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Defending Bad FOIA Stances Costs Government Millions, Core FOIA Regs Drawn From Civil Society Recommendations Would Greatly Improve FOIA Landscape: FRINFORMSUM 4/7/2016

April 7, 2016
foialit

Just some of the money the government paid out in calendar year 2015 because the DOJ’s insistence on defending bad agency FOIA positions in court.

The US government paid out $1,904,591.60 in attorney fees and costs after defending –and losing— bad agency FOIA positions in 2015. These payments include: shelling out $30,000 to the Georgia Latino Alliance for Human Rights in their FOIA battle against the Department of Homeland Security over records on “Georgia’s increasing involvement in immigration enforcement, including information that will shed light on increasing reports of racial profiling and police abuse;” $140,000 to the Center on Race Poverty & The Environment in their case against the Environmental Protection Agency for records on several EPA Office of Civil Rights investigations; and $414,478.40 in Hall vs the CIA, a case concerning POW/MIA records.

These figures are found in the Department of Justice’s Office of Information Policy 2015 FOIA litigation and compliance report, which details OIP’s efforts to “encourage” FOIA compliance throughout the 2015 calendar year. It’s worth noting that the amount of money paid after losing FOIA cases only represents a small fraction of FOIA litigation-related costs; for example, in FY 2015 the government incurred $31,300,000 in litigation-related costs – and only recouped $4.4 million in FOIA fees, begging the question of the necessity of fees in the first place (more on that from Nate Jones here).

This incredible waste of taxpayer funding –which simultaneously upholds dubious government secrecy– underlines perhaps the key failure of the Obama administration’s FOIA policy: it’s inability to compel its Department of Justice to follow it’s own “presumption of openness” guidance, rather than defend every agency withholding at seemingly every instance.

The OIP report also discusses new guidance on the use of “still interested” letters — letters agencies send FOIA requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. While OIP guidance requires agencies to limit the instances in which they send such letters to when the agency “has a reasonable basis to believe that the requester’s interest in the records may have changed” and instructs agencies to provide requesters a reasonable amount of time to respond to the query (30 days at a minimum) – the overall premise behind these letters remains fundamentally flawed. 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, and any guidance that condones an agency closing a FOIA request without legal authority provided by the FOIA is misguided and should be revised.

OIP’s work developing the content for a potential set of “core” FOIA regulations as part of the Obama administration’s commitments in its Second Open Government National Action Plan was also touted in the report. On March 24 OIP released new guidance and a template for agencies to use to review and update their FOIA regulations, and announced that the guidance was the conclusion of its work developing a set of core FOIA regs. OIP notes in its litigation and compliance report that in fulfilling this commitment, “OIP launched this project by meeting with both agencies and civil society to get their initial input…Throughout the process of developing common language and practices, OIP and the working group have been, and will continue to be, engaged with civil society.”

A must-read report from OpenTheGovernment.org (OTG), however, shows that this is not the case.

otg

As OTG notes, the regulation guidance issued by OIP does not reflect the model FOIA regulations that civil society worked extensively to develop. OIP’s guidance does not adequately address, among other things, the need to limit the application of Exemption 5, reduce unnecessary secrecy, or contain language on reducing consultations or referrals. Perhaps most troublingly, OIP does not establish a timeline for agencies to update their FOIA regulations so they reflect the most recent requirements of the statute; “A primary concern remains that, without any stipulated requirements for agencies to update their FOIA regulations, agencies – particularly the worst-performing agencies – likely won’t take the necessary steps to do so. Even when agencies do begin the steps to update their FOIA regulations, the lack of a defined timeline allows for a drawn-out process.”

Fortunately, Congress has taken a more proactive approach than the Department of Justice.  FOIA reform bills that have unanimously passed in both the Senate and House (but distressingly have not yet become law) each require agencies to update their FOIA regulations within 180 days after the passage of the bills.

clappermemo

Addendum to the FY2017 Fundamental Classification Guidance Review

The Director of National Intelligence, James Clapper, requested the personal involvement of the heads of the CIA, Defense Intelligence Agency, National Geospatial-Intelligence Agency, National Security Agency, and the National Reconnaissance Office in the upcoming Fundamental Classification Guidance Review – a move that Steve Aftergood notes is “extraordinary.” The FCGR is “an effort to eliminate obsolete classification requirements and to reduce national security secrecy” and Clapper’s call to agency heads “elevates it to a senior-level imperative.” Clapper asks agency chiefs for feedback on, among other things, the feasibility of an IC-wide classification guide, the possibility of eliminating the Confidential label in the IC, and comments “on what would be required to implement a proactive discretionary declassification program distinct from the systematic, automatic, and mandatory declassification review programs.” Steve Aftergood points out the significance of Clapper’s involvement, saying, “The history of secrecy reform in the U.S. government demonstrates that it is most effective — or that it is only effective — when it is driven by senior agency leadership. Not since Secretary of Energy Hazel O’Leary’s ‘openness initiative’ in the 1990s has an agency head endorsed secrecy reform with the specificity and authority expressed by DNI Clapper.”

One of the ways agencies in the IC –and across the government– can improve their proactive discretionary disclosures is by formally adopting Clapper’s and DNI General Counsel Bob Litt’s instruction to declassify historic documents even when they may be technically “properly classified.”  Two Sunshine Weeks ago, Litt stated that those with classification and declassification authority must ask themselves “not can we classify, but should we?” Pointing to Section 3.1 (d) of the Executive Order on Classification 13526 — the “Public Interest Test” that allows agencies to declassify documents even if they are technically “properly classified” — Litt claimed that declassifiers of historic documents should already be using this authority.  In practice, however, they are not.

What can the US National Archives (NARA) do for truly open government? The National Security Archive’s Nate Jones argues that declassification needs to be the focus of NARA’s upcoming Open Government Plan, and suggest speeding up and expanding declassification at the National Declassification Center, celebrating the upcoming release of the remaining JFK assassination records, and declaring the Senate’s report on the CIA’s torture program a federal record as just some of the ways for NARA to establish itself as the federal government’s principled leader on declassification. Get the in-depth recommendations here.

NARA recently announced that the CIA has officially withdrawn its proposed email retention plan that would have allowed it to destroy all the email records of all but 22 high-level agency employees. The National Security Archive and many of our open government colleagues asked NARA to deny the CIA’s plan when it was revealed in 2014. Senators Patrick Leahy and John Cornyn also urged NARA  to reject the CIA’s proposal to destroy its email records, noting that the CIA’s plan should raise a red flag considering “We [] know that CIA personnel have in some instances deliberately destroyed records or other materials, suggesting that the National Archives must be particularly cautious in approving any policy permitting permanent destruction of CIA records.” A NARA official tentatively approved the CIA’s plan in August 2014, but announced later that year it would “reassess” the CIA’s proposal in light of the criticism the request has received. Steve Aftergood notes that the “CIA is still obliged to present a plan to the National Archives to explain how it will preserve or dispose of its email records. CIA can either adopt the standard template known as the Capstone General Records Schedule, or it can devise a specific plan of its own for approval by the National Archives.”

Key Targets for SAC Forces.

Key Targets for SAC Forces.

Which cities were the most heavily-targeted in Strategic Air Command’s ‎nuclear weapons requirements study for 1959? The National Security Archive has posted the full 306-page list after a number of interested readers wrote to find out whether their city or locality is on the massive list of urban-industrial complexes that was part of the SAC study, initially posted by the Archive in December 2015. The full list show shows Berlin, Bucharest, Budapest, Dresden, Leipzig, Riga, Sofia, Tallinn, Tbilisi, Vilnius, Warsaw, and Wrocław (Breslau) were among the most heavily-targeted.

Image by Lauren Harper.

Image by Lauren Harper.

A fascinating read to tide baseball fans just in time for opening day: The Wilson Ramos Kidnapping Declassified. A State Department cable released in part thanks to a National Security Archive FOIA request sheds light on the scary 2011 incident, lauds Venezuelan police forces for his rescue, and raises more questions on the possibly motivation for the Washington Nationals catcher’s kidnapping. The Archive is appealing the redactions to learn more.

This week’s #tbt pick is a 2013 posting from the Archive’s Nuclear Vault on the Israel-Argentina Yellowcake connection; the posting includes previously secret documents that show Canadian intelligence discovered Israel purchased 80-100 tons of yellowcake from Argentina during 1963-1964 for its nuclear weapons program.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

 

Cold War Nuclear Target Lists Updated in Nuclear Vault Posting

April 4, 2016
Key Targets for SAC Forces.

Key Targets for SAC Forces.

A partial listing of targets in Budapest.

A partial listing of targets in Budapest.

Today the Nuclear Vault publishes an update of its widely read 22 December 2015 posting on the Strategic Air Command’s nuclear weapons requirements study for 1959.  A number of interested readers wrote to find out whether their city or locality is on the massive list of urban-industrial complexes that was part of the SAC study.  To help those and other readers, the Archive is publishing in its entirety the 306-page list included in part 1 of the study. The list in part 2 is essentially the same.  The only difference would be the numbers of nuclear weapons assigned to the targets but that information was completely exempted from both lists.

Heavily-targeted Eastern European cities revealed in the list include: Berlin; Bucharest; Budapest; Dresden; Leipzig; Riga; Sofia; Tallinn; Tbilisi; Vilnius; Warsaw; and Wrocław (Breslau).

As part of the update, the Nuclear Vault also includes some context for the SAC study. Further archival research has turned up documents and references in the records of the Joint Chiefs of Staff which demonstrate that the SAC study was prepared in response to a specific request to unified and specified commands for information on their nuclear weapons requirements for 1959.  Thus, not only the SAC, but also the Pacific Command, the European Command, the Atlantic Command, and the Alaskan Command, among others, prepared weapons requirements studies.  But the specific request which went to the commands and the supporting rationale remain classified although under a pending declassification request.  For details, see the update

The Wilson Ramos Kidnapping Declassified

April 1, 2016
Image by Lauren Harper.

Image by Lauren Harper.

The Department of State has declassified a cable on the November 9, 2011 kidnapping and November 12 rescue of Washington Nationals star catcher Wilson Ramos in response to a National Security Archive Freedom of Information Act request.  According to previously “Secret/NOFORN” cable composed by the US Embassy in Caracas, Ramos’s rescue “was the result of good police work” by Venezuela’s Corps of Scientific, Penal and Criminal Investigative Corps (CICPC).

"Free Wilson" signs left at Nationals Park on November 11, 2011. Courtesy SB Nation.

“Free Wilson” signs left at Nationals Park on November 11, 2011. Courtesy SB Nation.

On the evening of November 9th, Ramos was kidnapped at gunpoint from his mother’s home in the city of Valencia, near the Caribbean coast.  According to Ramos’s account, the gunmen threw him into the back of a Chevorlet Captiva and covered his face with a black t-shirt.  They drove to a mountainous region near the town of Montalban in central Venezuala.  There, they did not physically harm Ramos, attempted to feed him (arepas with sardines), and told him that they “were going to ask for a ton of cash for [him].”

According to the Department of State cable, the CICPC “already had the abductors under investigation prior to Ramos’s kidnapping because the group had kidnapped other individuals in the same area of Valencia.”  The State Department also reported that the CICPC used “source information and wiretaps” to immediately “identify the individuals responsible and and the location where Ramos was being held.” This information allowed CICPC to “act quickly and immediately” and begin planning its rescue mission.  State reports that approximately 300 CICPC officials worked on the case.  Hugo Chavez, himself, had repeatedly called the CICPC director demanding updates, and personally authorized the search and rescue mission.

After 50 hours in captivity, Venezuelan commandos raided the building he was being held and exchanged gunfire with his captors for –according to Ramos– as long as fifteen minutes.  Finally Ramos was rescued, and was returned at 3:0o AM to a celebrating crowd at his mother’s house in Valencia.

Ramos, at CICPC headquarters in Valencia on November 12, 2011. Courtesy, Associated Press.

Ramos, at CICPC headquarters in Valencia on November 12, 2011. Courtesy, Associated Press.

“Thank God, I’m alive and here at home…I thank you for everything. I don’t have words to express all that I feel, and how thankful I am for all your help.  Thank you, for real.  I really love you,” Ramos told the crowd.

According to the State Department cable, based on US Embassy contacts with Venezuelan law enforcement and media reports, “The kidnapping ring responsible for Ramos’s abduction does not appear to have been highly sophisticated.  The kidnappers may have believed Ramos would be an easy target and perhaps underestimated the international media attention” his kidnapping would generate.

The embassy was correct.  Ramos –who hit .267 with 15 home runs in 2011–  was a beloved member of the Washington Nationals, and fans throughout the Washington, DC area, United States, and world closely watched for any updates on his plight.  Distraught National Fans held a vigil at Nationals Park.  It is likely the outpouring of Nationals and American, Venezuelan, and international baseball fans contributed to the catcher’s release.  He remains a highly-productive and much loved player on the Washington Nationals.

Washington Nationals fans gather for a vigil at Nationals Park on xxxx. Courtesy SB Nation.

Washington Nationals fans gather for a vigil at Nationals Park on November 11, 2011. Courtesy SB Nation.

But the State Department cable does not close the case on Wilson Ramos’s kidnapping.  After his return, questions began to emerge about the exact nature of the crime.  A February 2012 Sports Illustrated article  raised the possibility that Ramos may have been kidnapped because “he chased the wrong woman.”  The same article also speculated that Detroit Tigers star Miguel Cabrera secretly paid the ransom to bring Ramos home.  Finally, Sports Illustrated posited that to save face, the Venezuelan authorities may have arrested six people with no actual relation to the kidnapping.

Ramos and his bobblehead, which was release by the Nationals during the 2014 season, three years after his kidnapping and release.

Ramos and his bobblehead, which was release by the Nationals during the 2014 season, three years after his kidnapping and release.

The declassified cable, written before the Sports Illustrated article was published, does not answer any of these theories.  It does, however offer an additional one: that the FARC, a Colombian guerrilla movement, may have been behind the kidnapping.  The cable reports that “in his public statements Ramos claimed that two abductors spoke with Colombia accents and spoke of a ‘la guerilla.'”

The cable also raises more questions.  After its speculation on the FARC, a substantial section of the cable has been redacted on claimed “national security” grounds , leaving the public to wonder which aspect of the Wilson Ramos kidnapping still remains hidden.

Of course, the National Security Archive has appealed this redaction.

xxxx

“Good police work leads to release of Washington Nationals catcher Wilson Ramos”

What The National Archives Can Do for *Truly* Open Government

March 31, 2016
"What is past is prologue" Not "What is past is prologue, if unclassified."

“What is past is prologue” Not “What is past is prologue, if unclassified.”

The National Archives and Records Administration is accepting comments on what people think should be in their next Open Government Plan.  NARA has done a very good job improving its services to greater benefit the public over the last few years.  This includes expanding its easy-to-use online catalog (especially the user annotations and tagging!) and establishing the History Hub, a type of message board where NARA employees quickly field queries from the public.  Other federal agencies would do very well to follow NARA’s lead in encouraging and expanding public engagement.

While the innovations described above are valuable and necessary, the actual, physical act of providing the public access to records that were once classified or unavailable remains the essence of Open Government. The comments and suggestions below from the National Security Archive therefore focus on what needs to be a primary focus of the Open Government Plan — declassification.

Ramp Up and Expand the National Declassification Center

The National Declassification Center must continue improving its release rate of declassified documents to as high as possible; it is not yet “releasing all it can.”  The Center has clearly made gains —not least of which is “indexing on demand,” where the NDC provides records that were previously inaccessible to researchers  within days— but to become President Obama’s successful flagship initiative, the NDC must continue to improve.  As the Public Interest Declassification Board has recommended, “wasteful, expensive” pass fail review and unnecessary equity referrals need to end as soon as possible.

NDC release rates of historic documents (right chart) are lower than the release rate of current documents due to equity re-reviews and page level declassification.

NDC release rates of historic documents (right chart) are lower than the release rate of current documents due to equity re-reviews and page level declassification.

survey by the Society for Historians of American Foreign Relations confirms widespread desire for more of a NARA-led focus on promoting efficient and credible declassification.  Seventy percent of 784 researchers surveyed described the importance of declassified documents to historical research as “very important and indispensable,” another fourteen percent described declassified documents as “important and necessary.” But twenty eight percent of the respondents described the availability of declassified documents at NARA as “very worrisome” or “disappointing.”

The National Archives and National Declassification Center should work to be standard-bearers of the “3.1 (d) Public Interest Test.” Section 3.1(d) of Executive Order 13526 is the provision that allows agencies to declassify documents even if they are technically “properly classified” –like the Pentagon Papers or the the History-101 fact that there were Jupiter missiles in Turkey during the Cuban Missile Crisis.

To do this, NARA’s Open Government Plan should formally adopt the Director of National Intelligence James Clapper’s and DNI General Counsel Bob Litt’s instruction to declassify historic documents even when they may be technically “properly classified.”   Two Sunshine Weeks ago, Litt stated that those with classification and declassification authority must ask themselves “not can we classify, but should we?”  Litt pointed to Section 3.1 (d) of the Executive Order on Classification 13526, and claimed that declassifiers of historic documents should already be using this authority.  In practice, however, they are not.

Section 3.1 (d) states: “In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified.  When such questions arise, they shall be referred to the agency head or the senior agency official.  That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”

Perhaps as helpful as any of its recommendations, the PIDB has “lifted the curtain” on the convoluted, “laborious,” “unsustainable,” re-review process that documents at the National Declassification Center are herded through.  The National Security Archive has long called for a simplified, single review of these 25-plus-year-old documents.

Perhaps as helpful as any of its recommendations, the PIDB has “lifted the curtain” on the convoluted, “laborious,” “unsustainable,” re-review process that documents at the National Declassification Center are herded through. The National Security Archive has long called for a simplified, single review of these 25-plus-year-old documents.

The National Declassification Center’s still too low but rising declassification rate of 59 percent for documents 25 years old or older is an indicator of over-classification and under-reliance of the “public interest declassification clause” at NARA itself.  NARA’s next Open Government Plan could remedy this problem by establishing a procedure so that declassifiers at NARA, including the National Declassification Center, can easily request that EO 13526 section 3.1 (d) be used to declassify technically “properly” classified information that is in the public interest and no longer needs protection.

Declassify the Presidential Libraries

After the National Declassification Center has established its bona fides of as having the highest declassification rate of any entity in the federal government, it should focus on ending the backlog at the Presidential Libraries. Currently when a user submits a FOIA to the Libraries, they must wait (often years) only to be told that the documents they requested are classified and need to be requested again under Mandatory Declassification Review (MDR), which also often takes years!

The NDC is nearing the perfect position to systematically and proactively declassify the documents of all Presidential Libraries without forcing customers to submit painstaking FOIA and MDR requests.

NARA has spent great effort asking the public which documents it should prioritize the declassification of.  The answer is the highest level documents, the documents at the Presidential Libraries.

Additionally, I suggest that Presidential Libraries should constantly update their finding aids online, providing customers with exact data on which collections are now open, which are still secret, and when the public will likely be allowed to access them.

Celebrate the Release of the Final JFK Assassination Records

NARA’s next Open Gov plan should herald and celebrate NARA’s role in finally releasing the remaining 41,000 JFK assassination documents.  NARA should frame the issue not so much as a legal requirement, but as celebration that it is finally able to release these extremely-frequently requested documents to the public.  NARA should also point out that many of the records released under the JFK Assassination Records Act could have been withheld as “properly classfied” under the current classification regime.  Their release (and similar releases by the  the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group) show that many historic records that are technically classified can be released to the public with great benefit and minimal harm.

As it celebrates the final release of the JFK Assassination records, NARA’s Open Government Plan would also do well to reexamine some of the recommendations made by the Assassination Records Review Board, including  the fact “that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task.”

Call the Torture Report What It Is: a Federal Record

Finally, the next Open Government Plan should establish the mechanism for the Archivist of the United States to use the power granted to him by the Presidential and Federal Records Act Amendments of 2014 to “direct and effect the transfer of records of a Federal agency determined by the Archivist to have sufficient historical or other value to warrant their continued preservation by the United States Government to the National Archives of the United States.”

As the National Security Archive has written, it is extremely troubling that the Archivist has not already done this for Senate Intelligence Committee’s full report on the Central Intelligence Agency’s use of torture.  According to a November 5, 2015 letter written by Senators Patrick Leahy of Vermont and Dianne Feinstein of California, “personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the study constitutes a federal record under the Federal Records Act because the FOIA case is pending.”

Even if it cannot currently be declassified, the Senate Report on Torture –which was transferred from the Senate to executive branch agencies– is clearly a federal record, and, more than that, an important record of the history of the United States.

The Presidential and Federal Records Act Amendments of 2014 explicitly granted the Archivist the power to declare documents like this federal records (even if they cannot currently be released to the public).  He should do the right thing, establish the authority of the National Archives to use this power, and declare the Torture Report a federal record –even if it complicates a DOJ FOIA case.

Without this act, many will question the sincerity of the National Archives’ commitment to the essence of truly Open Government.

The National Archives Should Establish Itself as the Principled Leader on Declassification

The National Archives is America’s largest repository of classified documents, and is also the institution best situated to force the enactment of President Obama’s Open Government classification reforms –described in both Open Government Partnership National Action Plans, his Executive order on Classification, and his Memo establishing procedures at the National Declassification Center.

NARA is also home to the Sunlight-promoting Office of Government Information Services, Information Security Oversight Office, and Interagency Security Classification Appeals Panel –which overrules agency classification decisions in over 68 percent of its cases.

The US National Archives has a major role to embrace in improving the declassification system in America.  It should use its next Open Government Plan to establish itself as the federal government’s principled leader on declassification.

Privacy Oversight Chair Steps Down Two Years Early, ODNI Adamant Intel Sharing Plan Doesn’t Violate 4th Amendment, and More: FRINFORMSUM 3/31/2016

March 31, 2016
David Medine Chairman, Privacy and Civil Liberties Oversight Board. Government photo.

David Medine
Chairman, Privacy and Civil Liberties Oversight Board. Government photo.

David Medine, chairman of the Privacy and Civil Liberties Oversight Board (PCLOB) – an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties – is stepping down two years before the end of his contract for a position in the private sector. PCLOB has made a number of important contributions to the surveillance debate, including last year publishing a chart “on how U.S. intelligence agencies use a Reagan-era executive order [12333] to collect Americans’ private information,” that shows most agency guidelines are woefully outdated. “Most agencies have not revisited their handling of data collection since the early 2000s, and in some cases not since the 1980s.” A 2014 PCLOB report found that the National Security Agency’s (NSA) surveillance of foreign communications is lawful, but that elements of Section 702 come “close to the line” of being unconstitutional.

The Washington Post’s Ellen Nakashima reported in June 2015 that Republicans on the House Intelligence Committee advanced a provision to the 2016 intelligence authorization bill that would block PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by Medine arguing that 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.”

Director of National Intelligence (ODNI) James Clapper recently responded to a March 21 letter from Representatives Ted Lieu (D-Calif.) and Blake Farenthold (R-Texas), which voiced concerns that a proposed intelligence sharing plan would “violate Fourth Amendment privacy protections because the collected data would not require a warrant before being searched for domestic law enforcement purposes.” Clapper assured the representatives that the NSA’s plan of sharing “unevaluated signals intelligence” with other agencies would be lawful and not violate privacy rights of US citizens.

ODNI General Counsel, Robert S. Litt.

ODNI General Counsel, Robert S. Litt.

ODNI General Counsel Bob Litt built on Clapper’s arguments in a recent article for Just Security. Litt says the proposed changes do “not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes.”

Steve Aftergood reports that the Obama administration has begun its second Fundamental Classification Guidance Review “in an effort to eliminate obsolete classification requirements and to reduce national security secrecy.” The first review, which took place from 2010-2012, reduced the DOD’s non-compartmented security classification guides by 20%. Aftergood notes that environmental changes, congressional disclosures, FOIA requests, and leaks can all make even good classification guidance obsolete; “Faced with this growing disconnect between a realistic threat appraisal and the information security response, the Fundamental Classification Guidance Review represents the secrecy system’s own attempt at self-correction.”

How do you prevent a cyber “Pearl Harbor”? This is the question former NSA head Keith Alexander left open-ended in a 2012 document, in which he noted “Adversaries are only 12-18 months away from having the capability to conduct a cyber Pearl Harbor against the U.S.” This intriguing record is just one of many available in the National Security Archive’s newly-launched Cyber Vault, an online resource documenting various aspects of US government cyber activity, including hacking and defenses against hacking, cyber intelligence, and cyberwar.

cybervault

Another gem from the Vault is an October 2011 report authored by the National Counterintelligence Executive on Foreign Spies Stealing US Economic Secrets in Cyberspace. This report, produced by an ODNI component, consists of three major sections. One is the vulnerability of US technologies and trade secrets to cyberspace operations and the appeal of cyberspace collection. Another examines the threat from specific collectors, including Russia, China, and US partners. The third provides an outlook for the future, divided between sections on “near certainties” and “possible game changers.”

Directed by Jeffrey T. Richelson, an international expert and widely published author on intelligence and national security issues, the Cyber Vault project will add to its holdings on a regular basis. All materials will be fully searchable and permanently stored on the project site.

The FBI submitted a classified declaration to a federal judge in connection with a Vice News FOIA lawsuit for records concerning Hillary Clinton’s email that addresses, among other things, why the bureau can’t reveal any details about its investigation into Clinton’s email usage. The FBI’s FOIA chief, David Hardy, submitted a separate public declaration noting that, while the FBI has a number of exchanges with the State Department concerning Clinton’s email and server arrangement, any release would adversely affect the FBI’s investigation. The FBI also requested that the court dismiss Vice’s lawsuit “on grounds that the documents it does have about Clinton’s private email server are located in files pertaining to a pending investigation that is exempt from disclosure because their release would interfere with active law enforcement proceedings.”

The FBI currently has dozens of personnel working on the investigation, which The Washington Post reports has accelerated in recent months to “avoid the possibility of announcing any action too close to the election.”

The Post also notes Judge Emmet G. Sullivan’s growing frustration with the State Department’s response to a separate FOIA lawsuit for records related to Clinton in a long and worthwhile read on the evolution of the email fiasco. In February Sullivan allowed Judicial Watch to pursue discovery of Clinton’s aides regarding her email use after finding that there was “reasonable suspicion” that Clinton and her aides tried to evade FOIA; discovery is an uncommon practice in FOIA lawsuits, but one that can include legal depositions. Sullivan said, “We’re talking about a Cabinet-level official who was accommodated by the government for reasons unknown to the public. And I think that’s a fair statement: For reasons heretofore unknown to the public. And all the public can do is speculate,” going on to say “This is all about the public’s right to know.”

U.S. District Court Judge Royce Lamberth followed Judge Sullivan’s example and this week granted Judicial Watch discovery in another suit in pursuit of “details about how Hillary Clinton’s private email account was integrated into the State Department recordkeeping system and why it was not searched in response to a Freedom of Information Act request.” Lamberth cited the government’s wrongdoing and bad faith in his ruling, and chastised the “constantly shifting admissions by the Government and the former government officials.”

Radovan Karadžić (left) with former Bosnian Serb military leader Ratko Mladić, who is currently on trial before the ICTY. AP photo.

Radovan Karadžić (left) with former Bosnian Serb military leader Ratko Mladić, who is currently on trial before the ICTY. AP photo.

Radovan Karadžić, the former President of Republika Srpska (RS) and Supreme Commander of its armed forces, was recently convicted of genocide, crimes against humanity, and violations of the law of war by the International Criminal Tribunal for the former Yugoslavia (ICTY). The National Security Archive’s Genocide Documentation Project worked tirelessly for three years to assemble a cohesive collection of declassified documents to map the atrocities committed in Srebrenica, Bosnia and Herzegovina in July 1995. Now 70 years old, Karadžić was sentenced to 40 years’ imprisonment for the war crimes committed by the Serb forces he led in the conflict in Bosnia from 1992 to 1995.

When asked how dozens of trips in a Pentagon-provided car service to and from restaurants helped accomplish the Defense Intelligence Agency’s (DIA) mission, former DIA deputy director David Shedd explained to the Defense Department inspector general that “the food at the DIA cafeteria was poor.” The DOD IG report – obtained by The Washington Post under the FOIA – found Shedd abused a Pentagon vehicle service to the point it “could be characterized as a personal limousine service based solely on reasons of rank, position, prestige or personal convenience.” Shedd, a career-CIA officer who was hired by the DIA to improve its human intelligence capabilities, brushed the report off as “an IG run amok.”

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This week’s #tbt pick is a December 2000 memo obtained and published by the Archive that shows the NSA has been pushing to “rethink and reapply” its application of the Fourth Amendment since before 9/11. This was necessary, it argued, to attain a “powerful, permanent presence on a global telecommunications network.”

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Happy FOIA-ing!

The National Security Archive Launches the “Cyber Vault”

March 30, 2016

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New Cyber Vault Will Acquire and Publish Primary Documents on All Aspects of Cyber Activity 

he United States Government-Wide Cyber Counterintelligence [CI] Plan.

The United States Government-Wide Cyber Counterintelligence [CI] Plan.

“Trusted insiders” were a large point of concern in 2008’s The United States Government-Wide Cyber Counterintelligence [CI] Plan, a heavily-redacted Top Secret/SI/NOFORN document authored by the National Counterintelligence Executive, the Office of the Director of National Intelligence, and the Justice Department. Two years before Chelsea Manning and WikiLeaks made headlines, the Cyber CI Plan — which was obtained through a Freedom of Information Act (FOIA) request — notes that, “Trusted insiders can steal information electronically or facilitate remote access to unprecedented amounts of data and they may be ideally positioned to inflict devastating damage to U.S. Government networks through espionage and/or sabotage.”

Privacy protections were also a stated priority; the document makes clear that to protect US citizens’ privacy and civil liberties, “each participating organization…will consult with offices of general counsel and privacy and civil liberties officers, as appropriate, to ensure compliance with law and with Attorney General approved guidelines safeguarding U.S. persons.”

The core of the prescient document discusses the six objectives of the government’s Cyber CI program. Two of the objectives are redacted from the document; the four objectives that are disclosed include: detecting, deterring, disrupting and mitigating internal and external cyber threats through defensive counterintelligence; strengthening collaboration on cyber issues by, among other things, sharing CI information at the lowest classification level possible; conducting all-source counterintelligence analysis; and establishing and expanding cyber counterintelligence education awareness programs.

The 2008 Cyber CI plan is just one of the newly-published documents researchers can find in the National Security Archive’s Cyber Vault – an online resource documenting various aspects of US government cyber activity, including hacking and defenses against hacking, cyber intelligence, and cyberwar. The Vault also includes documentation on foreign government and international organizations’ cyber activities. Currently numbering more than 150 curated items, the list will grow with new additions on a weekly basis.

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Search the Cyber Vault Library Here.

The documents in the Vault’s holdings include US government documents that have been pried loose and made publicly available thanks to systematic use of the FOIA and Mandatory Declassification Review process by Archive staff  – led by Dr. Jeffrey Richelson, who directs this new project. Additional primary sources come from industry, academia and other cyber actors – all materials are searchable in this robust online publication in permanent open access formats.

Other documents found in the Vault include a set of Top Secret/COMINT/NOFORN April 12, 2013, talking points, entitled, “Topic: Iran – Current Topics, Interaction with GCHQ,” prepared for National Security Agency (NSA) head Keith Alexander. The talking points, which note that “our posture on Iran will serve us well going into any crisis or Event,” were created before Alexander’s meeting with the head of the United Kingdom’s Government Communications Headquarters, and includes a section devoted to Iranian cyber-attacks on US financial institutions and Saudi Arabian oil company, Aramco. Regarding the Iranian attack on Aramco, the document says that while it was the first such attack Iran carried out, that Iran “demonstrated a clear ability to learn from the capabilities and actions of others.”

An earlier unclassified memorandum, dated March 23, 2012, and authored by Alexander, is his strategic assessment for operating in cyberspace and “Preventing a Pearl Harbor Environment.” In the memo Alexander provides his perspective concerning the prospects of a cyber “Pearl Harbor” and discusses the risks of failure in the cyber domain, his assessment of why the US could not prevent a major cyber-attack, what an adversary would need to conduct such an attack, and what would be required to prevent a major attack. Alexander argues that the US is not currently prepared to prevent a major cyber-attack, noting later “Adversaries are only 12-18 months away from having the capability to conduct a cyber Pearl Harbor against the U.S.”

"Thinking Out Loud About Cyberspace"

“Thinking Out Loud About Cyberspace”

Another secret document, an article entitled “Thinking Out Loud About Cyberspace” written by senior NSA official William Black and published in Cryptolog, XXIII, 1 (Spring 1997), notes that the NSA was assigned the mission of computer network attack in March 1997, and argues that the world was on the verge of a new age — “the information age” — and that the future of war would be warfare in cyberspace. The article also expresses confusion that the public could see the government as a threat; “Specifically, the focus is on the potential abuse of the Government’s application of this new information technology that will result in an invasion of personal privacy. For us, this is difficult to understand. We are the ‘government,’ and we have no interest in invading the personal privacy of U.S. citizens. Regardless, the public’s concerns are real and have an impact upon us.”

Read more about the Vault – which is generously funded by the William and Flora Hewlett Foundation  – here, and search the growing Cyber Vault Library here.

Bosnian Serb Leader Karadžić Convicted of Genocide; National Security Archive Document Collection Maps Atrocities

March 24, 2016

By Sarah Chaney Reichenbach

Radovan Karadžić (left) with former Bosnian Serb military leader Ratko Mladić, who is currently on trial before the ICTY. AP photo.

Radovan Karadžić (left) with former Bosnian Serb military leader Ratko Mladić, who is currently on trial before the ICTY. AP photo.

The Archive’s Genocide Documentation Project worked tirelessly for three years to assemble a cohesive collection of declassified documents to map the atrocities committed in Srebrenica, Bosnia and Herzegovina in July 1995. Today, Radovan Karadžić, the former President of Republika Srpska (RS) and Supreme Commander of its armed forces, was convicted of genocide, crimes against humanity, and violations of the law of war by the International Criminal Tribunal for the former Yugoslavia (ICTY). Now 70 years old, Karadžić was sentenced to 40 years’ imprisonment for the war crimes committed by the Serb forces he led in the conflict in Bosnia from 1992 to 1995.

While the Karadžić will most likely live out the remainder of his years imprisoned in the Hague, critics argue the sentence is far too short for the number killed under his leadership. Among the charges brought against him, Karadžić was convicted of genocide for the 1995 Srebrenica massacre, which culminated in the slaughter of more than 8,000 Muslim men and boys in the United Nations-designated “safe area.” He is also being held responsible for the 1,425-day siege of the Bosnian capital of Sarajevo, the longest in modern history, which led to the death of over 11,000 Bosnians. Karadžić’s 40-year sentence is shortened by the eight years he has already served since his arrest. This amounts to a 32-year sentence for the death of nearly 20,000 people, or about 15 hours served for each victim.

Since his arrest in 2008, Karadzic has proclaimed his innocence, arguing that rogue individuals outside of his control committed atrocities for which he should not be held responsible. It has been the prosecution’s responsibility to “draw a direct line of culpability from the men who committed crimes on the ground to [Mr. Karadžić] in person.”

The National Security Archive’s Genocide Documentation Project’s Srebrenica collection contains documents from multiple sources alluding to Karadžić’s involvement in the war crimes carried out by his followers, including some that speculate why he might maintain his innocence in the face of an eight-year trial.

A September 5, 1995, secret intelligence report from the CIA explains perhaps why Karadžić denied responsibility for atrocities committed during the war:

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A September 5, 1995, secret intelligence report states that Karadžić’s “identification with Serb martyrdom” does not necessarily indicate that his is “prepared to go down for the cause.”]

A sense of “victimhood” coupled with a rapid accumulation of power and resources indicated he was possibly not “prepared to go down” for the Serb cause, even after the end of the war and his indictment and arrest.

Documentary evidence speaks to the contrary of the denial of his responsibility. International leaders wrote many letters to Karadžić throughout the duration of the war, urging him to protect civilians and abide by international law and warning him of the consequences should he fail to do so.

One such letter, written on October 1, 1992, by Major-General Philippe Morillon, the acting commander of United Nations Protection Force (UNPROFOR) in Bosnia, expresses his disappointment, having “received the dismaying news that [Karadžić’s] forces have proceeded with the forced expulsion of nearly three hundred persons from Grbavica.”

A June 15, 1995 letter from UN officials reprimands the actions of Karadžić’s forces interfering with the distribution of humanitarian aid.]

A June 15, 1995 letter from UN officials reprimands the actions of Karadžić’s forces interfering with the distribution of humanitarian aid.]

Another letter, sent to Karadžić on June 15, 1995, (approximately one month before the Srebrenica massacres took place) by UN officials Sadako Ogata and Yasushi Akashi, expressed concern over the conditions in Bosnian towns “[d]ue to obstructive actions by forces under [his] control.” The letter condemned his force’s treatment of Bosnian civilians and warned that he was expected to ensure the compliance of those under his authority with international agreements. They added, “We refuse to accept lame excuses, false allegations and suspicions or reference to uncontrolled elements to justify interference with free movement of humanitarian goods and staff.”

The most damning comments of Karadžić are recorded first-hand in the diaries of Bosnian Serb military leader Ratko Mladić. In one translated excerpt from May 28, 1993, Mladić wrote that Karadžić was recorded as saying, “We do not believe that anything except a defeat of one of the sides can end the war.”

Karadžić and Mladić were indicted by the ICTY in 1995 and today, over twenty years later, one of them was brought to justice. UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein describes the verdict as “hugely significant” and adds that the trial “should give pause to leaders across Europe and elsewhere who seek to exploit nationalist sentiments and scapegoat minorities for broader social ills.” Whether or not the conviction will support reconciliation efforts in Bosnia, however, remains to be seen.

The Genocide Documentation Project, launched in January 2013 in partnership with the United States Holocaust Memorial Museum, explores the failures of the international community to prevent or effectively respond to past cases of genocide. Through detailed case studies, the project’s research seeks to inform international policies regarding the prevention of and response to genocide and mass atrocity. By examining the role of the international community in past incidents of genocidal violence, these case studies help shape the views of a new generation of policymakers both within the United States and around the world. 

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