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CISA’s 10th FOIA Exemption Momentarily Held at Bay, the CIA’s Domestic Spying Efforts Come Under Scrutiny Again, and Much More: FRINFORMSUM 6/18/2015

June 18, 2015
McConnell likely to continue quest to add 10th exemption to FOIA? Photo credit: Gage Skidmore/Flickr

McConnell likely to continue quest to add 10th exemption to FOIA? Photo credit: Gage Skidmore/Flickr

The Senate voted against Majority Leader Mitch McConnell’s (R-Ky.) attempt to attach CISA – the Cybersecurity Information Sharing Act of 2015 – to the National Defense Authorization Act this week. CISA would, among other controversial provisions, add a tenth exemption to the FOIA covering all “information shared with or provided to the Federal Government.” The Sunlight Foundation’s Matthew Rumsey notes, “This is a victory, but it is likely only temporary. The Senate can — and likely will — consider the bill on its own anytime McConnell decides it is appropriate. In the meantime, transparency advocates will keep fighting to kill its harmful FOIA provisions.”

A FOIA request submitted by the ACLU and subsequently shared with The Guardian won the release of a previously classified 1987 CIA document outlining the agency’s guidelines for “human experimentation.” The document shows that the agency likely broke its own rules torturing terrorism detainees. The document specifies that “The agency ‘shall not sponsor, contract for, or conduct research on human subjects’ outside of instructions on responsible and humane medical practices set for the entire US government by its Department of Health and Human Services. A keystone of those instructions, the document notes, is the ‘subject’s informed consent’.” The document, which serves as a clarification of what the agency is permitted and prohibited from doing under EO12333, also grants the CIA director the discretion to “approve, modify, or disapprove all proposals pertaining to human subject research.”

AR 2-2 (U) LAW AND POLICY GOVERNING THE CONDUCT OF INTELLIGENCE ACTIVITIES (Formerly HR 7-1)

AR 2-2 (U) LAW AND POLICY GOVERNING THE CONDUCT
OF INTELLIGENCE ACTIVITIES (Formerly HR 7-1)

The CIA recently released 49 documents in response to a FOIA lawsuit filed by the ACLU and the Yale Law School that raise alarming questions about the extent of the agency’s domestic spying. The documents, many of which are policy briefings on how the CIA complies with Executive Order 12333, “strongly suggest that the agency engages in an extensive amount of domestic spying operations that are largely kept secret from the American people.” The key takeaways from the documents are: the CIA regulation referred to as “AR 2-2” governs a wide spectrum of the CIA’s activities; the agency’s domestic activity is often done in conjunction with the FBI; and “The rules for the handling of Americans’ information are so complex that the CIA struggled to apply them properly.” The documents raise questions about, among other things, what the CIA’s definition of “monitoring” domestic targets is, when monitoring devices may be used, and how “monitoring” differs from “electronic surveillance.” The Privacy and Civil Liberties Oversight Board is currently reviewing the Intelligence Community’s counterterrorism-related activities under EO 12333, and will hopefully shed more light on the CIA’s domestic actions.

The USS Pueblo docked in Pyongyang in 2010. For good measure, here is the official North Korean news agency report on the status of the spy ship: http://www.kcna.co.jp/item/2013/201302/news21/20130221-37ee.html

The USS Pueblo docked in Pyongyang in 2010. For good measure, here is the official North Korean news agency report on the status of the spy ship: http://www.kcna.co.jp/item/2013/201302/news21/20130221-37ee.html

The CIA has declassified five internal documents related to the agency’s performance in the lead-up to 9/11. They include a less-redacted version of a 2005 CIA inspector general report that found that the CIA did not have a comprehensive strategy for fighting al Qaeda before 9/11. The four other documents provide alternate views on the agency’s performance during this critical time period. The CIA has also released unclassified extracts from its March 2015 Studies in Intelligence publication – the agency’s in-house journal. The three articles released focus on autonomous systems, Laos, and the USS Pueblo.

On Tuesday the House of Representatives voted 247-148 to pass the 2016 intelligence authorization bill and increase spending on intelligence programs by seven percent. While most of the bill’s provisions are classified, known items include a ban on transferring Guantanamo detainees – six were transferred to Oman this week before the House vote –, and a provision that would block PCLOB – an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties – access to information on covert programs. The Washington Post’s Ellen Nakashima reported that Republicans on the House Intelligence Committee advanced the PCLOB provision after being angered by an opinion piece penned by PCLOB’s chairman. PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

The FBI recently briefed members of the Senate on its aerial surveillance program, assuring Congress – while refusing to answer certain questions about the program – that its “plane surveillance program is a by-the-books operation short on high-definition cameras — with some planes equipped with binoculars — and said only five times in five years has it tracked cellphones from the sky.” The Senate briefing was spurred by the Associated Press report last month that the bureau was operating a small air force of 115 planes across the country, some of which carried cellphone surveillance technology “generally used without a judge’s approval.”

The Department of Justice has acknowledged that there are currently two ongoing investigations into whether or not the Defense Department’s Office of Inspector General destroyed evidence during the investigation into former National Security Agency (NSA) officer Thomas Drake. Drake began cooperating with the Pentagon’s IG investigation of the NSA’s surveillance powers in 2002 and 2003, 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.” The DOJ issued the acknowledgement in response to federal magistrate Judge Stephanie Gallagher’s own investigation into the controversy, which she launched after Drake’s lawyers accused the DOD IG of the destruction in April.

The Department of Justice sued US Investigations Services Inc. (USIS), the company that performed Edward Snowden’s background check, for billions in damages last year. USIS, which lost its contract after a whistleblower leaked that it “churned through” security clearance investigations, fraudulently signed off on over 650,000 clearances between 2008 and 2012, including checks for Snowden and the Navy Yard Shooter, Aaron Alexis. The Washington Post reported this week, however, that current security clearance contractors, KeyPoint Government Solutions and CACI, have a similar quota system and “are required to meet pre-determined numbers that dictate how many people they have to interview per day,” frequently resulting in “shoddy investigations.”

Today’s #tbt pick is chosen with the 36th anniversary of the signing of the SALT II Treaty by Leonid Brezhnev and President Jimmy Carter in mind. Today’s #tbt pick is the transcript of the proceedings of the 1994 Musgrove Conference of the Carter-Brezhnev Project, entitled “SALT II and the Growth of Mistrust.” Learn more about the Carter-Brezhnev Project, which was sponsored by the National Security Archive, the Watson Institute at Brown University, and the Norwegian Nobel Institute, here.

The Carter-Brezhnev Project.

The Carter-Brezhnev Project.

Happy FOIA-ing!

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