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Court Upholds Hiding Panetta Review on Ineffectiveness of CIA Torture Behind B5 Curtain; and Much More: FRINFORMSUM 4/2/2015

April 2, 2015
"Because the Court finds that the CIA’s invocation of Exemption 5 is sound, it will grant the agency’s Motion and deny Plaintiff’s."

“Because the Court
finds that the CIA’s invocation of Exemption 5 is sound, it will grant the agency’s Motion and
deny Plaintiff’s.”

A federal judge recently upheld the CIA’s full denial of the Panetta Review – the internal 2009 CIA review finding the value of torturing detainees had been inflated – in response to a FOIA request by investigative reporter Jason Leopold. District Court Judge James Boasberg affirmed the CIA’s determination that the document was properly withheld under FOIA exemption b(5), the “deliberative process” exemption that potentially covers any “inter-agency or intra-agency memorandums or letters.”  In January, the New York Times reported that in response to Leopold’s FOIA request for documents used for the Panetta Review, each one “is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well”. The Society for Historians of American Foreign Relations noted this response is emblematic of the reason why there has been a longstanding push to end agencies’ practice of withholding too much information under the b(5) exemption, which has been used to censor information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more.

The Office of Special Counsel (OSC) was established in 1979 and tasked, in part, to “investigate potential cases of ‘arbitrary and capricious withholding of information’ under the Freedom of Information Act (FOIA) and determine whether action should be taken against the agency staffer responsible. Cases are supposed to be referred to the OSC by the Justice Department.” In the 37 years it has existed, however, OSC has never taken action against a federal official for such capricious withholdings – despite seemingly abundant opportunities. The OSC says this is because it has never received a referral from the court or the DOJ. The law also appears, however, “to give citizens the ability to pass along suspicions of agency wrongdoing”, making OSC’s jurisdiction unclear. OSC Deputy Special Counsel Adam Miles said, “Nothing would probably stop us from opening an investigation if we just received it directly from an individual”. Miles continued, “But we don’t receive those, because I don’t think individuals know they can do that.”

The House committee investigating the 2012 Benghazi attacks, which killed U.S. Ambassador Christopher Stevens and a senior Foreign Service officer, is requesting Hillary Clinton appear for a private interview concerning her sole use of personal email while serving as secretary of state. The request comes on heels of Clinton’s lawyer’s announcement that after Clinton and her staff determined some 30,000 of her emails were federal records and provided them to the State Department, her email server setting was changed to retain only emails sent within the previous 60 days. In other words, “there are no copies of any emails she sent during her time in office“, save for those Clinton and her staff – not FOIA officials – determined were federal records, and an independent verification of these assessments is now impossible. Clinton has expressed her desire to give her testimony to the House Benghazi committee in public.

An ancestry.com employee was recently fired for throwing away draft card information at a National Archives facility in Missouri. The employee was part of a team scanning 49 million WWII-era draft cards, and the employee, upon being warned about his productivity, tried to get rid off un-scanned stacks of paper accompanying the cards by hiding them in his desk and a trashcan. All of the material was recovered. Troublingly, as Matthew Aid notes, this is not the first instance of an ancestry.com employee destroying NARA records. Aid notes, “There have been a host of problems at NARA’s College Park research facility where workers belonging to ancestry.com and other Utah-based genealogy companies are suspected of destroying records, but NARA has done little about it because of a near total lack of oversight over these private contractors.”

Despite the Department of State having revoked the visa of accused Chilean torturer and murderer Jaime Garcia Covarrubias, the Pentagon not only refused efforts to have him removed as an instructor from the DOD’s National Defense University, it renewed Covarrubias’ contract. After a U.S. human rights violator unit notified Pentagon officials in 2011 of the visa revocation, Covarrubias was “paid sick leave and collected an annual salary in excess of $100,000 until February 2014.” The Pentagon says it will change its vetting process for foreign nationals working at the university.

A CENTCOM spokesperson recently acknowledged the command dropped 60,000 graphic anti-ISIS propaganda leaflets over Raqqa, Syria in an attempt to curb militant violence. The leaflet “depicts a monstrous-looking member of the Islamic State militant group urging a frightened young man to step forward, as another militant shoves a man head-first through a meat grinder. A sign overhead says ‘Daesh Recruiting Office’”.

CENTCOM leaflet for "Daesh Recruiting Office".

CENTCOM leaflet for “Daesh Recruiting Office”.

President Obama signed an Executive Order this week that establishes a sanctions program to combat “significant malicious cyberactivity”. The EO authorizes the secretary of the treasury, working with the secretary of state and the attorney general, “to designate foreign individuals or entities who have been found to have engaged in the malicious activity. Any case must be supported by evidence that could withstand a court challenge. A visa ban may also be imposed.”

Drug Enforcement Administration (DEA) special agent Carl Force has been fingered as  the mole within the Silk Road that the DEA used to bust of the online drug market. According to a recent Wired article, Force, among other accusations, allegedly took bitcoin payments numbering in the hundreds of thousands of dollars from the Silk Road under the auspices of his undercover investigation, and then transferred them to his personal account, instead of confiscating it as government property like he was supposed to. Even more astonishing, Force is accused of acting as a mole for the Silk Road’s convicted administrator, Ross Ulbricht (and then blackmailing Ulbricht under a pseudonym with law enforcement data). It’s unclear how this development will affect Ulbricht’s sentencing.

Steve Aftergood recently reported that the Department of Defense has cut security clearances by 700,000, or 15 per cent, over the last two years. Aftergood notes that “Most of the new reductions involved persons who had been investigated and deemed ‘eligible’ (or ‘cleared’) for access to classified information but who did not have or need such access in fact.”

June 13, 1971: The New York Times begins to publish the Pentagon Papers.

June 13, 1971: The New York Times begins to publish the Pentagon Papers.

This week’s #tbt doc pick is chosen with the NSA’s recent withholding of four seconds of a 42-year-old Nixon-era audio tape made by Nixon’s chief of staff, H.R. Haldeman (that “probably refers to a threat by former President Lyndon Johnson to expose an illegal attempt by Nixon’s presidential campaign to derail the 1968 Paris peace talks on ending the Vietnam War”), in mind. Today’s #tbt pick is a June 14, 1971, audio recording (and transcript) of Nixon meeting with Haldeman about the “treasonable” Pentagon Papers publication. Haldeman says “But out of the gobbledygook, comes a very clear thing: [unclear] you can’t trust the government; you can’t believe what they say; and you can’t rely on their judgment; and the – the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it’s wrong, and the President can be wrong.”

Happy FOIA-ing!

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