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DOJ OIP to Join FOIAonline, 2,500 PDBs Released by CIA 8 Years after Agency Argues Against NSArchive in Court That No Portions of PDBs Segregable for Release, and Much More: FRINFORMSUM 9/17/2015

September 17, 2015
DOJ OIP to join FOIAonline in 2016.

DOJ OIP to join FOIAonline in 2016.

The Department of Justice’s Office of Information Policy (OIP) recently announced that it will join FOIAonline, the multi-agency FOIA submission and tracking system created by the EPA, in 2016. The OIP announcement also noted that, “In addition to tracking the requests it processes and the Department’s administrative FOIA appeals, OIP will be using FOIAonline to prepare and validate the Department’s Annual FOIA Report.” OIP’s move to FOIAonline could indicate that the office, which is in charge of “encouraging agency compliance” with the FOIA, is getting serious about agencies harnessing technology to create – or join – state-of-the art FOIA platforms that save agencies time and money and help decrease FOIA backlogs. It does, however, beg questions about the future of the Obama administration’s FOIA Portal, thought to be being developed by the tech whizzes at 18F. While 18F has already announced “that it was not creating a backend tool for FOIA processing offices to use in managing requests,” the Obama administration’s Second U.S. National Action Plan pledged to “launch a consolidated request portal that allows the public to submit a request to any Federal agency from a single website and includes additional tools to improve the customer experience,” with many expecting 18F to fulfill that function.

The CIAs 2007 arguments for withholding the PDBs in full.

The CIA’s 2007 arguments for withholding the PDBs in full.

This week the CIA and the LBJ Library released online a collection of 2,500 declassified President’s Daily Briefs (PDBs) from the Kennedy and Johnson administrations. The release of the PDBs, which are Top Secret documents containing the most current and significant intelligence information that the CIA believes that the President needs to know, is significant as it comes eight years after the Ninth Circuit Court of Appeals ruled against the National Security Archive and Professor Larry Berman in his efforts to obtain the disclosure of two PDBs written for President Lyndon B. Johnson in the 1960s. At the time the CIA argued in court that the PDB was itself an intelligence method, and that therefore no portions of either document was segregable. While the court ruled –without viewing the documents– that the PDBs’ disclosure could “reveal protected intelligence sources and methods” and thus withheld both in full, it did reject the CIA’s “attempt to create a per se status exemption for PDBs.” The CIA’s latest release includes the two PDBs at the center of the Archive/Berman lawsuit, which were disclosed in part despite the CIA’s earlier claims of non-segregablility. Dr. John Prados, Archive Senior Fellow and head of the Archive’s Intelligence Documentation project, also has an excellent post on the disclosure, available here.

DNI Clapper and the "Cheney effect"?

DNI Clapper and the “Cheney effect”?

The Defense Department’s Inspector General is focusing on CENTCOM’s intelligence wing in its investigation into allegations of distorted intelligence concerning the war against the Islamic State. The analysts who filed complaints about the distorted intelligence – who work for the Defense Intelligence Agency – argue “that their superiors within Centcom’s intelligence operation changed conclusions about a number of topics, including the readiness of Iraqi security forces and the success of the bombing campaign in Iraq and Syria. The revisions presented a more positive picture to the White House, Congress and other intelligence agencies.” Earlier reports highlighted concern that Director of National Intelligence James Clapper’s very close and “highly unusual” relationship with CENTCOM’s intelligence wing head –and far more junior officer– Army Major General Steven Grove, was having a “Cheney effect” on the intelligence coming out of the CENTCOM office, “a reference to pressure felt by CIA analysts before the 2003 Iraq invasion to portray Saddam Hussein as posing a more dire threat than he actually did, following then Vice-President Dick Cheney’s direct interaction with far more junior analysts and officials.” News of the possible data distortion prompted the House Oversight and Government Reform Committee to request briefings from senior DOD officials about the allegations of manipulated intelligence, due Friday. Representative Adam Schiff (D-Calif.) said this week, “In the wake of the flawed intelligence prior to the Iraq war, we must make sure that all voices are appropriately considered and that assessments are never again politicized.”

For the first time since 2001 a federal judge has fully lifted an 11-year-old non-disclosure provision that has, until now, prevented Nicholas Merrill from discussing his receipt of one of the FBI’s National Security Letters (NSL). While the FBI ultimately withdrew the NSL, which is a letter that demands business records for national security investigations, because Merrill “continually refused to comply” with it, Merrill continued fighting the gag order. Insufficient judicial oversight of the NSLs, particularly their non-disclosure provisions, has been a long-standing concern for transparency advocates. While revisions of USA Patriot Act have allowed for greater judicial review and clarifications to the non-disclosure clauses, there are still no requirements to seek approval or judicial review when sending an NSL, and the non-disclosure provisions prevent the full extent of the NSL program from becoming known. Despite his recent victory, Merrill will have to wait 90 days before discussing his experience with the FBI in order to give the government time to appeal.

Federal employees lodged an unprecedented number of complaints in FY2014 with the Office of Special Counsel (OSC), which is responsible for safeguarding “the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.” The FY2014 OSC annual report shows that the office received more than 5,000 complaints in FY2014, a 17 percent increase from FY2013, noting that “The number of prohibited personnel practice (PPP) complaints was also at an all-time high, 3,371, nearly a thousand more than just four years prior. We also received significantly more whistleblower disclosures in FY 2014 than in past years.” The OSC annual report also found 117 instances of favorable outcomes for whistleblowers that filed complaints, also an all-time high. OSC anticipates the number of complaints it receives will to continue to grow.

President Obama will not be staying at New York City’s famed Waldorf Astoria hotel during the UN General Assembly meeting this month, as is Presidential custom. The change of venue was spurred by spying concerns now that a Chinese insurance company owns the hotel. The Committee on Foreign Investment in the United States (CFIUS), which is responsible for vetting foreign companies’ purchase of American ones, cleared the Chinese company’s purchase of the hotel earlier this year.

The Anwar al-Awlaki File

The Anwar al-Awlaki File

The Archive, working with New York Times national security reporter Scott Shane, recently published the primary source documents gathered by Shane for his new book on Anwar al-Awlaki, Objective Troy: A Terrorist, A President, and the Rise of the Drone, which was released this week. As Shane notes in his posting for the Archive, “The attention [al-Awlaki] drew from anxious American authorities over many years meant that many government documents shed light on his life, on the government’s view of him at different stages, and on the legal analysis that justified his extrajudicial execution. Many of the documents [in the posting] were obtained under the Freedom of Information Act by J.M. Berger of Intelwire, an author and researcher on terrorism; by the conservative Washington organization Judicial Watch;” and Shane himself.

With the recent release of a trove of PDBs in mind, today’s #tbt document pick is the 6 August 2001 President’s Daily Brief, “Bin Laden determined to strike in US,” which warned of terrorist threats to the US from bin Laden and al-Qaeda 36 days before the 9/11 attacks. The PDBs declassification and release to the 9/11 Commission made President Bush the first sitting president to declassify even a portion of his PDB.

Bin Laden Determined to Strike US

Bin Laden Determined to Strike in US

HAPPY FOIA-ing!

 

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