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508 Should Not Undercut FOIA’s Promise to Release the Most Documents to the Most People the Most Quickly: FRINFORMSUM 10/26/16

October 27, 2016
Nate Jones (R) speaking at the most recent FOIA Advisory Committee meeting. OGIS's Nikki Gramian is center, and OIP's Melanie Pustay is on the left.

Nate Jones (R) speaking at the most recent FOIA Advisory Committee meeting. OGIS’s Nikki Gramian is center, and OIP’s Melanie Pustay is on the left.

508 Should Not Be Distorted to Undermine FOIA

This week an expert panel comprised of representatives from the Access Board and the General Services Administration addressed the FOIA Advisory Committee’s October 25 meeting and answered questions on 508 compliance. 508 compliance refers to a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities and that federal employees with disabilities can access records with the same ease as their counterparts since 1998. It is also often cited by agencies as a reason they cannot post FOIA releases online, because either making documents 508 compliant is too difficult or agencies fear being sued for posting “non-compliant” documents – even though all documents created after 1998 are required to be accessible so that agency employees with disabilities can still access them.

The expert panel made several important remarks, including the fact that while 508 is a requirement for agencies, how far each agency goes fulfilling 508 standards is a matter of agency discretion. The panel also noted that if making documents 508 compliant constitutes an “undue burden,” agencies can still post documents that are not 508 compliant to their websites. Finally, the panel also noted that some agencies do post non-508 compliant documents but provide a disclaimer and further instructions for individuals with accessibility issues on how to access the documents – a practice that the panel indicated is acceptable and is something the Department of Homeland Security, among others, currently does. (The DHS website states: “If the format of any material on our website interferes with your ability to access the information, due to an issue with accessibility caused by a disability as defined in the Rehabilitation Act, please contact Website Issues for assistance.)

The National Security Archive’s FOIA Project Director Nate Jones, after pointing out the problem of contractors monetizing the technological burdens of making documents 508 compliant, asked the panel for the citations used to make claims that agencies are allowed to use disclaimers to post documents online that are not 508 compliant and what constitutes an undue burden.

Tom Susman, director of the American Bar Association’s governmental affairs office and member of the FOIA Advisory Committee, cut to the core of yesterday’s meeting, summarizing: “On the one hand, I’m hearing from you either there’s a technology that can do it, or if it’s too great a burden, an agency can go ahead with a disclaimer. Yet I’m hearing from the other side, a lot of agencies and government people say, ‘Oh no, no, 508 keeps us from doing it.’ I think that’s really the question of the day.”

The FOIA and 508 statutes should not be at loggerheads, and the Sunlight Foundation’s Alex Howard emphasized during the public comment period that, under no circumstances, should a statute mandating greater access be distorted by agencies to undermine the FOIA’s intent to disseminate the most information to the most people the most quickly.

The meeting was recorded, but the video will not be made available until it is made 508 compliant.

Donald Rumsfeld, Prolific Short Memo Writer, Chastises Subordinates for Short Memo Use

memoprocedure

Rumsfeld’s short memos were called “snowflakes” for their abundance and being on white paper.

Donald Rumsfeld was famous for sending out short memos, often referred to as “snowflakes,” during his tenure as Defense Secretary – regularly producing between 20 and 60 a day. The National Security Archive filed a FOIA request for these “snowflakes” in 2007 – that has not yet been fulfilled. Some of Rumsfeld’s snowflakes have, however, been released under different FOIA requests. A 2012 FOIA request to the DOD for 2004 Afghanistan records produced an ironic September 9, 2004, snowflake from Rumsfeld on “Memo Procedure.” The note reads: “Attached is a short memo from Mira. I noticed that it has been approved by you [Doug Feith], Mira, and seven others. You might want to review your procedures to determine if a short memo like this requires so many people to approve.” The memo referenced is entirely redacted.

FOIA Lawsuit Reveals High Level of PTSD Among Guantanamo Guards

A FOIA lawsuit filed by VICE News’s Jason Leopold has won the release of several reports that reveal the high rates of post-traumatic stress among Guantanamo prison guards. One of the released reports, a 2011 Army Institute of Public Health study, notes that “Between 2008 and 2011, the joint task force that operates the detention facility secretly evacuated at least 19 troops who had worked in detainee operations due to severe ‘behavioral health reasons.’” The study also found that 1 in 5 troops were considered to be a high behavioral health risk – for having suicidal thoughts or exhibiting behavioral conditions like depression that required “intensive medication management and/or therapy.” The study recommended, among other things, that the “military pre-screen all troops prior to their deployment to Guantanamo to identify pre-existing behavioral health conditions,” although a Guantanamo spokesperson would not confirm if any of the recommendations were implemented.

MOONLIGHT MAZE Remains Heavily Redacted

moonlight

Moonlight Maze.

This week’s Cyber Vault update includes a heavily-redacted April 1999 FBI memo that summarizes recent developments in a series of computer infiltrations that began in 1998 and lasted almost two years. Codename MOONLIGHT MAZE, the investigation traced the attacks to Russia – although Russia denied any involvement – and revealed serious gaps in the U.S.’s cyber defense. The document provides extensive background on the MOONLIGHT MAZE investigation of computer systems in the United States and at least four other nations (the United Kingdom, Canada, Brazil, and Germany), but, more than 15 years later, remains heavily redacted pursuant to the FOIA’s exemption 7.

FOIA Apology Drafted by HRC Aides, Never Issued

Hillary Clinton aides drafted a mea culpa on how her use of private email and server while Secretary of State affected the State Department’s handling on FOIA requests. The State Department has been inundated with dozens of FOIA lawsuits to preserve the documents as federal records and spur their release since Clinton’s personal email use was revealed early last year. One draft of the statement, which was released after Clinton campaign chairman John Podesta’s emails were hacked and published online, read “I wish I had thought more about the public records process and the impact on FOIA requests.” (For our run-downs on Hillary Clinton’s email use, go here and here.)

A number of references to the National Security Archive also appear in Podesta’s hacked emails – including Archive Director Tom Blanton’s July 2015 Washington Post op-ed – “America classifies way too much information — and we are all less safe for it.” The article, contextualizing an Intelligence Community Inspector General report that Clinton’s personal emails contained “several dozen” classified emails, lays out the ongoing problem of overclassification. Blanton argues that “the real secrets make up only a fraction of the classified universe, and no secret deserves immortality. In fact, essential to the whole idea of democratic government is that secret deals with dictators will come out eventually, not least to deter the worst deals from being made…I showed Congress the estimates over the years of how much gets classified that doesn’t deserve to be. Ronald Reagan’s executive secretary for the National Security Council, Rodney B. McDaniel, said 90 percent. Thomas H. Kean, the Republican head of the 9/11 Commission, said 75 percent of what he saw that was classified should not have been.”

Enemy Drones of Rising Concern

Steven Aftergood recently flagged an Army doctrinal publication on Secrecy News concerning the growing threat of enemy drone use. The paper notes that “Perhaps the most dangerous COA [course of action]… is the Swarm” in which drone clusters “are used by an adversary simultaneously for surveillance, indirect attack and direct attack;” it also cites the growing concerns of drones functioning as explosives. The paper, Aftergood notes, does not expressly state how to deal with both of these concerns, while citing a New York Times article from earlier this month on ISIS’s use of exploding drones.

#TBT in Honor of Bulgaria’s Access to Information Program’s 20th Anniversary

This week’s #tbt pick is chosen with Bulgarian NGO Access to Information Program’s (AIP) 20th anniversary in mind. AIP has produced valuable annual transparency audits since 2006 “to evaluate how the executive bodies fulfill their obligations for proactive publication of information online under the Access to Public Information Act and other legal regulations and to assess their readiness to respond to electronic requests.” This week’s pick is a 2010 blog post, using documents requested under the Bulgarian Access to Public Information Act by AIP and journalist Vesselka Venkova of the Bulgarian Duma daily, on whether Prime Minister of Bulgaria, Boyko Borisov, “pays his own way.” Borisov resigned in 2013 after national protests over – in part – corruption, but was reinstated in 2014.

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Happy FOIA-ing!

 

Able Archer 83: The Secret History

October 21, 2016
Nate Jones (R) presenting his research on Able Archer 83 at the Wilson Center, October 20, 2016. Tom Blanton, (L), offered expert commentary.

Nate Jones (R) presenting his research on Able Archer 83 at the Wilson Center, October 20, 2016. Tom Blanton, (L), offered expert commentary.

Archive FOIA Project Director and author of the new book, Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War, Nate Jones, recently presented the four key takeaways from his research to-date on the 1983 War Scare before a packed house at the Wilson Center.

Jones, with commentary by Archive Director Tom Blanton and an introduction from the Cold War International History Project’s Christian Ostermann, analyzed the documentary evidence (which Jones has been fighting for over a decade to free through hundreds of Freedom of Information Act and Mandatory Declassification Review requests) on one of the most dangerous periods of the Cold War.

The evidence presented at the Wilson Center and in the book, according to Blanton, “effectively resolves a heated controversy that divided the CIA in the 1980s and has led to sharp exchanges between scholars ever since.”

The video of the presentation and the Q&A is available here. The Wilson Center will also be releasing its own recording, and we will update this posting when it becomes available.

Other events Jones will be holding include a November 2 Reddit Ask Me Anything at 3:00 ET, a November 15 book talk at Walls of Books – Washington, DC at 7:00, and an International Spy Museum Podcast which will be released November 15.

Early praise for Jones’s book includes:

“Twenty-one years after the Cuban Missile Crisis, a NATO exercise, Able Archer 83, came terrifyingly close to precipitating an accidental nuclear war.  Nate Jones’s brilliantly researched and gripping history of government miscalculations and misjudgments on both sides of the iron curtain during this war game poses the twenty-first-century’s most serious existential question: How many nuclear bullets can humanity dodge? Read it and reckon! I don’t think you will like the answer.”

–MARTIN J. SHERWIN, University Professor of History at George Mason University and author of A World Destroyed: Hiroshima and Its Legacies

“Able Archer 83 is an invaluable resource on one of the most dangerous moments of the Cold War.  The book contains an unmatched collection of previously secret documents about the War Scare of 1983 and the Able Archer exercise at the center of it.  If you want to learn from history, this is the place to start.”

–DAVID E. HOFFMAN, author of The Dead Hand: The Untold Story of the Cold War Arms Race and its Dangerous Legacy

“Read this book and you will make the world a safer place. Read these former secrets-many of them classified above Top Secret-and you will understand how the Cold War dangers that flared in 1983-and could have produced a nuclear war through miscalculation and misperception-are still with us today.”

–TOM BLANTON, director, National Security Archive (from the foreword)

“Able Archer 83 brings us back to a moment when we all came close to becoming cinders or radioactive corpses.  It’s an important contribution to our understanding of how the Cold War played out, and how erroneous assumptions routinely become institutionalized policy, which then becomes almost irresistible.”

–GLENN L. CARLE, a former CIA officer and author of The Interrogator

 

Good FOIA Fee Guidance from OIP, How the Next President Can Strengthen Records Accountability, and More: FRINFORMSUM 10/20/2016

October 20, 2016

feeguidance

Good FOIA Fee Guidance from OIP

The Department of Justice Office of Information Policy (OIP) has issued good FOIA fee guidance that clearly lays out for agencies the limitations the FOIA Improvement Act of 2016 places on their ability to assess fees. Importantly, the guidance reminds agencies that “unusual circumstances,” which agencies routinely cite when processing FOIA requests while continuing to assess fees as usual, are extremely limited and must meet strict thresholds to qualify as “unusual.” In cases where that threshold is not met, most fees cannot be assessed; OIP also emphasizes that if the request involves 5,000 pages or less and agencies take over 30 days to respond, most fees may not be charged. The strong guidance – which should result in agencies charging much fewer fees going forward – is good to see from OIP; the next step will be ensuring that the Office of Management and Budget follows through on recommendations by the FOIA Advisory Committee to update its three-decade-old fee guidelines.

Which fees can be charged by requester category if the government misses its deadline (and does not proclaim your request as "unusual.")

Which fees can be charged by requester category if the government misses its deadline (and does not proclaim your request as “unusual.”)

FOIA Federal Advisory Committee Meeting

The FOIA Advisory Committee’s next meeting will take place on Tuesday, October 25th at 10 AM in the Archivist’s Reception Room at NARA. While the meeting will be recorded, live streaming will not be available. (I’ll be there live-tweeting for those who can’t make it.)

Opportunity for Next President to Strengthen Records Accountability

OpenTheGovernment.org recently published a letter for both presidential campaign transition teams for actions the candidates can take to demonstrate their commitment to strengthening records accountability within the federal government. Noting that the revelation of Secretary Clinton’s use of personal email “created a pivotal moment for the public to pressure the government to examine the way officials manage, preserve, and release information in the digital age,” the letter’s co-signers, including National Security Archive director Tom Blanton, urge the president to issue a first-day memorandum to all executive departments, agencies, and independent agencies directing them to take the following actions:

“(1) Within six months each Senior Agency Official for Records Management, working with the National Archives and Records Administration (NARA), shall develop and implement agency-wide records management training for all agency employees and contractors performing agency functions.

(2) Within six months each Chief Technology Officer or their equivalent shall report to the agency head on the status of their agency’s record keeping systems and the progress they have made toward satisfying the requirements of the August 24, 2012 memorandum issued by the Office of Management and Budget, “Managing Government Records Directive.”

(3) Within nine months each Inspector General, working with each Senior Agency Official for Records Management, shall report to the agency head on steps the agency has taken with respect to subparagraphs (1) and (2).

(4) Within 12 months the head of each agency or designated senior agency official shall report to the President on the status of the agency’s compliance with the August 24, 2012 OMB memorandum.

(5) Within 12 months, and every two years thereafter, each agency shall develop an open records plan, with public engagement, that identifies the key steps the agency will take to ensure ongoing compliance with all federal records requirements.”

brennanSecret Law and “Informal” OLC Opinions

NYU Law School’s Brennan Center for Justice used a series of targeted FOIA-requests to help uncover how much reliance on secret law has expanded post 9/11, and to show how it “persists even in areas where we thought the secrecy had ended.” The report, compiled by Brennan Center co-director Liza Goitein and highlighted in a recent New York Times op-ed, notes that “at least 74 [Justice Department Office of Legal Counsel] O.L.C. opinions from 2002 to 2009 on national security issues, including intelligence gathering and the detention and interrogation of suspected terrorists, remain classified. Similarly, despite the disclosure of many FISA court opinions following Edward Snowden’s revelations, new information from the Justice Department indicates that about 30 significant opinions remain secret.”

The Washington Post’s Ellen Nakashima notes that the still-secret OLC material “includes memos documenting advice given over the phone to agencies.”

The creeping practice of agencies seeking unwritten advice from OLC is controversial. In November 2015 two of the government’s top lawyers told American Bar Association Standing Committee on National Security Law attendees that agencies are shying away from OLC opinions in favor of seeking “informal” and unwritten advice out of concerns the OLC opinions will be sought under the FOIA. The CIA’s General Counsel Caroline Krass told the audience, and acting OLC head Karl Thompson confirmed her assessment, that FOIA has “served as a deterrent to some in terms of coming to the office to ask for a formal opinion.” (Goitein and the ACLU’s Brett Max Kaufman forcefully rebutted Krass and Thompson’s assertions in a series of postings for Just Security that same month).

The House Oversight and Government Reform Committee sent a letter to the DOJ in March 2016 “seeking, among other things, documents showing how many FOIA requests for OLC opinions OLC received between 2005 and 2015, and “Documents sufficient to show whether OLC, or the Department more generally, utilizes any automatic program, such as Capstone, for Federal Records Act purposes.” As far as this author knows, no response has been published.

The data freed by the Brennan Center’s FOIA requests to the State Department also revealed that the “42 percent — almost half — of all international agreements and treaties dating from 2004 to 2014 have not been published. The Case Act of 1972 requires that international agreements be made public, but it allows for certain exemptions, such as for national security purposes.”

Every CRS Report – for Free

Daniel Schuman, policy director for Demand Progress, has successfully spearheaded a campaign to make every Congressional Research Service report available online for free. The site currently houses 8,255 reports. In an article explaining what motivated him to build the useful website, Schuman says, “widespread access to CRS reports increases the reservoir of knowledge available to the American people. If the first result for any substantive internet search is Wikipedia, shouldn’t it contain the knowledge that the American people spent $100 million annually to refine? CRS reports can help make constituent communications to congress better by helping to provide a useful context for people who have questions about matters of policy.”

FOIA Release Reveals Fears U.S. Could be Implicated in War Crimes in Yemen

Documents obtained by Reuters through the Freedom of Information Act and dating from May 2015 through February 2016 show State Department officials’ private concern that following-through on a $1.3 billion arms sale to Saudi Arabia while it carries out air strikes against Yemen that have killed thousands of civilians could implicate the US in war crimes. Specifically, the heavily-redacted documents “reveal new details of how the United States pressed the Saudis to limit civilian damage and provided detailed lists of sites to avoid bombing, even as officials worried about whether the Saudi military had the capacity to do so.” One State Department official said in an October 2015 meeting, “The strikes are not intentionally indiscriminate but rather result from a lack of Saudi experience with dropping munitions and firing missiles.”

FOIA and the Football War

On July 15, 1969, Honduran radio networks, using the country’s recent World Cup qualifier loss to El Salvador as pretext for violence, encouraged listeners “to grab machetes or other weapons and move to the front to assist the army” in its 4-day war against their Salvadoran neighbors. The Archive’s Nate Jones recently joined the Wilson Center’s Sports in the Cold War podcast to discuss how the contentious match combined with political tensions over immigration and an ill-defined border to spark the so-called “The Football War” – and how declassified Central Intelligence Bulletins and President’s Daily Briefs obtained through the Freedom of Information Act provide a vivid day-by-day account of the incident.  Listen here.

proxyAble Archer 83: The Secret History

Jones is the author of the new book Able Archer 83: The Secret History of the NATO Exercise that Almost Triggered Nuclear War and will be giving a special presentation on his research at the Wilson Center today at 3PM, with commentary by Archive director Tom Blanton. Published this month, Able Archer 83 tells the story of this dangerous nuclear incident, the generals who ran it, and the American and Soviet leaders it affected, through a selection of declassified documents pried from U.S. and British agencies and archives, as well as formerly secret Soviet Politburo, KGB, and other Eastern Bloc files. The book vividly recreates what the National Security Agency described as “the most dangerous Soviet-American confrontation since the Cuban Missile Crisis.”

 CIA Overreach: 22-Year-Old FOIA Request Needlessly Withheld in Full

NARA, at the CIA’s urging, recently withheld in full a 22-year-old FOIA request for a document that was very likely released in full in 1999 by the Eisenhower Library. The CIA’s denial of one of the requested documents – from 1958 – raises serious doubts about the quality of the declassification review it provides for records at NARA. It also raises questions about the role of the National Archives in the declassification of archival records. The National Security Archive’s Dr. William Burr has a proposal that would go a long way helping limit instances of such senseless secrecy: “Such problems could be managed, however, if archivists at the National Declassification Center, which is lodged at NARA, had the authority to intervene when they believe that an agency decision needs to reconsider its judgments.  In that case, an archivist could ask for a justification of the decision. If she is not persuaded, an NDC committee could undertake a quality review to decide whether the agency is making a reasonable case and order further review if necessary.  The NDC is unlikely to take such action on its own; it would probably require a decision by the Archivist of the United States or even the Information Security Oversight Office to grant such authority.”

TBT Pick – “Fujimori’s Rasputin”

This week’s #tbt pick is a 2000 posting of declassified documents on Vladimiro Montesinos – referred to as “Fujimori’s Rasputin.” The documents show that as early as October 1990, US Army intelligence analysts were already referring to Fujimori as “in the hip pocket of the National Intelligence Service (Servicio Inteligencia Nacional –SIN),” and as “particularly influenced by Vladimiro Montesinos.” In a report titled “Who is Controlling Whom” high-level Peruvian army officers described to US intelligence analysts this “extraordinary…situation in which the intelligence apparatus is in effect running the state.”

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Happy FOIA-ing!

CIA Overreach? 22-Year-Old FOIA Request for 1958 Document Withheld in Full

October 18, 2016

withdrawl

Recently the National Archives sent the National Security Archive a decision letter on a Freedom of Information Act request that the present author filed in 1994.  It might not be the Archive’s oldest request at NARA that remains in play, but it is certainly among them.  The CIA’s denial of one of the requested documents raises serious doubts about the quality of the declassification review it provides for records at NARA. It also raises questions about the role of the National Archives in the declassification of archival records.

The request was for documents from the State Department decimal files on Anglo-American nuclear relations, including basing issues, during the late 1950s.  Many of the documents requested had been declassified during the 1990s, but some agencies take their time in reviewing records and in this instance the Central Intelligence Agency was the laggard.  According to the National Archives’ letter, the CIA had withheld in its entirety tab 40B from box 3199 of the decimal file series for 1955-1959.  The withdrawal sheet for tab 40B describes it as a 7-page report with an attachment described as “Fr Murphy, et al. to the President, et al.,” dated 7 June 1958, classified top secret. According to the National Archives’ letter, the CIA’s exemption was based on the FOIA’s statutory exemption (B) (3), in this case 50 U.S.C. 403 (g), “which protects the organization and staff of the Central Intelligence Agency.”

Already Declassified?

It is difficult to be sure exactly what the withheld document is because it is stored in a vault at the National Archives in College Park, MD.  Nevertheless, the subject matter of the decimal file in which the withdrawn document had once resided, the fact that it was signed by Deputy Under Secretary of State Robert Murphy, and that the addressee was President Dwight D. Eisenhower strongly suggest that Tab 40B is the text of the agreement on  “Procedures for the Committing to the Attack of Nuclear Retaliatory Forces in the United Kingdom, which Murphy had negotiated with Sir Patrick Dean, a British career diplomat, who was then chairman of the UK’s Joint Intelligence Committee.  The addressees on that agreement were the President and the Prime Minister and it is signed by Murphy and Dean. The agreement was declassified in full by the Dwight D. Eisenhower Library in late 1999.

report

“Procedures for the Committing to the Attack of Nuclear Retaliatory Forces in the United Kingdom.”

The purpose of the agreement was to assure that if war with the Soviet Union broke out, a “mutually understood procedure” would assure that British nuclear forces and U.S. nuclear forces based in the United Kingdom went into action “with the minimum delay.” At the behest of President Eisenhower and British Prime Minister Harold Macmillan, Murphy negotiated the arrangements with Dean (who probably was the lead British negotiator because he had all of the necessary security clearances and “need to know” on sensitive nuclear and intelligence issues).  During the negotiations, the CIA was kept informed, but played no role otherwise.  The Agency was kept in the loop because the agreement provided a role for U.S. intelligence authorities in the event that the interagency CIA-chaired National Indications Center received intelligence information that provided warning of an attack.  If intelligence received an advance “strategic warning,” the U.S. would pass the information to both the British and the Canadian Joint Intelligence Committees. That was consistent with the Tripartite Alert procedure that London, Ottawa, and Washington had negotiated in 1957.  In the event of a surprise attack or tactical warning that a bomber or missile strike was on its way, presumably the British and the Canadians would have already been aware of the circumstances.

The rest of the agreement relates to procedures for the use of nuclear weapons.  While incoming Prime Minister Macmillan had, like his predecessors, sought a commitment by Washington on the use of U.S. nuclear forces based in the United Kingdom, Murphy-Dean was not a binding agreement.  A joint decision to use forces would depend on “the circumstances at the time.”

The ISCAP release.

The ISCAP release.

The Murphy-Dean agreement has been the subject of historical research and writing and declassification requesting. What was likely the first scholarly discussion was by Stephen Twigge and Len Scott in their book, Planning Armageddon: Britain, the United States and the Command of Western Nuclear Forces, 1945-1964 (Amsterdam: Harwood Academic Publishers, 2000).  Twigge and Scott had access to a partly declassified copy of the agreement at the Eisenhower Presidential Library in Abilene, KS; from that version, U.S. government reviewers had excised “Formerly Restricted Data,” such as references to U.S. nuclear weapons that had been made available to the Royal Air Force.  The Interagency Security Classification Appeals Panel (ISCAP) released a somewhat fuller version (although with some variations in text) of the agreement during the 1990s, but significant portions, including sections on tactical and strategic warning procedures, remained classified as FRD.  The brief passages concerning the British and Canadian intelligence committees were declassified in their entirety. In any event, the U.S. excisions were moot because Twigge and Scott found material in the British National Archives that enabled them to reconstruct the agreement in its entirety (including subsequent amendments) and publish it in their book.

Unbeknownst to Twigge and Scott (and certainly to the present writer), in late 1999, by the time their book had gone to press the agreement had been declassified in full.  The copy at the Eisenhower Library is the 6-page signed agreement (the 7-page withheld copy in the National Archives probably includes a cover memorandum to the Secretary of State or the President perhaps with a recommendation to approve the attached agreement).   In 1999, when the Defense Department and the Energy Department reviewed the document from the Eisenhower Library they no longer had objections to full declassification, probably because they were no longer treating the fact that the United States had deployed nuclear weapons to the United Kingdom as secret under the Atomic Energy Act.  Apparently no other agency, including the Central Intelligence Agency, lodged any objections to declassification of the brief passages of intelligence interest.

Unjustified Denial

CIA declassifiers were very likely unaware of the declassification history when it reviewed this writer’s 1994 request and exempted tab 40B in its entirety.   Yet, if indeed the exempted document is the Murphy-Dean agreement, why the Agency’s declassification reviewers felt compelled to deny it is perplexing.  Worse still, there are plainly no direct references to the CIA’s “organization or staff,” which was the declared basis for the denial.  In any case, the Agency could easily have excised the few lines mentioning the National Indications Center and the British and Canadian intelligence committees; they are a minor element of the text.  By denying the report in its entirety, the CIA has significantly exceeded its authority; the content of the Murphy-Dean agreement has nothing to do with classified intelligence information, it relates only to intelligence sharing arrangements that have been declassified for years.  If the CIA has indeed denied the Murphy-Dean agreement, it places the quality of its declassification review process under heavy doubt because the decision is so unsound.

A Proposal

This is hardly the first occurrence of an incorrect classification decision concerning an archival document. What makes this kind of problem possible is that the National Archives serves as the executor of agency decisions, yet its staff has no power to lodge an objection, much less prevent or discourage agencies from overreaching.  Such problems could be managed, however, if archivists at the National Declassification Center, which is lodged at NARA, had the authority to intervene when they believe that an agency decision needs to reconsider its judgments.  In that case, an archivist could ask for a justification of the decision. If she is not persuaded, an NDC committee could undertake a quality review to decide whether the agency is making a reasonable case and order further review if necessary.  The NDC is unlikely to take such action on its own; it would probably require a decision by the Archivist of the United States or even the Information Security Oversight Office to grant such authority.

FOIA and “The Football War”

October 17, 2016

fbwar2On July 15, 1969, Honduran radio networks, using the country’s recent World Cup qualifier loss to El Salvador as pretext for violence, encouraged listeners “to grab machetes or other weapons and move to the front to assist the army” in its 4-day war against their Salvadoran neighbors.

The Archive’s Nate Jones recently joined the Wilson Center’s Sports in the Cold War podcast to discuss how the contentious match combined with political tensions over immigration and an ill-defined border to spark the so-called “The Football War” – and how declassified Central Intelligence Bulletins and President’s Daily Briefs obtained through the Freedom of Information Act provide a vivid day-by-day account of the incident.  Listen here.

Jones is the author of the new book Able Archer 83: The Secret History of the NATO Exercise that Almost Triggered Nuclear War and will be giving a special presentation on his research at the Wilson Center on October 20 at 3PM, with commentary by Archive director Tom Blanton.

El Salvador defeats Honduras in Mexico City, 1969.

El Salvador defeats Honduras in Mexico City, 1969.

State Department’s 1953 Iran FRUS Past Due: FRINFORMSUM 10/13/2016

October 13, 2016
Iranian Prime Minister Mohammad Mosaddegh, overthrown in the 1953 coup.

Iranian Prime Minister Mohammad Mosaddegh, overthrown in the 1953 coup.

It is past time for the State Department to release its Foreign Relations of the United States (FRUS) volume on the 1953 Iran Coup. Malcolm Byrne – the National Security Archive’s Deputy Director and Iran Project Director – argues in a recent Politico article that the State Department’s decision to delay the release of the “long-overdue” volume over stated concerns that it would prompt a harsh response from Tehran is misguided. Byrne notes that “The problem with this rationale is that, so many years later, the administration’s anxieties over lasting damage coming from the Islamic Republic have simply not been supported by experience.”

The history of the 1953 Iran FRUS is a dramatic one. The State Department first published a 1989 volume on the coup that failed to mention the CIA’s involvement, an omission that scholars called a “fraud” and received such intense criticism that Congress passed a 1991 statute requiring the FRUS to present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations. The outrage and legislation prompted the State Department Historian’s Office to prepare a make-up volume, which, as Byrne notes, “it painstakingly compiled several years ago and expected to publish in 2013. In other words, as the Department’s own historical advisory committee noted in its latest annual report, it is finished and ready to go. But it has yet to appear.”

Rationale for withholding the history has evolved over the years – ranging from claims of needing to shield sources and methods to protecting the well-known-secret of British involvement in the coup, and obfuscation persists even though CIA documents on the United States’ role in the controversial operation were released to the National Security Archive in 2013 through the FOIA.

Byrne argues that instead of clinging to secrecy, the State Department should release the volume, giving a “boost to the president’s lofty commitment to greater openness,” and providing the “American people access to a chapter of their recent history they have every right to see” in the process.

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National Security Council, Minutes of the National Security Planning Group Meeting, “Subject: US-Soviet Relations,” June 12, 1986. [Secret]

On June 12, 1986, President Reagan told attendees of the National Security Planning Group meeting that “we do not want a first-strike capability, but the Soviets probably will not believe us.” Reagan said this made the presence of international observers even more important and argued that the US should ultimately “[a]gree to share SDI with the world.” This remarkable declassified document is one of 32 recently posted by the Archive that, collectively, reveal that many US officials treated Soviet leader Mikhail Gorbachev’s radical proposal in January 1986 to abolish nuclear weapons by the year 2000 as pure propaganda, though it was welcomed by President Reagan. The records show serious internal US debates, consultations with allies, and support by the president that ultimately helped produce the historic Reykjavik summit 30 years ago. See the posting – and the declassified documents – here, and keep an eye out for transcripts covering all of the bilateral summits from 1985 to 1991 that will appear next month in the new book, The Last Superpower Summits: Gorbachev, Reagan, and Bush: Conversations that Ended the Cold War.

A new State Department Inspector General report on classification activity is a damper on earlier Information Security Oversight Office reports that tout sharply declining number of original declassification decisions. ISOO reports on agency classification decisions rely on figures that “were understood to be estimates” but have nonetheless seen the total number of original classification decisions drop dramatically from 258,633 in 2005 to 53,425 in 2015. The new State Department report says, however, that the numbers are not estimates – they are “inaccurate and incorrect” and that classification totals reported to ISOO “will not accurately represent all of the Department’s classification decisions because not all decisions are being identified or sampled as part of the Department’s self-inspection program.” Steve Aftergood drew attention to the report on his blog earlier this week, quoting ISOO director William Cira as being unsurprised and “not especially troubled” by the IG report. Cira notes that while the extrapolation method used to calculate the figures is crude, it “has been consistently applied across many agencies for a very long time,” so while it may not be accurate it may still reliably indicate a downward trend in classification decisions. Aftergood notes, “without real quantitative and qualitative clarity, effective management of agency classification activity will be beyond reach.”

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Frank Sturgis, image via Wikimedia Commons.

The FBI is asking for nearly $3,000 for its 75,000-page file on Watergate burglar (and alleged CIA asset) Frank Sturgis, so MuckRock is organizing a Crowdfund to help get the historically significant documents released. As Michael Best writes for MuckRock, “Despite numerous denials from the CIA and assertions that Frank Sturgis was never employed by the Agency, a pair of documents have surfaced that clearly contradict this and show the Justice Department was aware of it. We won’t know the full extent of the file – which is more than four times as long as the 17,000 page FBI file on Watergate – until it’s released, but there are a number of things that are certain to be in it and which have very little official documentation available to the public.”

Thirty years ago, a Soviet nuclear submarine with about 30 nuclear warheads on board sank off U.S. shores north of Bermuda as Mikhail Gorbachev and Ronald Reagan were preparing for their historic summit in Reykjavik, Iceland. But instead of Chernobyl-style denials, the Soviet government reached out to the Americans, issued a public statement, and even received offers of help from Washington, according to the never-before-published transcript of that day’s Politburo session, posted recently by the National Security Archive. As the Archive’s Russian Programs Director Svetlana Savranskaya writes, “This was the first time the Soviets had ever delivered a public information report immediately after an accident of this type and did not view U.S. actions in the area as a provocation. Communications between the two superpowers were therefore very constructive.  Having learned how damaging to the Soviet image the secrecy surrounding the Chernobyl accident was, Gorbachev decided to truly deploy glasnost in this case.  In addition to the shadow of Chernobyl, the conduct of both sides, along with the tone of the Politburo discussion, were clearly influenced by preparations for the upcoming summit, which both leaders considered a top priority.”

On the 40th anniversary of the first and only mid-air bombing of a civilian airliner in the Western Hemisphere, the National Security Archive called on the Obama Administration to declassify all remaining intelligence records on Luis Posada Carriles to shed light on his activities, provide historical evidence for his victims, and make a gesture of declassified diplomacy towards Cuba. Toward that goal, the Archive reposted documents implicating Posada Carriles in that terrorist crime and identified still secret records to be declassified.

This week’s Cyber Vault update includes a March 2005 report from Sandia National Labs that offers some useful warnings to anyone doing penetration testing of industrial control systems: the tests themselves could not only cause property damage or wreak minor havoc with larger systems, they could even risk death. In one “real example” the report provides, a tester was almost struck by an inadvertently activated robotic arm:

While a ping sweep was being performed on an active SCADA network that controlled 9-foot robotic arms, it was noticed that one arm became active and swung around 180 degrees. The controller for the arm was in standby mode before the ping sweep was initiated. Luckily, the person in the room was outside the reach of the arm.

Other updates from this week’s Cyber Vault relate to computer security dating all the way back to the late 1990s and early 2000s – including a lengthy, 116-page U.S. Space Command internal Concept of Operations for Computer Network Defense, an early approach to an ongoing problem in our era.

Join the National Security Archive’s Nate Jones on October 20th at 3:00pm at the Woodrow Wilson International Center for Scholars for his special presentation on his new book Able Archer 83: The Secret History, with commentary by Archive director Tom Blanton. Believing Able Archer 83 could have been an actual attack, the Soviets had actively prepared for a surprise missile attack from NATO. The seriousness of this close scrape with Armageddon was declassified last October when the U.S. government released a ninety-four-page presidential analysis of Able Archer that the National Security Archive had spent over a decade attempting to free. Able Archer 83 is based upon more than a thousand pages of declassified documents that Nate Jones, Director of the National Security Archive’s FOIA project, has pried loose from U.S. government agencies, British archives, as well as formerly classified Soviet Politburo and KGB files, vividly recreating the atmosphere that nearly unleashed nuclear war. We hope to see you there! To RSVP for this event, please go here.

ramos 6This week’s #TBT document pick is chosen with today’s National League Division Series game 5 between the Washington Nationals and the LA Dodgers in mind – the winner of which will face the Chicago Cubs in the National League Championship Series. This week’s pick is an April 2016 blog post by the Archive’s resident Nats enthusiast/expert Nate Jones on the Wilson Ramos 2012 kidnapping – declassified. Go Nats!

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Happy FOIA-ing!

New CIA Access Rule Bears Watching, and More: FRINFORMSUM 10/6/2016

October 6, 2016

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The CIA has changed its rules for access to classified historical CIA records three times since 2011. Two changes, from September 2011 and August 2016, concern 32 CFR Part 1909’s rules governing access by Historical Researchers and Certain Former Government Personnel – researches like Evan Thomas, author of The Very Best Men. The differences include additional sections on subjects from “Designation of authority to waive need-to-know and grant historical access requests,” to “Receipt, recording, and tasking.” The definition of historical researcher remains similar but with one variation (change from someone “engaged in a research project leading to publication” to “historical research project that is intended for publication.”).

A September 2016 addition to the CIA’s CFR is more substantial and should be of note for those interested in the State Department’s Foreign Relations of the United States (FRUS) publications. The CIA’s September 2016 final rule adds a new CFR part – Part 1911 – that concerns “Special procedures for discretionary access to classified historical Central Intelligence Agency records requested by other federal agencies.” The FRUS is required by 1991 statute – a statute that was passed after the State Department published a 1989 volume on the 1953 Iran coup that received intense criticism for its failure to mention the CIA’s involvement in the coup (a volume that remains withheld) – to present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations. While the CIA rule is new, observers should pay close attention to ensure the end result is not a narrowing of access by State Department researches and others.

Jeffrey Scudder – a former project manager for the CIA’s Historical Collections Division whose hard-fought FOIA lawsuit forced the agency in 2014 to post online 249 Studies in Intelligence articles – is filing a new FOIA suit for 386 documents that the CIA failed to make available electronically with the hopes of ushering in a “paradigm shift” at the agency.

As part of Scudder’s 2014 case against the CIA – which only accepts FOIA requests via fax – he asked that the documents be released in electronic format – the form that they were already in. The CIA, however, continued its common practice of refusing to release soft copies of its records – ostensibly for security reasons – and told Scudder he could only have hard copies of the articles, which would cost Scudder twice as much. The CIA’s action prompted District Court judge Beryl Howell to find that, “Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

The new suit, “co-filed with academics Ken Osgood, a history professor the Colorado School of Mines; Hugh Wilford, a history professor California State University; and Mark Stout, who directs Global Security Studies at Johns Hopkins” attempts to ensure that the 2014 Howell ruling is not a one-time victory. The lawsuit claims “that researchers can literally count on one hand the number of times the CIA coughed up documents electronically to a requester.” It’s worth noting that the CIA’s anti-electronic stance – forcing researchers to travel to College Park, MD to take turns at one of four computer stations to search the CIA’s CREST database – is unique in the intelligence community; the NSA, DIA, NRO and others regularly release FOIA-requested documents electronically with no adverse consequences.

The Intelligence Community penned a letter to both Congressional intelligence committees opposing the restrictions to the Privacy and Civil Liberties Oversight Board contained in the Senate Intelligence Committee’s version of the FY2017 Intelligence Authorization Act. The September 9 letter, signed by ODNI head James Clapper, “‘strongly opposes’ part of the proposed legislation seeking to limit the jurisdiction of PCLOB to the privacy rights of Americans, and not foreigners,” and takes issue with “a provision that would require PCLOB to keep senior intelligence and congressional officials informed about its activities, an arrangement it said would present significant separation of powers concerns.” Senator Ron Wyden (D-Oregon) has a hold on the bill and in July Senator Patrick Leahy (D-Vermont) demanded the PCLOB restrictions be withdrawn.

Last year Republicans on the House Intelligence Committee successfully advanced a provision to the 2016 intelligence authorization bill blocking 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 former PCLOB chair David Medine, which argued 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.”

The Chicago Police Department has settled a FOIA lawsuit over documents on the city’s use of cell-site simulators, and is expected to release documents “in about a week.” The city has maintained that the devices are used primarily in high-profile cases, like terrorism cases, but hasn’t proven the use of devices is limited to cases of national security.

A recent Justice Department inspector general report faults the Drug Enforcement Administration for misappropriating millions in payments to confidential sources without appropriate oversight – including paying hundreds of thousands of dollars to one AMTRAK employee “for information that was available at no cost to the government.” The DEA also has a long history of frustrating FOIA requesters, including Providence journalist Philip Eil – who just won a multi-year FOIA lawsuit concerning thousands of pages of evidence from the public trial of Dr. Paul Volkman, which was one of the largest prescription drug trials in American history. Eil recently wrote a very good article for the Columbia Journalism Review recounting six FOIA lessons he learned during his five-year battle with the agency (and the Justice Department, which defended the agency’s bad FOIA stance in court).

The National Security Archive recently posted a collection of newly declassified documents – including transcripts of President George H.W. Bush’s September 27, 1991 phone call to Soviet President Mikhail Gorbachev giving the Soviet leader a heads-up on the imminent White House unilateral nuclear withdrawals announcement – to commemorate the 25th anniversary of the Bush initiative. The announcement drew an eager response from Soviet President Mikhail Gorbachev to produce what experts call “the most spontaneous and dramatic reversal” ever of the nuclear arms race. Other posted documents include Gorbachev’s phone call with Bush on October 5 spelling out the dramatic Soviet nuclear pullbacks that matched and in some cases exceeded the American moves and the actual Pentagon orders to U.S. military commanders on carrying out the nuclear withdrawals, the State Department reports on follow up talks in Moscow, translations of the Soviet transcripts of those talks, and internal Soviet assessments of how much the USSR would save from cutting the nuclear weapons involved in the initiative.

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The Archive’s Nuclear Vault director, Dr. William Burr, recently wrote an excellent blog on excessive and unnecessary Secrets of the Cuban Missile Crisis. Burr argues that while more has been learned about the Cuban Missile Crisis in recent decades – like Soviet tactical nuclear weapons in Cuba – the US government continues to keep significant elements of the history secret, including most of the agent reports on the deployment of Soviet missiles in Cuba. Burr has filed a pending appeal for the 7th Air Division in the Cuban Crisis: A Study of Actions in the Emergency before the Interagency Security Classification Appeals Panel, and notes that it “will be an interesting test of whether the Air Force is influential enough to prevent the declassification of such basic information as the number of alert B-47s at bases in the United Kingdom during the Cuban Crisis.”

Reporters Committee for Freedom of the Press just launched a beta of its anticipated new project, the FOIA Wiki. FOIA Wiki is a collaborative FOIA resource that “is part legal guide, part community space for sharing information that aims to serve as a central hub on all manner of issues surrounding FOIA as the law celebrates its 50th anniversary.” The site features, among other things, a “forum where users can post questions and answers about FOIA, as well as discuss problems or thoughts regarding particular records or agencies;” anyone can access the Wiki, you’ll need to create a free account to make modifications. Check out the “help wanted” link to see where FOIA Wiki most needs user input.

The National Freedom of Information Coalition’s 2016 FOI Summit begins tomorrow, October 7, in Washington, DC, and runs through Saturday. There are plenty of panels to check out, including Friday afternoon’s “FOIA @ 50” panel, moderated by Miriam Nisbet, founding director of the Office of Government Information Services, and featuring Archive director Tom Blanton, political activist Ralph Nader, and Founding President of the D.C. Open Government Coalition, Tom Sussman.

jaime_garzon_semana_400In case you missed it, last week the British National Archives declassified 137 top secret files covering “a range of subjects and span the interwar years, Second World War and post-war era up to the mid 1960s. Personal files include individuals classed as Second World War double agents, Soviet intelligence officers, communists and suspected communists including Russian and communist sympathisers.”

This week’s #tbt pick is a 2011 posting by the Archive’s Colombia Documentation Project director Michael Evans on the assassination of beloved Colombian journalist and political satirist Jaime Garzón.

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Happy FOIA-ing!