyers for the ACLU have expressed doubt that all of a phone company’s customer call records could possibly be “relevant” to an investigation, arguing instead they are a convenience. The three judge panel also expressed concerns that the same arguments used to justify the collection of bulk phone records could also be applied to credit card and bank records.
The 2nd US Circuit Court of Appeals also ruled this week that photos of Mohammed al-Qahtani, a Saudi national currently being held at Guantanamo who US officials said “intended” to be the 20th 9/11 hijacker, may remain classified. Al-Qahtani was “subject to interrogation techniques that a government official likened to torture,” and the court ruled that the disclosure “of photographs, videos and other audiovisual evidence of his confinement conditions” in response to a FOIA request from the Center for Constitutional Rights “could logically and plausibly harm national security because these images are uniquely susceptible to use by anti-American extremists as propaganda to incite violence against United States interests domestically and abroad.”
President Obama recently appointed the former head of the Federal Communications Commission, Julius Genachowski, to head the president’s intelligence advisory board. “UPS Chairman Scott Davis, former Nuclear Regulatory Commission Chairwoman Shirley Ann Jackson and Neal Wolin, the former No. 2 at the Treasury Department,” were also among the seven new members appointed to the committee, tasked with improving “the way intelligence agencies function, including their organizational structure and compliance with the law.”
Retired Navy Warrant Officer John A. Walker Jr., convicted of leading his family in a Soviet spy ring during the Cold War, died last week at the age of 77. Walker, a cryptologist who “used his high-level security clearance to provide Navy codes, ship locations, and other sensitive data in exchange for cash,” was sentenced to life in prison in 1985. At the time of his conviction, Walker’s leaks were considered “among the largest and most devastating leaks of military secrets in the nation’s history.”
The Office of Government Information Services (OGIS), the federal FOIA ombuds office, has begun posting the comments received by the FOIA Advisory Committee. The Committee, comprised of 10 government officials and 10 non-governmental FOIA experts – including Archive FOIA Coordinator Nate Jones –, is tasked with finding ways to improve the government’s processing of FOIA requests, and solicited comments from the public in order to do so. Two of the posted letters were submitted by Michael Ravnitzky and brought attention to the issues of wage garnishment in FOIA cases with unpaid fees, and outdated information on the FOIA.gov site. A separate letter from the National Security Counselor’s Kel McClanahan concerns the Department of Justice’s “Opportunistic Argument Effect,” in which it takes a position in litigation “not because it has a good faith belief that the position is correct, but because taking the position in that particular case will improve its chances of winning, and perhaps get a piece of favorable case law out of it.” McClanahan’s letter cited Nate Jones’ recent posting on the CIA’s misapplication and retraction of FOIA exemptions once it became apparent the agency “could obtain no further litigation advantage from the argument,” with McClanahan further noting that there are no disincentives for DOJ civil litigators to argue “for any position he pleases, and until there is, we simply cannot trust that DOJ is only making the arguments that the law calls for.”
This week’s #tbt document pick, inspired by McClanahan’s comments to the FOIA Advisory Committee, is the Department of Justice’s March 19, 2009, new FOIA guidelines. The 5-year-old guidance iterates that, among other things, “the Department of Justice will only defend withholdings in court when there is a reasonably foreseeable risk of harm to an interest protected by one of the FOIA exemptions or the law requires the information to be withheld. It states that this policy will be applied to pending litigation ‘if practicable’ and ‘where there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.’” As Kel McChanahan has pointed out, this guidance has yet to be fully embraced.