Only One Hold Remains on FOIA Bill, Senators Call on NARA to Refuse CIA’s Request to Destroy Email Records, and Much More: FRINFORMSUM 12/4/2014

B(5) Used to prevent releasing embarrassing information? Not under the FOIA Improvement Act. https://nsarchive.wordpress.com/2011/05/13/document-friday-the-department-of-state-was-hiding-this/

After one Senator’s hold is lifted (ed note: as we publish this it appears there is only one hold remaining on the bill), the Senate is expected to vote on the FOIA Improvement Act, perhaps as early as today.  The bill will greatly help the Archive pry loose historically significant documents from the government going forward.  Recently the Senate Judiciary Committee unanimously passed the bill’s Manager’s Amendment, which maintains the bill’s most important reforms and includes a new statutory provision stating that agencies cannot use Exemption Five to “withhold information… merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption” or “merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.” The bill also precludes agencies from using Exemption Five to withhold documents over 25 years old. These fixes would mean that, if the bill becomes law, the CIA couldn’t misapply Exemption Five to continue to hide a 30-year-old volume of the agency’s draft “official history” of the Bay of Pigs debacle, that the exemption couldn’t be used to withhold historically significant documents on the 20-year-old Rwandan genocide, and that the DOJ would have a harder time hiding its Office of Legal Counsel opinions – including those concerning enhanced detention and interrogation, targeted killing programs, and NSA dragnet surveillance – behind this exemption.

If the bill passes the Senate floor vote, the next step is conference with the House. Given the House’s unanimous vote in favor of FOIA reform this May, the chances of conference seem high. Senate Judiciary chairman Sen. Leahy (D-VT), ranking member Sen. Grassley (R-IA), Sen. Cornyn (R-TX), and Reps. Issa (R-CA) and Cummings (D-MD), are all to be applauded for working together in one of the last bastions of bipartisanship to push through this important FOIA legislation.

Pretty sure the senators had Jose A. Rodriguez Jr., the former head of the CIA’s National Clandestine Service that ordered the destruction of key videos documenting CIA torture in 2005, in mind.

Senators Leahy and Cornyn also recently wrote the Archivist of the National Archives and Records Administration (NARA), David Ferriero, urging him to reject the CIA’s proposal to destroy its email records. The senators noted that the CIA’s plan should raise a red flag considering “We [] know that CIA personnel have in some instances deliberately destroyed records or other materials, suggesting that the National Archives must be particularly cautious in approving any policy permitting permanent destruction of CIA records.” A NARA official tentatively approved the CIA’s plan this August, but NARA has since announced it will “reassess” the CIA’s proposal in light of the criticism the request has received.

The Office of the Director of National Intelligence (ODNI) announced the establishment of the National Counterintelligence and Security Center this week. The new center will combine government security programs (like issuing security clearances and conducting background checks) with counterintelligence. The Office of the National Counterintelligence Executive currently oversees counterintelligence efforts, and former National Intelligence Executive Michelle Van Cleave argues, “adding the security mission to counterintelligence programs will dilute spy-catching efforts.” ODNI counters, however, that the new center will improve efficiency and is in line with the office’s other efforts to “establish intelligence centers, such as the National Counterproliferation Center and the National Counterterrorism Center.”

Steven Aftergood reported this week the new Defense Department “Detainee Operations” publication (Joint Publication 3-13) has replaced the term “unlawful enemy combatants” with “unprivileged enemy belligerents.” Other changes include adopting “Article 75 of the First Additional Protocol to the Geneva Conventions which provide minimum standards for humane treatment of detained persons. It also presents expanded discussion of biometric capabilities that are applicable to detainees.”

Aftergood also revealed this week that the number of invention secrecy orders, an order imposed if it is deemed the disclosure of a patent application would be “detrimental to the national security” and prevents the awarding of a patent and orders the invention be kept secret, has reached a 20-year high. According to the Patent and Trademark Office, by the end of FY2014 there were 5,520 secrecy orders in effect, and “It is unclear whether this reflects growing innovation in sensitive technology areas, or a more restrictive approach to disclosure by government agencies.”

Ashton Carter is said to be Obama’s next pick for defense secretary, though the White House has yet to confirm it. Michael Reynolds/European Pressphoto Agency

According to The New York Times, President Obama has picked Ashton Carter, former deputy defense secretary and chief weapons buyer for the Pentagon, to be his administration’s fourth secretary of defense, and a formal announcement is expected in the coming days. Defense Secretary Chuck Hagel resigned last week following tension over transferring Guantanamo detainees and a dispute with National Security Advisor Susan Rice over Syria policy. The Times notes Carter “is the only one of several top prospects who did not take himself out of the running for the job.” The Associated Press (AP) further reported that Obama’s choices for Hagel’s replacement have been limited, in part because of complaints of Obama’s attempts to micromanage Pentagon decisions. The AP noted “Within hours [of Hagel’s announcement], former Pentagon official Michele Flournoy called Obama to take herself out of consideration, even though she was widely seen as his top choice and would have been the first woman to hold the post.”

The Justice Department has provided a Chinese firm thousands of pages of previously secret documents concerning the government’s refusal to sell the company several Oregon wind farms over national security concerns. The DOJ made the documents available after Federal Judge Amy Berman Jackson for the D.C. Circuit ordered the Obama administration and the multi-agency Committee on Foreign Investment in the United States (CFIUS), which is responsible for vetting foreign companies’ purchase of American ones, to explain why it denied the Chinese firm’s bid to purchase the wind farms. This marks the first time the government has provided a foreign corporation documents concerning the CFIUS’ deliberations.

This week’s #tbt document pick is chosen with the recent revelations of convicted spy Jonathan Pollard’s Israeli handler in mind. Former Mossad agent Rafi Eitan told an Israeli news program that Pollard had bungled a pre-arranged escape plan that would have delivered him safely to Israel when he diverted from the plan and went to the Israeli Embassy in Washington, D.C. seeking asylum, at which point Eitan ordered the embassy to kick Pollard out in an attempt to avoid further complications. This week’s #tbt pick comes from an Archive Electronic Briefing Book (EBB) on the Pollard case, and is the declassified 1987 CIA damage assessment of Pollard’s spying. The CIA assessment notes the specific subjects Pollard’s Israeli handlers wanted information on – “primarily for nuclear, military and technical information on the Arab states, Pakistan, and the Soviet Union – not on the United States.” Note that the CIA assessment picked is the version released in 2012 by the Interagency Security Classification Appeals Panel (ISCAP), not the 2006 CIA release that is considerably more excised.

2006 CIA release on the left, 2012 ISCAP release on the right.

Happy FOIA-ing!