FOIA Releases Shed Light on al-Awlaki Role in Failed 2009 Bombing, Scott Pruitt’s Close Ties to Energy Industry, and Much More: FRINFORMSUM 2/23/2017
FOIA Request Reveals Anwar al-Awlaki’s Role in Failed 2009 Bombing
A federal judge’s order that the FBI conduct a line-by-line review of documents on radicalized American imam Anwar al-Awlaki’s role in an attempted 2009 airline bombing forced the agency to release hundreds of historically significant pages. The documents were initially requested by New York Times reporter Scott Shane, then working on a book about Awlaki – “the first American citizen deliberately killed on the order of a president, without criminal charges or trial, since the Civil War.” The FBI refused to release them, at which point the paper sued. Two years later, the agency was forced to release the records – FBI interviews with Umar Farouk Abdulmutallab, an al Qaeda operative convicted of attempting to blow up a flight to Detroit on December 25, 2009.
The interviews are significant for a number of reasons. First and foremost, they “suggest that the Obama administration had ample firsthand testimony from Mr. Abdulmutallab that the cleric oversaw his training and conceived the plot.” The documents also bolster arguments by experienced interrogators that torture is not useful or necessary to extract important information from suspects; the detailed descriptions interrogators were able to glean of the al Qaeda compound in Yemen provided by Abdulmutallab “were so precise that it is likely they have helped shape targeting decisions in the American drone campaign” there.
In 2015 Shane compiled and edited “The Anwar al-Awlaki File” for the National Security Archive – a posting containing 22 documents obtained under the FOIA that sheds significant light on the American government’s knowledge and understanding of the cleric.
Oklahoma FOIA Release Shows Pruitt’s Close Ties with Energy Industry
7,500 pages of emails and other records released under FOIA to the Center for Media and Democracy two days after Scott Pruitt was confirmed as the new head of the Environmental Protection Agency show Pruitt “closely coordinated with major oil and gas producers, electric utilities and political groups with ties to the libertarian billionaire brothers Charles G. and David H. Koch to roll back environmental regulations.” A move by Senate Democrats to delay Pruitt’s confirmation vote until after the emails from Pruitt’s tenure as Oklahoma Attorney General were published was defeated by Republicans. Many of the emails had been published by the New York Times in 2014, but the totality of this week’s release “captures just how much at war Mr. Pruitt was with the E.P.A. and how cozy he was with the industries that he is now charged with policing.”
Judge Tells FBI Argument for Exemption “Falls Woefully Short,” but Bureau Gets Another Chance to Justify Withholdings
U.S. District Court Judge Amit Mehta told the FBI’s lawyers in a FOIA lawsuit that their argument for invoking FOIA’s law enforcement exemption “falls woefully short” and was “particularly inadequate.” The case was brought by the Electronic Privacy Information Center, which sued the bureau for “copies of the FBI’s ‘privacy impact assessments’ and ‘privacy threshold analyses’ on various bureau databases containing personal information.” The bureau released 2,200 redacted pages, arguing the withheld information would compromise law enforcement methods or techniques. Mehta disagreed, saying the agency didn’t prove that the redacted information was actually compiled for law enforcement purposes; Mehta “also faulted the FBI for failing to explain in detail how it searched for records responsive to EPIC’s request.” Josh Gerstein notes EPIC’s win may only be temporary, “since the judge said he would give the FBI and its Justice Department attorneys another crack at justifying the withholdings and explaining the search process.”
The National Security Archive and the Project on Government Oversight are distributing an unofficial survey for both FOIA processors and FOIA requesters on how agencies conduct searches. The goal of the survey will be to collect data on disparate agency search methods and software – and the more people who fill it out, the more useful the collected data will be.
Please take 10-15 minutes to fill out the survey and help us circulate it as widely as possible.
CBP Gives 5-Day Deadline for “Still Interested” Letter
The Memory Hole’s Russ Kick recently posted a photo of a FOIA response from Customs and Border Protection giving him only five days to respond to a “still interested” letter before closing the request, which concerned Trump’s January 27 Executive Order on immigration. In other words, the CBP is issuing “still interested” letters with an absurdly short response time for FOIA requests that are, at most, 27 days old.
The insult of the five-day deadline is made worse by the fact that there is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.”
CBP told the Office of Government Information Services (OGIS) during its FY 2016 FOIA compliance report that CBP’s “FOIA Office has not used ‘still interested’ letters since FY 2012.” OGIS also noted in its compliance report that, “In 2012, CBP administratively closed 11,000 FOIA requests and sent letters to the requesters informing them of the closure and that they should contact the agency if they were still interested in the agency processing the request; the agency had to re-open the requests and process them.” Either CBP was being untruthful with OGIS while the ombuds office was conducting its FY2016 report, or the agency has decided to drastically change course on issuing these letters in the time since OGIS published its compliance report. (OGIS has also issued several good reports on agency use of “still interested” letters that CBP should re-read, noting first among its findings that the data “does not capture requester frustration” at receiving these letters.)
CBP’s letter is also in violation of guidance issued by the Justice Department’s Office of Information Policy (OIP) in July 2015, which clearly requires agencies provide requesters a reasonable amount of time to respond to a still interested letter (30 days at a minimum).
CBP isn’t alone in trying to proactively close FOIA requests. Amie Stepanovich, the policy manager for Access Now, recently spotlighted an absurd FOIA response from the Interior Department that said, “We expect to issue our determination response to you by March 9, 2017. If you do not receive our response by that date, you may consider your request administratively denied and file an appeal.”
B5 Upheld in State Department Handling of Clinton Emails
U.S. District Judge James E. Boasberg is upholding the State Department’s use of FOIA’s exemption 5 – the deliberative process exemption – to withhold agency discussions about Hillary Clinton’s emails in a FOIA lawsuit brought by Judicial Watch. In the ruling Boasberg found, ““A document sheds light on misconduct when it ‘reflects any governmental impropriety,’ but not when it merely reflects a ‘part of the legitimate government process intended to be protected by Exemption 5.’” Judicial Watch has not yet announced if it will appeal the decision.
Child Care Center Emergency Plans Were Among Building Info Endangered by GSA Cloud Security Lapses
A 2014 General Services Administration Office of Inspector General report found that sensitive building information – which could be employed in attempts to damage people or property – was available to individuals without a need to know.
Specific sensitive but unclassified building information that was available included:
– Child care center emergency plans;
– Evacuation routes;
– Detailed vulnerability assessments containing explosive blast loads for courthouses and blueprints pinpointing location of judges’ chambers;
– Security and mail screening procedures for a National Nuclear Security Administration campus.
The report was released in January 2017 because the vulnerabilities “no longer exist,” and is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, February 22.
FEMA Didn’t Realize it was Ordering Lethal Ricin for Years
FOIA-released records obtained by USA TODAY show that “Officials at a federal training facility that mistakenly exposed thousands of first responders to deadly ricin toxin were worried five years ago that their vendor had shipped the wrong type of powder.” Alison Young reports that FEMA and the Department of Homeland Security are currently investigating the incident, which FEMA blames on a vendor whose identity is redacted from the released documents, but notes there’s been no explanation why it took FEMA so long to spot the potentially lethal problem.
TBT Pick – Iraq: The Media War Plan
This week’s #tbt pick is a 2007 posting from our Iraq Project that spotlights a Defense Department White Paper and PowerPoint briefing that recommend a “Rapid Reaction Media Team” that would “serve as a bridge between Iraq’s formerly state-controlled news outlets and an ‘Iraqi Free Media’ network.” According to analysis by Iraq Project Director Joyce Battle, “the rapid reaction team would create narratives leading Iraqis to feel, Pentagon planners enthused, like North Koreans who turned off state TV at night and in the morning turned on ‘the rich fare of South Korean TV . . . as their very own.’ Foreshadowing the unfolding of the U.S. government’s Iraq media policy, preliminary work would not come cheap – Defense Department planners recommended paying two U.S. consultants $140,000 each for a campaign of six months duration.”
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