FOIA Reform Bill on Senate Judiciary Agenda, State Secrets, and Much More: FRINFORMSUM 9/18/2014
The Senate Judiciary Committee added the FOIA Improvement Act of 2014, S.2520, to its agenda this week. The much-needed bill addresses the runaway b(5) exemption, strengthens the FOIA ombuds OGIS, promotes more proactive online access to government information, and prevents agencies from charging some FOIA fees when they miss their deadlines. As OpentheGovernment.org’s Amy Bennett noted, S.2520 “would help ensure that historical records are available on a timely basis [and] would stem the worst abuses by allowing a court to weigh in where necessary to make sure records that would show waste, fraud, abuse, or illegality are released.” If the bill is held over for a week, which is standard practice for the Judiciary Committee, it means that Senators Patrick Leahy (D-VT) and John Cornyn’s (R-TX) bipartisan FOIA reform bill will be first up on the Committee’s agenda for the lame duck session.
The Department of Justice (DOJ) has invoked the state secrets privilege in a private defamation lawsuit brought by Greek shipping mogul Victor Restis against United Against Nuclear Iran. The group 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 DOJ initially intervened in the suit, which Restis brought after the group accused him of violating sanctions by exporting oil from Iran, to shield the group’s files, including its donor list. Last week, however, in what Mr. Restis’ lawyer, Abbe Lowell, said “There is no precedent, literally,” for the government doing, it asserted the state secrets privilege for undisclosed reasons and asked the court to dismiss the proceeding. As Steven Aftergood points out, however, “The government acknowledged in its privilege memorandum that its proposal to dismiss the case on state secrets grounds was unfair to the parties, but it said that it was the lesser of two evils.”
In another state secrets case, a federal judge said this week that “he would require in camera review of documents that the government says are protected by the state secrets privilege. The issue arose in the case of Gulet Mohamed v. Eric Holder, challenging the constitutionality of the ‘no fly’ list.” The court disagreed with the government’s argument that it would be “inappropriate” for the court to verify the documents in order to determine the validity of the privilege, with Judge Anthony J. Trenga of the Eastern District of Virginia noting in a footnote “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring. See Reynolds v. United States, 345 U.S. 1 (1953), in which it became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets….”
A recently declassified – albeit heavily redacted – Foreign Intelligence Surveillance Court (FISC) order is raising concerns over the scope of First Amendment protections. According to reporting by the Washington Post, Judge John D. Bates’ February 2013 order suggests “an American can be investigated as part of a terrorism investigation when he has done nothing more than exercise his First Amendment right of expression — as long as that speech shows sympathy for the terrorist group’s illegal activities.” When the DOJ was asked if Section 215 of the Patriot Act permits the government to obtain American citizens’ records when their free speech sympathizes with terrorism or is somehow “subject of a wider investigation,” a DOJ spokesperson said “It’s a hypothetical.”
The FISC recently approved the government’s latest request to continue the National Security Agency’s (NSA) mass surveillance of Americans’ call records for another 90 days. This is the third time the FISC has approved the government’s request to continue the NSA program since President Obama announced in January that he would reform it. The current order is set to expire on December 5, 2014.
Google’s latest transparency report, covering statistics from the first half of 2014, shows that US government requests for Google users’ data shot up 19% from the previous reporting period covering the latter half of 2013, and were up a whopping 250% from 2009. The requests from the US outpaced Google’s worldwide requests, which increased 15% and 150% respectively for the same time periods. While Google stated it did not always comply with the orders, recently disclosed court documents from Yahoo’s fight against government requests for its users’ data show a compelling reason why a tech company would comply. The documents reveal that in 2008 the government threatened to fine Yahoo a quarter of a million dollars a day if it didn’t surrender its users’ online information.
There is renewed tension between the CIA and the Senate Intelligence Committee in the wake of CIA director John Brennan’s refusal to tell the Committee who authorized agency employees to spy on Senate staff while it worked on a report highly critical of the CIA’s torture program. In August, and in direct contradiction to the Brennan’s previous claims, a CIA Inspector General (IG) report showed the agency did spy on Senate Intelligence Committee staff, finding specifically that five agency employees – two lawyers and three IT specialists – “improperly accessed” a database committee staff was using to complete its five-year, $40 million report. Brennan apologized to committee chairwoman Sen. Dianne Feinstein (D-CA) after the IG report was made public, though was reported to have “raised his voice at Feinstein” over the spying during a closed-door meeting latest week.
In a special posting for Unredacted, the University of Washington’s Trevor Griffey examines how flooding of the FBI archives in Alexandria, Virginia destroyed hundreds of thousands of pages of files related to Civil Rights movement history. Griffey notes, “Such reckless and inconsistent file implementation of records management standards, resulting in tragic and unnecessary destruction, demonstrates that the FBI is not the proper custodian of its own historic archive… the recent massive archival losses from flooding, combined with the FBI’s inconsistent approach to archival preservation, suggests the need for much greater oversight by the National Archives before more historically valuable files are destroyed.”
Archivist William Burr’s latest posting from the Nuclear Vault, “Israel Crosses the Threshold II: The Nixon Administration Debates the Emergence of the Israeli Nuclear Program,” provides new documentation on how the Nixon administration “looked the other way” while Israel developed its first nuclear weapons. According to newly declassified documents, the DOD’s Paul Warnke warned in early 1969 that the Israeli nuclear program was “the single most dangerous phenomenon in an area dangerous enough without nuclear weapons,” though Nixon would ultimately override his concerns, and “the near consensus of senior U.S. officials,” regarding the threat posed by the Israeli program.
Finally, this week’s #tbt document pick – and recently picked up by Reddit’s TIL feed – is a March 1967 CIA report entitled “Views on Trained Cats [Redacted] for [Redacted] Use,” more popularly known as the CIA’s “acoustic kitty” project. In what the CIA described as a “remarkable scientific achievement,” though later conceding it was not a “practical eavesdropping device,” the CIA stuffed a live cat with electronic spying equipment and attempted to train it to become a Cold War spy. After the cat had batteries and wires placed inside of it and an antenna inserted into its tail, several CIA agents took it outside to a park to see if it would, well, work. The cat was promptly hit by a taxi instead. The project cost 15$ million.