DOJ Issues New Cell Phone Tracking Policy That Does Not Apply to State or Local Law Enforcement, DOS Appoints FOIA Czar, and Much More: FRINFORMSUM 9/10/2015

Deputy AG Sally Yates at a hearing in March. Photo Credit: Pablo Martinez Monsivais/Associated Press

The Justice Department issued a new policy last week stating that investigators for the department’s component law enforcement agencies will now be required to obtain warrants before using StingRay cell phone tracking technology. The policy, which also limits what information may be collected via StingRay and how long it can be stored for, does not apply to state or local agencies unless they are engaged in a joint task force with the DOJ. The DOJ announced in May that it would begin a review of the agency’s use of the tracking technology after reports – and subsequent lawsuits – that the US Marshals were harvesting data from American cell phones from small planes “mounted with controversial cell-phone tracking systems.” Deputy Attorney General Susan Yates announced that the Department of Homeland Security is also “working on a cell-site policy similar to the one she outlined.”

A second review conducted by the CIA and the National Geospatial-Intelligence Agency of two emails Hillary Clinton received on her personal email while Secretary of State has confirmed the Intelligence Community Inspector General’s finding that the emails “contained highly classified information.” Both the Clinton campaign and the State Department have disputed the findings, citing classification disagreements as a regular occurrence. Clinton also apologized for using a private email, calling it a “mistake” (the Archive’s full analysis of her sole use of private email can be found here).

Politico’s Josh Gerstein reports that a FOIA lawsuit brought by journalist David Brown is seeking all records on how Clinton’s lawyer, David Kendall, was allowed to keep copies of Clinton’s emails after some were deemed classified. Gerstein notes that, “Kendall said in a letter to Congress recently that on July 8, the State Department provided him and his law partner Katherine Turner with a safe to hold the drive.” Kendall turned the thumb drive over to the FBI in August. Brown’s lawyer, Kel McClanahan, argues that it is highly unusual for a private attorney to hold classified records, saying, “If one of us tried to do this, we’d have our clearance yanked that very day and have a search warrant served on us and something different happened here.”

The State Department’s ongoing review of the remaining 25,000 Clinton emails in its possession is allegedly exacerbating the Department’s current FOIA backlog. According to the Department, by the end of FY 2014 there were an outstanding 10, 965 FOIA requests, with an additional 16,517 having been made since then. DOS has argued that tackling this growing backlog is nearly impossible if it is to successfully fulfill a “court-ordered release of all of Clinton’s work-related e-mails” in connection to a FOIA lawsuit brought by Vice News’ Jason Leopold. To contend with the challenge, the Department has both announced plans to pull 50 State employees – not designated FOIA professionals – from other departments to help with the backlog, and hired a FOIA czar, Ambassador Janice Jacobs, to oversee State’s beleaguered FOIA processing. Jacobs contributed “the max individual donation of $2,700 to Clinton’s presidential campaign” in her retirement, a fact DOS says it was unaware of. State spokesman John Kirby says the contribution, however, does not constitute a conflict of interest.

The Department of Defense Inspector General has cleared Army officials of retaliating against Army Lt. Col. Jason Amerine for blowing the whistle on US hostage recovery efforts. In 2014 Amerine provided information to Representative Duncan D. Hunter (R-Calif.) for Hunter’s attempts to improve hostage legislation, and participated in the Congressional investigation into hostage negotiating tactics, which was initiated after American hostage Warren Weinstein was killed in Pakistan in a drone strike this January. Amerine’s participation prompted complaints from the FBI to the Army, prompting a criminal inquiry, which Hunter and others allege is a “retaliatory investigation.” In a two-page August 28, 2015, memo the IG determined that three senior Army officials “did not violate whistleblower protection policies against Amerine in removing him from his job and referring the concerns about him to the Army’s Criminal Investigation Command (CID).” The issue continues to be scrutinized in Congress; “Sources with the Judiciary Committee said whistleblower advocates have raised concerns with them about there being a potential loophole in the existing whistleblower law that allows criminal investigations to be opened as a way of retaliating and as a ‘fishing expedition” for other wrongdoing.” The CID’s criminal investigation into Amerine is ongoing.

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.

A book rebutting the conclusions of the damning Senate Intelligence Committee report on the CIA’s torture program – authored by former agency officials implicated in the report – “depicts the Senate investigation as a partisan attack that maligned agency employees and dismissed the value of intelligence gained from captured al-Qaeda suspects.” The book, which includes essays by CIA directors George J. Tenet, Michael V. Hayden and Porter J. Goss, as well as the CIA’s Counterterrorism Center head Jose A. Rodriguez Jr., is being released by the US Naval Institute and is imaginatively entitled, “Rebuttal.” Rodriguez’s chapter is described as the most “combative.” Rodriguez, who has previously argued that the torture program was both effective and authorized, ordered the destruction of 92 video recordings of Abu Zubaydah being waterboarded 83 times in one month in a black prison site back in 2005. Rodriguez justified the destruction by writing that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.”

The federal FOIA ombuds office, the Office of Government Information Services (OGIS), recently announced that it has posted 150 of its case closure letters online since September 2014. The letters are drafted after OGIS has completed providing mediation services for a FOIA dispute, and the letters provide summaries and serve as an “important snapshot of the facts of the case and our work.” The letters can be viewed here.

OGIS also recently reiterated that its review team “will pay particular attention” to agency’s issuing “still interested” letters as it begins to assess individual FOIA programs, “including the six Department of Homeland Security components where reviews are underway or scheduled.” These are letters agencies send requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. OGIS anticipates releasing its findings on these letters by the end of the calendar year. Unfortunately, OGIS’ statement comes a year after the Archive sought OGIS assistance on this practice, of which the DHS is only one abuser of many, and in that time period the DOJ’s Office of Information Policy has already issued new guidance that inexplicably permits these likely illegal letters.

The FBI recently declassified 137 pages of its file on novelist Gabriel García Márquez in response to a FOIA request from The Washington Post – it withheld an additional 133. The bureau maintained a file on Márquez for 24 years, beginning in 1961 when Márquez traveled to the US to establish a Cuban news service. According to the Post, the FBI originally thought “the writer’s first name was José and misfil[ed] its classified intelligence under the name José García Márquez,” and later, when updating photos in the covert dossier, “agents simply copied the dust jacket of one of García Márquez’s best-selling novels and slapped the portrait into a file stamped ‘SECRET.’” That the FBI continues to withhold 133 pages of documents on its surveillance of Márquez – the most recent of which would be from 1985 – is shameful, and the bureau ought to declassify the remaining documents in their entirety.

The Hughes Glomar Explorer
(U.S. Government photo)

The Hughes Glomar Explorer, which was built in the 1960s by the CIA for Project Azorian – a secret attempt to salvage a Soviet Golf-II class submarine and its three one-megaton nuclear missiles that sunk off the coast of Hawaii – and was later purchased by a Swiss oil company, was recently consigned to the scrap yard due to falling oil prices. In response to a FOIA request on Project Azorian, the CIA said it could “neither confirm nor deny” that documents about either the ship or the censorship existed, and thus the infamous “Glomar response” was born. This week’s #tbt pick is chosen with this bit of FOIA history in mind, and is a 2010 posting from the Archive’s nuclear vault on the CIA’s declassified history of the Glomar Explorer,

Happy FOIA-ing!