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Rep. Chaffetz tells Fed FOIA Head Melanie Pustay that She Lives in “La-La-Land” if She Thinks FOIA is Working Properly, and Much More: FRINFORMSUM 6/4/2015

June 4, 2015
Chaffetz, left, tells Pustay, right, that she lives in "la-la-land" if she thinks FOIA is working.

Chaffetz, left, tells Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working. Around 3:09’00’ mark.

The House Committee on Government Oversight and Reform held a two-day hearing this week on “Ensuring Transparency through the Freedom of Information Act.” The hearing was chaired by Rep. Jason Chaffetz (R-Utah), who cited in his opening statements a 2011 response from Immigration and Customs Enforcement (ICE) to a National Security Archive request, in which ICE provided our office with 111 pages of previously available public information. Chaffetz called the hearing with the goal of better understanding why the FOIA process is frequently slow and opaque, and told the Department of Justice’s Office of Information Policy (OIP) Director Melanie Pustay that she must be living in “la-la-land” if she thought FOIA was being properly implemented.

The first day of the hearing included witness testimony from members of the press, including Vice News’ Jason Leopold and former CBS anchor Sharyl Attkisson, and representatives of the open government community, including the Archive’s FOIA Project Director Nate Jones and the Campaign for Accountability’s Anne Weismann.

Jones argued that while FOIA is not a broken system, it is also not one that is living up to its potential. He emphasized, however, that passing legislation that would address the root of many contentious fee issues, place limitations on the oft-abused Exemption Five, and strengthen the FOIA ombuds office OGIS, would go far in improving FOIA implementation. Jones also called for an independent, robust FOIA “beat cop” to ensure agency compliance – a job the DOJ is currently not performing. Jones’ full testimony is available here and deserves a read for a thorough understanding of the big picture problems — and solutions — with current FOIA administration.

It’s worth noting that ranking member Elijah Cummings (D-Md.) said during the second panel that, “we’re going to sit down and try to improve the bill that we have [HR 653] so that we can accomplish something. In other words, to do what the law was intended to do, that is the FOIA law. Give me the elements of what needs to be in that legislation.” Rep. Chaffetz also noted that he wanted to consider –even though the House Oversight Committee approved HR 653 in March and even though FOIA reform essentially received 510 yes votes and 0 no votes at the end of last year’s session– “limiting back the exemptions.” He went on to say, “how would we reconstitute those nine [exemptions], should they be three, should they be two, maybe it’s 18 and they just need to be much more specific. How would you take that section of FOIA and re-do it in such a way” that exemptions were not abused, and solicited comments in writing from the panelists that would allow the Committee “in a bipartisan way try to re-do that.”

Such an ambitious reform may make it less likely that FOIA reform will actually become law this session.  It will be even more difficult to re-write the FOIA legislation to “reconstitute the exemptions” in the Senate given the current dynamic in that chamber.  Since 2007, FOIA bills have passed out of House and Senate Committees four times without becoming law.

Other highlights from the hearing’s first day included Jason Leopold describing an unprecedented incident with the Pentagon’s Office of Net Assessment, in which it agreed to process his FOIA request on the condition that he never file a FOIA request with their office again, or have anyone else do so on his behalf. Leopold also noted, anecdotally, that fewer than 1% of his FOIA requests were answered within the statutory 20-business day timeline. Newsweek’s Leah Goodman drew attention to the problem of anti-FOIA bureaucrats and “securocrats” who, because they frequently outlast administrations, flout presidential directives and attorney general memorandums calling for increased transparency. New York Times’ assistant general counsel David McCraw said that oftentimes a presumption of fear trumps a presumption of openness. Rep. Stephen Lynch (D-Mass.) also took the opportunity to express his wish to see the entire 9/11 Commission Report declassified.

The second day of the hearing featured a panel of Chief FOIA Officers from across the government and OIP Director Melanie Pustay. The government representatives presented a “rosy” view of FOIA at their various departments despite the previous testimony revealing the exact opposite, prompting Rep. Chaffetz to tell Ms. Pustay, who again trotted out misleading statistics on the government-wide FOIA release rates and FOIA litigation results, that she lived in “la la land.” Rep. Cummings noted towards the end of the hearing that while it was designed to determine how to improve the FOIA and how Congress could help agencies, it was “kinda hard to do that when you think you’re almost perfect, though.” The hearing made clear, among other things, that for more realistic assessments and insights into the FOIA process, a strengthened OGIS is needed. And for a better FOIA experience? Agencies must find a way to search emails.

The NSA seal.

The NSA seal.

The USA Freedom Act was signed into law this week in a symbolic post-9/11 shift towards reining in the sprawling surveillance apparatus. While the government maintains “robust surveillance powers,” the law will: end (in six months) the National Security Agency’s (NSA) bulk collection of American phone records, instead storing them with private phone companies that the NSA will need to obtain a court order to retrieve; provide a public advocate that will be able to argue before the Foreign Intelligence Surveillance Court in some instances; and give private companies more leeway in publishing the government requests for user data they receive. While some argued of the dangers of discontinuing NSA bulk collection of American phone data – implying the program’s effectiveness – , studies have repeatedly “found no evidence that it had ever thwarted a terrorist attack.”

The USA Freedom Act will reinstate the FBI’s roving wiretap and lone-wolf provision. It will not, however, do anything “to affect another major Snowden revelation: the NSA’s collection of foreign Internet content from U.S. tech companies, a program that sweeps up lots of American communications. And it doesn’t address the bulk of Snowden disclosures about foreign intelligence gathering and the NSA’s attempts to exploit technology, such as encryption, for the benefit of U.S. intelligence.” AP reporting argues “it’s practically inconsequential in the universe of the National Security Agency’s vast digital spying operations, a technical overhaul of a marginal counterterrorism program that some NSA officials wanted to jettison anyway.” Secrecy News’ Steven Aftergood noted that while the legislation did not go as far as some on either side of the debate would have liked, time will tell if it is “the beginning of a recalibration of intelligence policy, or is it the most that Congress can accomplish and the end of the reform process”.

The Associated Press reported this week that, “The FBI is operating a small air force with scores of low-flying planes across the country carrying video and, at times, cellphone surveillance technology — all hidden behind fictitious companies that are fronts for the government.” The surveillance conducted by this secret air force is “generally used without a judge’s approval.” The AP traced the government’s use of civilian surveillance planes to at least 13 fake companies, including KQM Aviation, NBR Aviation and PXW Services, which are all “registered to post office boxes in Bristow, Virginia, which is near a regional airport used for private and charter flights. Only one of them appears in state business records.” The companies’ names are redacted from DOJ Inspector General reports. Matthew Aid culled Federal Aviation Administration databases in his ongoing information on the topic, and has posted additional open source intelligence on the FBI’s aviation program.

Tom Drake, impoverished by DOJ persecution a federal judge later called "unconscionable," now works at an Apple store. Photograph by Timothy Jacobsen/AP Photo

Tom Drake, impoverished by DOJ persecution a federal judge later called “unconscionable,” now works at an Apple store. Photograph by Timothy Jacobsen/AP Photo

Federal magistrate Judge Stephanie Gallagher is launching an investigation into whether or not the Justice Department destroyed documents during the investigation into former NSA whistleblower Thomas Drake, according to McClatchy. In 2002 and 2003 Drake began cooperating with the Pentagon Inspector General’s office investigating the NSA’s surveillance programs and was charged by the government in 2010 under the Espionage Act. The charge was dropped in 2011 in a case that US District Court Judge Richard Bennett called “unconscionable,” adding that it didn’t “pass the smell test.” Gallagher launched her inquiry “after Drake’s lawyers in April accused the Pentagon inspector general’s office of destroying possible evidence during Drake’s criminal prosecution, which ended almost four years ago.”

Reuters recently reported that the US tried – and failed – to launch a Stuxnet-like attack on North Korea. The attack against North Korea was launched simultaneously with the Stuxnet virus, which attacked Iranian nuclear centrifuges in 2009 and 2010 and was allegedly the result of US-Israeli collaboration, but failed due to the “extreme isolation” of Pyongyang’s communications system.

A Social Security Administration Inspector General report revealed that $20.2 million in Social Security benefits was paid “to more than 130 United States residents linked to Nazi atrocities over the course of more than a half-century, with some of the payments made as recently as this year.” The report further noted that nearly all of the payments were proper under policies in effect at the time, and that the benefits could not be suspended until an individual was deported. The investigation was spurred by Associated Press reporting.

‘push so many chips into the pot’ that the other side will think we might be ‘crazy’

 

This week’s #tbt document pick is chosen with the Archive’s Nuclear Vault latest posting examining a new book containing the Nixon White House’s Top Secret considerations of nuclear options against North Vietnam in September 1969 in mind. This week’s #tbt pick is a Top Secret August 10, 1972, memo entitled “Kissinger,” in which Kissinger said: the “President’s strategy has been (in the mid-East crisis, in Vietnam, etc.) to ‘push so many chips into the pot’ that the other side will think we might be ‘crazy’ and might really go much further.”

Happy FOIA-ing!

 

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