FOIA Bills Reintroduced in Both House and Senate, Modest Changes to Surveillance Practices Announced, and Much More: FRINFORMSUM 2/5/2015
Representatives Darrell Issa (R-Ca) and Elijah Cummings (D-Md), and Senators Patrick Leahy (D-Vt) and John Cornyn (R-Tx), are renewing a bipartisan, bicameral effort to strengthen the FOIA after similar legislation died by the end of last year’s congressional session. As the Archive’s Nate Jones points out, both bills contain improvements that will help ordinary requesters by, among other things, reining in the oft-abused b(5) exemption, fixing fee issues, strengthening the FOIA ombuds office, and would help get more documents to more requesters more quickly. Senate Judiciary Chairman Chuck Grassley (R-Ia) has already placed the Senate bill on this week’s committee calendar, and transparency advocates are both hopeful and heartened by the bills sponsors’ “continued championship of openness and accountability in government.”
The Obama administration recently announced modest changes to the Intelligence Community’s (IC) surveillance practices in an attempt to promote privacy and civil liberties. The changes – announced a year after the President said he would end the bulk surveillance programs revealed by National Security Agency (NSA) contractor Edward Snowden – include placing a three year time limit on the gag orders contained in the FBI’s national security letters (NSL) – whose lack of judicial oversight has been a longstanding concern for privacy advocates, new restrictions for warrantless searches conducted under Section 702 of the Foreign Intelligence Surveillance Act, and new mandates that evidence collected under 702 cannot be used as evidence in court – unless the attorney general deems the case has “national security implications or [for] certain other serious crimes.”
While many privacy advocates note the changes are in the right direction, some argue the stipulations’ vague wording provides little concrete improvement to current collection methods. Gregory Nojeim, senior counsel for the Center for Democracy & Technology, points out the NSL concessions still do “not meet the constitutional standard” and that the FBI should be required to prove a likelihood of harm exists in court before issuing an NSL. The Brennan Center for Justice’s Liberty and National Security Program director, Elizabeth Goitein, notes, “we still have massive amounts of Americans’ communications being collected under these foreign intelligence authorities and searched without a warrant.” Senator Ron Wyden (D-Or) echoed these concerns saying, “When it comes to reforming intelligence programs and protecting Americans’ privacy, there is much, much more work to be done.”
One distinctly notable achievement in the announcement was extending the same privacy rights to foreigners as Americans by banning intelligence agencies “from disseminating information about foreigners to other countries’ intelligence agencies without considering their privacy.” Privacy and Civil Liberties Oversight Board (PCLOB) chairman David Medine noted the unprecedented nature of this decision, saying “There’s no country on the planet that has gone this far to improve the treatment of non-citizens in government surveillance. That alone is remarkable after the events of the last year and half because in most countries non-citizens are fair game.”
Obama’s announcement of tweaks to IC collection practices comes months before Section 215 of the Patriot Act, which the NSA cites to justify its data collection, is set to expire. Yet Robert Litt, the Office of the Director of National Intelligence general counsel, said this week that there is “no backup plan if Congress didn’t reauthorize [Section 215] allowing the bulk collection of telephone records by its June expiration date.” Despite the lack of an alternative, a recent PCLOB report argues it is “now well past time for the administration to have developed alternative procedures and alternative relationships with the telephone companies to stop the daily flow of data to the government.”
The NSA’s own director of privacy and civil liberties, Rebecca Richards, recently appeared on The Cyberlaw Podcast cautiously suggesting that whatever the fate of Section 215 is, the NSA should stop relying on secret or “cute legal interpretations” of the law to carry out its surveillance. While it’s notable a NSA official has gone on the record insinuating the agency’s practices are inconsistent with privacy rights, she was criticized for failing to address the agency’s breaking of “privacy rules or overstep[ing] its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.” Senator Chuck Grassley (R-Ia), for example, is still waiting for the agency to explain how it handled employees who abused their surveillance capabilities by spying on their lovers’ phone records.
Information regarding the building of Afghan security forces – a $65 billion endeavor – has been available for the last six years, but a recent query from the command’s inspector general revealed the sudden classification of much of this information – allegedly because the information posed a grave security risk if it remained available. After receiving intense criticism over its classification of previously available information – including how much money the US spent feeding and teaching Afghan forces to read and write –, the Afghanistan military command has backtracked and is now declassifying some – about 90% – of the material.
The ACLU recently filed an emergency motion to block Sen. Richard Burr’s (R-NC) efforts to repossess copies of the Senate Intelligence Committee’s report on the CIA’s torture program. Last month Burr, in a move many believe is an attempt to prevent the report from being released in response to future FOIA requests, sent a letter to the White House requesting that all federal agencies and departments in possession of the report return it to the Committee immediately, arguing the report is “a committee sensitive document” and “should not be entered into any executive branch system of records.”
The Pentagon recently released emails top brass exchanged with Tampa socialite Jill Kelly in response to a FOIA request. Kelly’s relationship with General David Petraeus sparked jealousy in Petreaus’ biographer and mistress, Paula Broadwell, who derided Kelly in anonymous emails to military officials. The anonymous emails spawned an FBI investigation, which revealed the Petraeus-Broadwell affair, and ultimately led to Petraeus’ forced retirement. Last month the the FBI and DOJ prosecutors recommended bringing felony charges against Petraeus for giving classified information to Broadwell over the course of their relationship, forcing Attorney General Eric Holder to decide whether or not he will seek an indictment of the retired four-star general.
National Declassification Center (NDC) director Sheryl Shenberger recently posted an updated list of prioritized NDC projects for final declassification. While the status report on the records researchers chose from a select list to jump to the head of the queue for final processing is useful, it would be more useful if the full list of documents reviewed for declassification but not for final processing was also released so researches can request further prioritizations. Hopefully the NDC will also begin addressing the problems of equity re-reviews and the ineffectiveness of pass/fail determinations in addition to prioritizing high interest document sets.
The National Security Archive recently published Ambassador Prudence Bushnell’s never-before-seen personal notebooks, which she generously donated to the Archive. The notebeooks help fill the void left by agencies –especially the Clinton Library and the Department of Defense– that have yet to release hundreds of important documents on the Rwandan genocide, and help illustrate the complexities of the decision-making processes, the relationships between international parties, and Bushnell’s own interactions with on-the-ground actors in the conflict:
This week’s #tbt document pick is chosen with the Archive’s recent posting of a compilation of over 50 documents concerning US intelligence collection and analysis on the Soviet space program in mind. This week’s pick is the Air Force Ballistic Missile Division’s April 1960 study whose objective was to “determine an economical and sound approach for establishing a manned intelligence observatory on the moon.” The study states that decisions concerning the types of strategic systems to be placed on the moon (including a Lunar Based Earth Bombardment System) could be safely deferred for three to four years.
This week’s lockstep introduction of bipartisan Freedom of Information Act bills in the House (H.R 653) and the Senate (S 337) is a good sign for those who want the release of more government documents, more quickly, to more people.
The Senate bill was introduced by Senator John Cornyn (R-Tx) and cosponsored by Patrick Leahy (D-Vt) and Charles Grasssley (R-Ia), the ranking member and chair of the Senate Judiciary Committee. It is virtually identical to the bill that passed the Senate via unanimous consent last session. (By my reading the only minute change was a clarification that documents must be posted online when they are requested “3 or more” times, rather than “not less than 3.”)
The House bill was introduced by Representative Darryll Issa (R-Ca) and consponsored by Elija Cummings (D-Md) and Mike Quigley (D-Il). It, on the other hand, is clearly stronger than the House bill that passed 410-0 last session.
The most prominent addition to the House bill is language reforming the oft-abused Exemption 5 which allows for the withholding of any “interagency or intra-agency communication,” including draft documents. The previous House bill did not alter this exemption. The new House language changes Exemption 5 so that, “records that embody the working law, effective policy, or the final decision of the agency” (such as Office of Legal Council memos) cannot be withheld. This bill also mirrors the Senate bill in ensuring that agencies cannot use Exemption 5 for information that is older than 25 years. (The Presidential Records Act forbids the use of Exemption 5 for all documents beginning 12 years after the president leaves office.)
The House bill also has welcome language instructing (but not enforcing) agencies to “make information public to the greatest extent possible through modern technology.” By my reading, this means that all agencies should match the practices of the State Department, National Archives, agencies participating in FOIA Online (including the Department of Commerce and Environmental Protection Agency) and proactively post the vast majority of FOIA releases online. Though past agency FOIA performance shows this is far from guaranteed.
One more bit of language the House bill has that I like is its mandate that agencies’ FOIA processing has “standards for interoperability” in their FOIA processing software. Outdated proprietary software and legacy contracts of FOIA processing programs have led to a profound non-functionality of FOIA technology. The opensource wizzes at 18F are also aware of this problem and working to fix it.
In what I believe to be an astute political move, the Senate re-introduced last session’s bill that 100 Senators agreed upon. And Senator Grassley, Chairman of the Senate Judiciary Committee, is moving quickly with it, placing it on the Judiciary Committee’s agenda for (tomorrow!) February 5th. There is a possibility it will be voted out of Committee before the end of the month.
Though this is a quick move, I don’t think it is a rash one. Last session Senators Cornyn and Leahy worked agonizingly hard to secure support and assuage worries over FOIA from each Senator (including the removal of a public interest balancing test for Exemption 5 withholdings). I think it’s the smart move not to reopen this can of worms and work with Senators to re-pass the good FOIA bill they supported last session.
There is at least one provision in the Senate bill that House drafters would be wise to adopt in their (I suspect) more expansive Oversight and Government Reform committee amendments. That is something closer to the Senate’s langue on the “fee fix” issue.
When media, educational or scientific institutions submit FOIA requests, the majority of their fees are always waived. This is not the case for everyday requesters, who are often charged expensive “search and review” fees. The 2007 Open Government Act partially reduced these fees by mandating that a requester could not be charged fees if an agency missed the 20-day deadline to process the FOIA request.
Troublingly, however, agencies (ostensibly with DOJ support) have began successfully eluding this fee improvement simply by labeling requests as “unusual” and claiming that these “unusual” requests were unprotected. The Senate bill makes clear that “unusual” requests (that are fewer than 50,000 pages) get the standard FOIA extension of 10 days. After that an agency can only charge reproduction fees.
Other improvements that are in both bills include:
- Requiring agencies to update their FOIA regulations within 180 days after the passage of the bills. (Currently, over half of federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.)
- Codifying the presumption of openness, thereby requiring records be released, unless there is a foreseeable harm or legal requirement to withhold them. This language mirrors the Obama administration’s and the Department of Justice’s (non binding) instructions on FOIA.
- Improving public digital access to released records.
- And, strengthening and increasing the independence of the FOIA Ombuds Office, the Office of Government Information Services (OGIS). Senator Chuck Grassley once threatened to drive his car to the Office of Management and Budget to force the release of blocked FOIA Ombuds recommendations.
The way I see it, three hurdles remain before these bills become law. The first is passing out of both committees. Though, with previous bipartisan votes and the support of chairs and ranking members, passage out of committee before Sunshine Week (March 15) 2015 is not impossible. Look for a quick vote in the Senate and a bit more negotiation in the House.
The second hurdle will be reconciling Senate and House bills in conference. Last session, the strategy was for the House to adopt the Senate bill after the Senate added key House provisions in the Senate via amendment. This time, I suspect, the Senate and the House will pass their own bills and the differences will be ironed out in conference. Hopefully the strongest portions of both bills will make the final legislation. The Senate bill’s early introduction means that unless Majority Leader Mitch McConnell (R-Ky) obstructs it, it will only require 60 votes to become law, not the support of 100 senators that last session’s time constraints required.
The third and final hurdle will be getting House and Senate leadership to bring the final FOIA bills up for a vote. This is where covert lobbying by pro-secrecy government and private interests prevailed last session. This time, at least for now, leadership seems keen to support this bipartisan legislation. Speaker Boehner has pledged that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.” I predict Majority Leader McConnell will also allow a vote on FOIA reform.
Finally, the biggest advantage openness advocates have this time around is that those in favor of secrecy (and Janus-Faced supporters of open government) will have a much harder time running out the clock. Because these coordinated, bipartisan bills were introduced by Senators Cornyn, Leahy, Grassley, and Representatives Issa, Cummins, and Quigley extremely early in the session, opponents of FOIA reform will have a much harder time stalling or killing these bills.
By Sarah Reichenbach
The National Security Archive recently released Ambassador Prudence Bushnell’s never-before-seen personal notebooks from her critical work on the 1994 Rwandan genocide. After the genocide started, Bushnell was charged with pursuing a ceasefire through “diplomatic means” and her notebooks contain detailed notes from key phone conversations with leaders from both the Rwandan Patriotic Front (RPF) and Rwandan Government Forces (RGF). Bushnell’s personal records both help fill the void left by agencies –especially the Clinton Library and the Department of Defense– which have yet to release hundreds of important documents on the genocide, and help illustrate the complexities of the decision-making processes, the relationships between international parties, and Bushnell’s own interactions with on-the-ground actors in the conflict.
At the time of Bushnell’s notebooks, US strategy was to demand that both the RGF and RPF agree to a ceasefire in order to stop the killings. Bushnell urged both sides to agree to a ceasefire through numerous telephone conversations with RPF leader, Paul Kagame, and Rwandan government officials, General Augustin Bizumungu and Col. Theoneste Bagosora, the leader of the RGF who helped create the Interhamwe, a strongly anti-Tutsi minority militia and was indicted for playing a key role in the planning and execution of the slaughter of approximately 800,000 of Rwandan Tutsis and moderate Hutus. Some of the most fascinating and chilling portions of Bushnell’s notebooks include notes taken during her phone conversations with genocidaire Col. Bagosora.
In one conversation with Bagosora at the end of April 1994, several weeks after the genocide began, Bushnell demands an immediate halt to the massacres. Bagosora, however, tells Bushnell that he does not have the power to stop the killings and, as her notes read, that a “ceasefire does not work.” Bagosora argues that Rwanda is in the midst of a civil war over which he has no control. An Unclassified April 29th, 1994, Department of State cable describes Bagosora as saying the killings are “a spontaneous reaction by the population to the RPF offensive,” attempting to frame the genocide as an uncontrollable effect of RPF attacks instead of the carefully planned and orchestrated massacres of civilians by government forces they were.
In a 2013 interview, Bushnell, aware of the intent behind the perpetrators’ actions, further recounts her conversations with Bagosora:
“This is to Bagosora in the middle of the night. Stop the killing. And oh, Madame, you don’t understand, there is a civil war going on here, and we do not have the forces to stop the spontaneous uprising of the people, was how we called it. Well, at least stop the hate radio. Ah, mais Madame, we are a democracy. We believe in freedom of the press. That is how ridiculous or bizarre our conversation was.”
The April 29th cable further recounts the conversation and Bushnell’s response to Bagosora in which she told him the world does not accept the RGF’s claims, and that “in the eyes of the world, the Rwandan military engaged in criminal acts, aiding and abetting civilian massacres.” Bushnell reminds Bagosora of the Rwandan government’s prior commitments to implementing the Arusha Accords, the 1993 Rwandan peace agreement that aimed to end the civil war between the RGF and RPF, and Bagosora’s apparent unwillingness to end the massacres was in violation of those commitments. Bushnell’s comments are described in the cable as seeming to “take Bagosora by surprise and sobered him.”
In a 2013 interview with the National Security Archive, however, Bushnell recalls Bagosora’s reaction to her demands quite differently:
“In that conversation, I advised Bagosora that we would hold him personally accountable for what was happening and that the President knew about it…He said, ‘How nice of the President to be thinking of me.’”
Despite his confidence, Bushnell’s warnings proved correct and in 2008 Bagosora was convicted of conspiracy to commit genocide, genocide, complicity in genocide, and crimes against humanity in the International Criminal Tribunal for Rwanda (ICTR), receiving a life sentence for his crimes.
Bushnell’s contribution to the National Security Archive has greatly enhanced our understanding of the complex inner workings of the US government during the Rwandan genocide. Her willingness to share her personal accounts will help policy analysis and our understanding of genocide going forward. Hopefully Ambassador Bushnell’s valuable contribution to the historical record will also motivate federal agencies to act in accordance with open government principles and continue to add to the official record on this historically significant event.
Bushnell, Prudence. Oral History Interview, November 22, 2013, Washington, D.C., The National Security Archive.
FOIA Reform Hopes to Get Another Shot in 2015, Lynch Avoids Answering FOIA Questions During Senate Nomination Hearing, and Much More: FRINFORMSUM 1/29/2015
FOIA advocates are hoping for a better 2015 after the uncontroversial, bipartisan FOIA Improvement Act unceremoniously died at the end of last year’s legislative session – all because House Speaker John Boehner (R-Oh) failed to schedule a vote on it. Promisingly, Rep. Elijah Cummings (D-Md) announced he wants to pass FOIA reform “quickly” this year, and hopes to send FOIA reform legislation to the President by Sunshine Week, the national government transparency event that will take place this March. Citizens for Responsibility and Ethics in Washington’s Anne Weismann is hopeful that introducing the bill earlier in the legislative session will improve the bill’s chances of passing, and Sunlight Foundation’s Sean Vitka says “This time around, everyone is on notice. Last-second concerns — real or fabricated, national security or banking — shouldn’t be used as a stalling tactic designed to kill broadly supported, bipartisan legislation.”
Attorney General nominee Loretta Lynch was grilled by the Senate Judiciary Committee this week. Senator John Cornyn (R-Tx) asked Lynch both about the her current office’s poor FOIA performance and the Obama administration’s “presumption of openness,” and Lynch avoided making any clear statements on either. Lynch did say, however, that she believes the National Security Agency’s surveillance is “constitutional and effective.” Freedom of the Press Foundation co-founder Trevor Timm noted Lynch can immediately assuage transparency advocates’ concerns about her nomination “by dropping the Justice Department’s resistance to the FOIA lawsuits as soon as she is confirmed.”
Google recently disclosed internal documents showing the company gave the US government Gmail “account content” of three WikiLeaks journalists in response to an espionage investigation targeting WikiLeaks founder Julian Assange. The journalists – Sarah Harrison, Joseph Farrell, and Kristinn Hrafnsson – were only informed Google provided the government their “Gmail account content, metadata, subscriber information, and other content” in response to warrants issued in March 2012 on December 23, 2014, two and a half years after Google provided the government with the requested data. WikiLeaks lawyers argued the warrants were in violation of US federal privacy legislation, “which protects journalists and publishers from being forced to turn over to law enforcement their journalistic work product and documentary materials.” Google said the 2012 warrants were subject to secrecy orders, and they were only able to notify the targets once the gag orders were partially lifted.
Ex-CIA officer Jeffrey Sterling was found guilty this week of leaking classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to NYT reporter James Risen. The quick trial, long delayed by debates over whether or not the Justice Department would force Risen to testify, inevitably took less than two weeks –notably without Risen’s testimony.
Sen. Dianne Feinstein (D-Ca), former head of the Senate Intelligence Committee who spearheaded its report on the CIA’s torture program and publicly accused the CIA of spying on her staff, is damning a recent CIA panel that recommended no punishment of the CIA officers who spied on Senate staffers. The CIA Accountability Board, a taskforce hand-picked by CIA Director John Brennan, “cleared” the officials of any “wrongdoing,” concluding they acted reasonably in the face of a potential security breach. Feinstein, on the other hand, demanded there be accountability for the spying, and outlined 15 flaws with the Board’s findings, including that it contradicts the CIA’s own Inspector General report that found the agency officials improperly monitored Senate staff, and that “The CIA and the Committee exchanged formal, signed letters in 2009 establishing limits on the CIA’s access.”
A small, two pound drone recently made it past the White House radar system and Secret Service before ultimately crashing into a tree. The breach raises questions about the Secret Service’s ability to bring down similar devices, and comes on the heels of several significant White House security breaches. The drone – a “quadcopter” – was flown by an off-duty National Geospatial-Intelligence Agency employee.
Drug Enforcement Agency (DEA) documents recently disclosed through the FOIA to the ACLU reveal news of the second secret DEA program in as many weeks. The latest revelation shows the DEA “has initiated a massive national license plate reader program” that connects DEA license plate readers with local law enforcement agencies’ own plate readers around the country (a 2012 Police Executive Research Forum report found that 71% of all US police departments use automatic license plate tracking). According to one undated document, “there were more than 343 million records in the program’s database at one point,” and Customs and Border Protection (CBP) – a component of the Department of Homeland Security – collects data on “nearly 100 percent of land border traffic” and shares its data with the DEA. The revelation comes one year after the Department of Homeland Security (DHS) scrapped its own plan to build a national license plate tracking system to catch fugitive illegal immigrants after the Washington Post reported the program could “contain more than 1 billion records and could be shared with other law enforcement agencies, raising concerns that the movements of ordinary citizens who are under no criminal suspicion could be scrutinized.”
Last week, a year after President Obama promised changes to the government’s handling of Americans’ electronic communications collected and maintained by the National Security Agency (NSA), the White House abandoned plans for a non-governmental third party to hold the phone metadata collected by the agency. The administration did announce, however, that it is still considering a plan that would allow the telecommunications companies themselves to maintain the records rather than the NSA.
The Obama administration recently declassified two 2007 rulings issued by Judge Roger Vinson in response to an ongoing New York Times FOIA lawsuit. The documents show Vinson, who was then serving on the Foreign Intelligence Surveillance Court (FISA), ruled that the Patriot Act empowered the NSA “to collect foreigners’ emails and phone calls from domestic networks without prior judicial approval.” The rulings also shed light on the agency’s “secret moves” regarding the surveillance prior to Congressional approval in August 2007.
Federal judge John Gleeson of the US District Court in Brooklyn “heard a rare constitutional challenge” last week to the government’s warrantless wiretapping of a US permanent resident who pleaded guilty to terrorism charges in 2012. The Justice Department only revealed it had collected the defendant’s communications without a warrant last year under a new policy that requires such disclosures, prompting Judge Gleeson to rule that the defendant could withdraw his guilty plea.
This week’s #tbt document pick is chosen with the recent sentencing of two former Chilean intelligence officials for the 1973 murders of Americans Frank Teruggi and Charles Horman in mind. Teruggi, a student, and Horman, a journalist and filmmaker, were deemed subversives by the Chilean government and later killed in large part because of a “secret investigation” conducted by Ray Davis, a US Navy Captain commanding the US Military Group in Santiago. Davis was indicted for his role in the murders in 2011 in a Chilean court (the judge also requested Davis’ extradition from Florida where he was believed to be living in a nursing home, but his death in 2013 revealed he had been living secretly in Santiago). Today’s #tbt document picks are the key FBI memos that contain Terrugi’s address and requests for investigation into Terrugi based on his association with a West German political activist that were cited extensively in Davis’ 2011 indictment.
As demonstrators across Mexico take to the streets to protest the government’s involvement in the September 2014 disappearance of 43 students in Iguala, Guerrero, a case bearing many of the same grim hallmarks is getting renewed attention.
Today, in a new article for The Nation, I examine newly-declassified evidence of police involvement in the 2011 San Fernando massacre and what it all means for access to information on human rights cases in Mexico.
In August 2010, the Zetas criminal group abducted and killed 72 people pulled from buses traveling the highways near San Fernando, Tamaulipas, a town more than 1,000 kilometers northeast of Guerrero. The remains of 193 people were discovered buried in dozens of mass graves in the same part of the state the following April. Members of the Zetas and 17 San Fernando municipal police officers were arrested in connection with the 2011 disappearances and several were indicted. But additional details about the investigation remained under wraps until the Archive succeeded in forcing Mexico’s attorney general’s office to declassify a key document detailing the government’s early findings in the case.
As in the Iguala case, federal authorities suspected that local officials helped organize the killings. We now know that those early suspicions were well-grounded. Produced by the Subprocuraduría Especializada en Investigación de Delincuencia Organizada (SEIDO)—an investigative unit of the attorney general’s office that focuses on organized crime—the memo describes a robust and routine pattern of narco-police collaboration in San Fernando. Captured Zetas told investigators that police acted as lookouts for the group, helped with “the interception or persons,” and turned a blind eye to their illegal activities.
“I know that police and transit officials in San Fernando help the Zetas organization,” testified Álvaro Alba Terrazas, one of the 17 police officers detained. “Rather than take detainees to the Pentágano, which is to say the municipal jail, they would deliver them to the Zetas.” Terrazas also identified two other San Fernando cops on the Zetas’ payroll. The statement excerpted in the memo does not specify which of their prisoners were handed over to the Zetas or why.
The revelation that San Fernando police worked hand-in-glove with the Zetas during the San Fernando massacre comes as little surprise to a Mexican public wearily accustomed to hearing accounts of state-sponsored violence and official corruption. But as Sergio Aguayo, one of Mexico’s leading human rights scholars, points out, there is a “big difference [between] the belief that something happened and having the information that shows it.” “In this case there is no longer any doubt,” Aguayo said on MVS Noticias. “The municipal police of San Fernando, Tamaulipas, were at the service of the Zetas.”
The article also looks at formerly secret U.S. documents on the Zetas that lend credence to the first-hand accounts of police corruption described in the SEIDO memo, depicting the Zetas as a ruthless criminal organization with elite military training and an unmatched ability to compromise state and local security forces.
New SSCI Chair Tries to Hide CIA Torture Report from FOIA, New Non-Binding DOJ Guidelines for Dealing with Journalists, and Much More: FRINFORMSUM 1/22/2015
Sen. Richard Burr (R-NC), the new head of the Senate Intelligence Committee (SSCI) and staunch critic of the Committee’s classified CIA Torture Report compiled under Sen. Dianne Feinstein (D-CA), recently sent a letter to the White House requesting that all federal agencies and departments in possession of the report return it to the Committee immediately. Burr’s letter argues the report is “a committee sensitive document” and “should not be entered into any executive branch system of records.” Burr also requested that the Senate’s official referee “determine whether it was appropriate for the full, classified Intelligence Committee report to ever leave the Senate without the GOP being notified.”
Many believe Sen. Burr’s unprecedented move is made with an eye towards future FOIA requests seeking the report’s declassification, as Congress is not subject to the Freedom of Information Act. Steven Aftergood notes that if Burr’s move is an attempt to hide documents outside the bounds of FOIA, however, it “seems short-sighted and probably futile, given that all of the evidentiary material on which the report is based originated in the executive branch anyway. Moreover, the Committee report has spawned an entire literature of agency evaluations and responses (such as the so-called Panetta Review). That literature belongs to the agencies, and sooner or later it should be subject to public disclosure regardless of the fate of the SSCI report.” It’s worth noting yesterday’s New York Times reported that each document used for the Panetta Review, the internal 2009 CIA review finding the value of torturing detainees had been inflated, “is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” and is emblematic of agencies realizing the ease of hiding FOIA-able documents under the expansive and oft-abused FOIA exemption b(5). Of course, pursuant to Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987), “particular factual” material cannot be withheld by an agency by merely stating that the material is in a draft document.
CIA Inspector General David Buckley’s report finding five agency officials improperly monitored SSCI staff working on the Torture Report is now available. While Buckley’s report admonished the involved officials, the agency recently announced that it will not punish said officials. The news was issued in a report by a CIA panel hand-picked by Director John Brennan, and “cleared” the officials of any “wrongdoing,” concluding that the officials had acted reasonably in the face of a potential security breach. It was simultaneously announced that Buckley will be resigning at the end of the month.
Outgoing Attorney General Eric Holder, who has overseen the Justice Department’s crackdown on government officials who reveal secrets to journalists, recently announced new non-binding DOJ procedures intended to tighten “guidelines for the use of subpoenas, court orders and search warrants to obtain information and records of journalists.” Under the new guidelines, prosecutors will require “authorization from the attorney general if they want to seek information from journalists who used classified material or confidential sources in the course of their newsgathering.” The guidelines were announced shortly after the DOJ dropped its subpoena for New York Times reporter James Risen’s testimony in a leaks trial.
Last week the Justice Department disclosed in court documents that the Drug Enforcement Agency maintained a database of Americans’ outbound overseas call records, even if the callers were not involved in any criminal activity, for over a decade. The database was apparently available to other law enforcement agencies working on certain cases, and was only suspended in 2013. Sen. Patrick Leahy (D-VT) urged AG Holder not to restore the program in a letter last March, saying, “I am deeply concerned about this suspicionless intrusion into Americans’ privacy in any context, but it is particularly troubling when done for routine criminal investigations.” The Senator later praised Holder’s decision to kill the program.
A weak checks-and-balance system at the FBI’s prestigious D.C. bureau enabled one agent to tamper with evidence collected from his cases and repeatedly steal heroin for his personal use, resulting in the release of men previously convicted of drug crimes. This story comes on the heels of an internal FBI investigation finding “agents in every region of the country have mishandled, mislabeled and lost evidence” and found errors “with nearly half the pieces of evidence it reviewed.”
The Guardian recently obtained a Pentagon Inspector General report through the FOIA that accuses the Air Force of possibly wasting $8.8 billion on unnecessary Reaper drones. A summary of the IG report was released in September, arguing USAF “officials did not receive appropriate approval for an increase in quantity. The Air Force also failed to perform a proper analysis to justify the amount needed.” The scathing summary prompted to Air Force to issue a rare rebuttal of the DOD IG report, and post a response on its website arguing the IG report relied on year-old data. Earlier this month, Customs and Border Protection’s (CBP) drone fleet also received criticism from a Department of Homeland Security (DHS) Inspector General audit that found “little or no evidence” CBP’s current fleet – that surveys a mere “100 miles of the Arizona border and 70 miles of the Texas border” – warrants the agency’s planned $443 million expansion of the program.
The declassification watchdogs at the Public Interest Declassification Board call for an end to both the wasteful referral and consultation re-review process and the ineffective pass/fail declassification shortcut at the National Declassification Center (NDC) in their latest report, Setting Priorities: An Essential Step in Transforming Declassification. Archivist and FOIA Advisory Committee member Nate Jones takes an in-depth look at these recommendations, as well as the report’s most controversial recommendation that “Topic based declassification should be the normal process rather than the exception,” in his latest for Unredacted. Jones urges that instead of pursuing the targeted declassification of disparate topics, the NDC pursue “the targeted (and thorough) declassification of key series of records while continuing bulk declassification of all records in NARA’s possession.”
Vice News reporter Jason Leopold recently lambasted U.S. Central Command (CENTCOM) for using the increasingly misapplied FOIA Exemption b(5) to deny huge swaths of documents regarding a “‘precision strike program’ to provide Yemeni military with equipment so it could operate its own targeted killings of suspected terrorists.” Among the documents denied under the b(5) exemption – used so often President Obama’s adviser John Podesta has called it the “withhold it because you want to” exemption – is a two-page February 3, 2014, CENTCOM memo obtained and posted in full online by Buzzfeed reporter Aram Roston nearly a year ago.
This week’s #tbt document pick is chosen with the growing misapplication of exemption b(5) in mind, and was obtained during the Archive’s Knight Open Government Survey, “Glass Half Full”. The document was disclosed by the Department of the Interior (DOI), and is the DOI’s (and likely other agencies) cheat sheet for determining if a document can be released to a FOIA requester as a “discretionary release,” a situation most applicable to documents withheld under b(5).
The Society for Historians of American Foreign Relations (SHAFR) recently released its FOIA Implementation Report, drawn in part from responses to the 2014 SHAFR survey on archival experiences and prepared for the FOIA Advisory Committee’s June 23, 2014, meeting. SHAFR’s report emphasizes that for FOIA implementation to improve, a systemic address of growing agency backlogs and the rising misapplication of FOIA exemption b(5), as well as an embrace of best practice risk management principles, must all take place.
The six-page report, signed by SHAFR representative to the National Coalition for History Kristin Hoganson and Chair of the SHAFR Historical Documentation Committee, notes that current declassification procedures are oftentimes marred by delays and “capricious” redactions that increasingly force researchers to turn to archives abroad, resulting in an incomplete historical account “that may misinterpret U.S. policymaking or provide less balanced views.” SHAFR points out that enforcing Executive Order 13526, which stipulates the rules for automatic declassification, and fixing the CIA’s CREST search engine, would both help prevent declassification delays down the road. And, as the Archive regularly argues, SHAFR reiterates that the best single tool to address the government-wide FOIA backlogs is expanding proactive online disclosures. This would not only go a long way to help solve endemic agency FOIA backlogs, it would also make FOIA workshops more efficient by eliminating the need to spend hours processing multiple identical requests.
Equities – in which one agency “can delay the release of information that circulated across agencies” – are a major factor contributing to the FOIA delays discussed in the SHAFR report. To help address delays caused by equity re-reviews, SHAFR encourages setting time limits for third party agencies to act, after which point they lose the opportunity to do so. SHAFR argues establishing “explicit and specific rules about what can be ‘equity’ information, strictures as to how long a third party agency can hang onto its interests, and guidelines as to whether particular agency interests can impede the general move to declassification” would help fix the equity issue, thereby further improving FOIA wait times and backlogs.
The SHAFR report astutely points out that embracing best practice risk management principles would also improve FOIA’s government-wide implementation. The report notes, “NARA must balance the risks that come from releasing information against the benefits of a transparent and open society. As it stands now, there are no incentives for being forward leaning in making documents available. There are only punishments, real and imagined, for making a mistake. Until FOIA processors embrace risk management principles, the process will remain slow, cumbersome, and skewed toward excessive governmental secrecy.” In that vein, building accountability measures into FOIA processing for FOIA officers who withhold too much information in response to a FOIA request would also help. Currently there are no policies in place for officials who withhold too much information and “act irresponsibly or in bad faith on FOIA. One possible means for evaluating FOIA implementation is to grant the Information Security Oversight Office greater authority to intervene in cases in which an agency appears either derelict or obstructionist.”
SHAFR also urges the FOIA Advisory Committee to place a ten-year time limit on FOIA exemption b(5), the “deliberative process” exemption that potentially covers any “inter-agency or intra-agency memorandums or letters.” Agencies, however, are increasingly citing the b(5) exemption to hide any “draft” or “pre-decisional” document from the public, leading to the nickname the “withhold it because you want to” exemption. According to statistics compiled by The Associated Press last year, the b(5) exemption was invoked a record-breaking 81,752 times in 2013, and was applied to 12 percent of all FOIA denials across the federal government. Today’s New York Times article finding that each document used for the Panetta Review, the internal 2009 CIA review finding the value of torturing detainees had been inflated, “is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” is emblematic of the reason why there has been a longstanding push to end agencies’ practice of withholding too much information under the b(5) exemption. The SHAFR report’s recommendation that the exemption be replaced “with a ten year exemption after which ‘pre-decisional’ documents would be treated like other government documents” is another testament to how much the exemption, as it stands, needs fixing.