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Is ISCAP a Victim of Its Success?

April 18, 2017
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The Interagency Security Classification Appeals Panel (ISCAP) has justifiably acquired a good reputation for its fairness in making final decisions on mandatory declassification review (MDR) appeals for national security information.  During the course of its existence since 1996, through FY 2015 it reviewed over 2400 documents and released more information from over 1800 of them, with 694 documents declassified in their entirety.  By supporting greater transparency in government, ISCAP provides an important corrective to endemic over-classification in the national security bureaucracy, although its good example has not had an appreciable impact on the practices of some agencies.

By operating on a majority rule principle, ISCAP decisions prevent the continued over-classification for specific records of a variety of agencies, especially, but not only, the Central Intelligence Agency and the Department of Defense.  When those agencies deny thirty or forty-year old documents in their entirety, other ISCAP members often take a more balanced view and vote in favor of releasing all of, or much of, the denied documents.  An early decision, in 1998, was a promising start. While defense agencies had denied the substance of a September 1964 McGeorge Bundy memorandum to President Lyndon Johnson on the emergency authorization of nuclear weapons use, ISCAP ruled in favor of full release.

Paradoxically, ISCAP’s deserved reputation, and also a failure of the declassification system, has created what amounts to a crisis. A look at ISCAP’s backlog of appeals makes the problem palpable.  It is lengthy and has grown far longer with the addition of hundreds of appeals in recent months.  The present writer has made his own contribution to the backlog and others have filed many more appeals. It is not surprising that requesters file MDRs and eventually appeal to ISCAP.  Unlike FOIA, where only one appeal is possible (before resorting to legal action), MDR provides the chance for a second appeal. Moreover, because ISCAP has a good track record, requesters believe they have a better chance of getting a reasonable decision. The lengthy queue is not surprising.

One problem that may contribute to the growing queue is a collective failure by ISCAP, its parent organization, the Information Security Oversight Office (ISOO), and Executive Order 13526.  According to the Executive Order, “when making decisions under sections 3.3, 3.4, and 3.5 of this order [these are the sections concerning automatic, systematic, and mandatory declassification], agencies shall consider the final decisions of the Panel.” In the early days of ISCAP, there was a hope that the Panel would create a feedback loop that would influence agency declassification decisions and standards and help them avoid bringing cases to ISCAP on the same types of information. As chairperson Roslyn Mazer explained in 1999, ISCAP’s decisions could “affect the declassification of many thousands of documents beyond what it sees directly on appeal, and enable agencies to make more consistent and efficient determinations.”

It does not appear that ISCAP has been able to use its authority to create an effective feedback mechanism. Admittedly, the Executive Order’s language “shall consider” does not give ISCAP much clout with the agencies and an effective feedback mechanism would require more demanding language, such as “must consider,” or requiring the agencies to revise instructions and manuals in light of ISCAP decisions.  Perhaps some agencies “consider” ISCAP decisions, which reflect on them, and change their guidelines and manuals accordingly.  But from long-standing patterns of denials at agencies such as the CIA and the Defense Department, it is hard to tell whether ISCAP decisions have had an impact. At some agencies, over-classification remains endemic.

The lengthy backlog of appeals means that ISCAP will not make decisions on some of them for years. An example of the problem are two appeals that the present writer filed in 2010 for documents from the U.S. Navy.  In late 2016, ISCAP made decisions on them. I suspect it will take far more than six years before ISCAP makes decisions on more recent cases in its docket.

To help prevent ISCAP from sinking under the weight of appeals, requesters can take some responsibility.  Not every denial should be appealed. It is wise to establish priorities. Filing hundreds of appeals at once can be counterproductive because ISCAP will not get to them until long after the requester needs the documents. If the excisions are small, e.g. only a few sentences or a paragraph, it might better to refrain from further appeal, recognizing that ISCAP’s resources are slender and appealing even an excision takes staff effort and paper-work.

Plainly ISCAP could use more staffing so that it can make decisions more quickly, two or three years instead of six or longer.  When vital federal operations are under attack, however, as they are now, more staffing is unlikely; what is more likely is that ISCAP’s budget will be cut along with NARA’s.  Whatever happens, ISCAP and ISOO should make even greater efforts to ensure that ISCAP decisions have an impact across the bureaucracy.  Requesters, research, historians, and others can only hope that ISCAP becomes even more effective in providing greater transparency for the activities of the U.S. government’s national security establishment.

Trump Visitor Logs FOIA Lawsuit: FRINFORMSUM 4/13/2017

April 13, 2017

Trump Visitor Logs Lawsuit

The National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW), filed a FOIA lawsuit against the Department of Homeland Security for the release of the White House visitor logs this week in the federal District Court for the Southern District of New York. The lawsuit seeks only the same data that was routinely published by the Obama administration for seven years without incident.

As the Washington Post reports, “Since President Trump took office in January, the website where such records had been publicly available has gone dark, and White House officials will say only that the policy is under review, making no assurances that they will operate with the same openness.”

The Archive suit seeks to establish that the visitor logs are agency records subject to the FOIA. “President Obama routinely released the data we’re seeking with no damage to presidential privilege,” said the National Security Archive’s Director Tom Blanton, “and this information is central to the Secret Service mission and thus clearly agency records subject to FOIA.”

Visit the National Security Archive’s website for everything you need to know about the suit.

Able Archer Could Have Started a Nuclear War with Russia in 1983

The National Security Archive’s Nate Jones teamed up with author and New America fellow J. Peter Scoblic for Slate’s cover story, “The World Almost Ended One Week in 1983,” about the NATO war game – Able Archer 83 – that could have led to nuclear war though miscalculation. How “the world survived the second week of November 1983” is in large part due to the restraint of the Air Force’s Leonard Perroots who, on the eve of retirement, “wrote a letter recalling the danger he experienced during Able Archer 83 and outlining his disquiet that the U.S. intelligence community did not give adequate credence to the possibility that the United States and Soviet Union came unacceptably close to nuclear war during Able Archer 83. He sent this letter to the President’s Foreign Intelligence Advisory Board, which was shocked into action.” As the authors note, “For decades, the U.S. government kept whole chapters of this near-catastrophe secret, but the lessons of that fraught autumn are finally coming into focus. And not a moment too soon.”

Photo illustration by Slate. Photos by DOD/National Security Archive and TASS via Getty Images.

DOJ Won’t Release Resignation Letters of US Attorneys Ousted by Trump Administration

The Burlington Free Press reports that the Justice Department is refusing to release the resignation letters of the U.S. attorneys who “left their posts at the request of the Trump administration.” The letters are being withheld pursuant to the FOIA’s personal privacy exemption, and, according to the Justice Department, none of the information is appropriate for discretionary release. Former Justice Department lawyer Allan Blutstein said the DOJ denial letter and the speed with which it was sent, “less than 10 days after receiving the request — suggest department staff conducted no search for responsive records and relied instead on the belief that all the resignation letters are exempt from disclosure.”

Big Day in Open Government Coming Up on April 20

OGIS Public Meeting The Office of Government Information Services (OGIS) will host its first public meeting at 9 AM, also on April 20 and in NARA’s McGowan Theater. The meeting is required by the FOIA Improvement Act of 2016 and will allow the public a chance to ask questions and present oral or written statements. Register here.

FOIA Federal Advisory Committee Meeting The FOIA Advisory Committee’s next meeting will take place on April 20 at 10 AM at the National Archive’s McGowan Theater (postings on the most recent meetings can be found here and here). A representative from the Justice Department will be presenting on using e-discovery software for FOIA searches – the most efficient and cost-effective tools for conducting FOIA searches. Register here.

“Risk Avoidance” Leads to Overclassification

New guidance from the Office of the Director of National Intelligence instructs officials not to aim for perfect security when deciding whether to classify national security information. Steve Aftergood published the new guidance, which states, “A Risk Avoidance strategy — eliminating risk entirely — is not an acceptable basis for agency [classification] guides because it encourages over-classification, restricts information sharing, [and] hinders the optimal use of intelligence information in support of national security and foreign policy goals.” However, Aftergood notes that the “risk management construct is not as helpful as one would wish. That is because its proponents, including the Joint Security Commission and the authors of the new ODNI document, typically stop short of providing concrete examples of information that risk avoiders would classify but that risk managers would permit to be disclosed.”

Presidents Ford and Park making toasts at the state dinner during Ford’s visit to South Korea, November 1974.

Stopping Korea from Going Nuclear, Part II

The Ford administration had to use a combination of approaches to keep South Korea’s Park dictatorship from going forward with a suspected nuclear weapons program in the mid-1970s, according to documents posted this week by the National Security Archive and the Nuclear Proliferation International History Project.

The U.S. effort required strong bilateral political pressure, along with Canadian and French government collaboration, to stop Seoul from quietly acquiring a reprocessing plant that could have been used to produce weapons grade plutonium. Even Secretary of State Henry Kissinger, who initially may have doubted whether Seoul had a weapons program in mind, praised the outcome, agreeing with Canadian Foreign Minister Alan MacEachen that the allies had delivered a “knockout blow” against the South Korean nuclear plans.

Documents published in the new posting include:

  • A message drafted in early 1975 by CIA officer Richard Lawless indicating that new evidence about South Korea’s commitment to acquiring a reprocessing facility demonstrated that “something is clearly afoot.” Lawless played a key role in detecting the secret South Korean nuclear program.
  • Ambassador Sneider’s report of his meeting in September 1975 with Deputy Prime Minister Nam who said that President Park did not yet know about the extent of U.S. objections to the reprocessing deal and that Nam would meet with senior officials to discuss how to tell Park the bad news.
  • State Department plans to persuade the French and Canadian governments to add to the pressure on Seoul to cancel the reprocessing contract. Deputy Secretary of State Robert S. Ingersoll would ask the Canadian embassy to consider the “leverage Canada might effectively bring to bear in the nuclear area, for example, with regard to nuclear reactor sales or credits.”

Find Part 1 here.

How Are States Preparing to Meet Cyber Challenges?

A National Governor’s Association memo from December 2016 identifies commonalities and differences among 32 plans, produced by 26 states, for addressing cybersecurity incidents. The memo instructs states to create a centralized state-wide cybersecurity authority that “allows that leader to tailor employee cyber hygiene programs, recommend key legislation, foster important relationships and recognize the specific workforce needs of the state. As a result, that cyber leader will have the tools in place to adequately prepare for an event, and have the human capital and relationships in place to adequately respond to a significant cyber event.”

The document is one of 11 new additions to the Archive’s Cyber Vault.

TBT Pick – President Reagan, General Zia, Nazir Ahmed Vaid, and Seymour Hersh

This week’s #TBT pick is a 2015 posting from the Nuclear Vault on the US and the Pakistani bomb, 1984-1985. Declassified documents published by the Archive for the first time portray State Department officials on the defensive in their discussions with journalist Seymour Hersh over his article on Pakistani national Nazir Ahmed Vaid, who had been convicted of violating export control laws for trying to purchase krytrons and smuggle them out of the US. Declassified State Department documents also show internal debate over whether to enforce “red lines” for nuclear activities in Pakistan and worries about an Indian pre-emptive strike.

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Happy FOIA-ing!

Australia Fears FOI Release would “Educate…Potentially Illegal Immigrants”: FRINFORMSUM 4/6/2017

April 6, 2017

Australia Fears FOI Release would “Educate…Potentially Illegal Immigrants”

An Australian FOI request and subsequent court case has won the release of documents on “Australia’s asylum seeker turnback missions.” The program began in December 2013 and has received widespread criticism for its opacity and “lack of proper and comprehensive screening procedures [that] denies asylum seekers their basic right to seek safety, and risks their return to danger and persecution.”

An appeals panel ruling upheld the withholding of some of the requested documents, agreeing with the government that their release would damage national security (by, among other things, educating “potentially illegal immigrants”) and international relations. The released documents, which consist of “internal requests, cables, briefing papers and emails,” nonetheless do shed light on how Australia began to implement the controversial policy and some of the perceived risks.

Australian journalist Paul Farrell requested the documents in 2014 and has shared them with the Guardian.

FOIA Searches

The FOIA Advisory Committee’s next meeting will take place on April 20 at 10 AM at the National Archive’s McGowan Theater (postings on the most recent meetings can be found here and here). A representative from the Justice Department will be presenting on using e-discovery software for FOIA searches. E-discovery programs are the most efficient and cost-effective tools for conducting FOIA searches, but are expensive and under-utilized.

The National Security Archive and the Project on Government Oversight recently published the results and analysis of a joint-survey for both FOIA processors and requesters on how agencies conduct FOIA searches. Almost none of the 57 respondents stated that search procedures are working perfectly, meaning that every single FOIA shop would be smart to reevaluate their search procedures. Responses also indicate that agencies must invest in organizational FOIA processing software that can streamline the process better. Some agencies and agency components have access to state of the art e-discovery tools to search their records for the requested documents (though as was pointed out in the January 2017 FOIA Advisory Committee Meeting, some agencies only use these efficient tools after being sued); other agencies do not even search records electronically at all. Much of the poor search situation FOIA shops find themselves in today is due to the fact that their agencies bought software that “does not play well” with FOIA. FOIA professionals must make this known and advocate for future software purchases that make their jobs (and complying with the law!) easier.

OGIS Public Meeting

The Office of Government Information Services (OGIS) will host its first public meeting at 9 AM, also on April 20 and in NARA’s McGowan Theater. The meeting is required by the FOIA Improvement Act of 2016 and will allow the public a chance to ask questions and present oral or written statements. Register here.

Troop Exposure to Toxic Substances

Senators Jerry Moran (R-KS) and Jon Tester (D-MT) introduced a bill in the Senate that would require the Defense Department to declassify documents on “incidents in which members of the Armed Forces were exposed to toxic substances.” The incidents on which declassification would be required would be events in which “not fewer than 100 members of the Armed Forces were exposed to a toxic substance that resulted in at least one case of a disability that a member of the medical profession has determined to be associated with that toxic substance.”

Steve Aftergood notes that the bill’s criteria for documents that would be exempt from disclosure – “if the Secretary [of Defense] determines that declassification of those documents would materially and immediately threaten the security of the United States” – is considerably narrower than the FOIA exemption covering damage to national security. Aftergood also notes that the bill does not provide any new funding for the declassification efforts, meaning it would be done “at the expense of current declassification programs.”

The Last Superpower Summits at the Elliott School

Join the National Security Archive’s Svetlana Savranskaya and Tom Blanton next Tuesday, April 11, at GWU’s Elliott School of International Affairs to discuss their book, “The Last Superpower Summits: Gorbachev, Reagan, and Bush-Conversations that Ended the Cold War,” which publishes for the first time in print virtually every word the American and Soviet leaders said to each other in their historic summits from 1985 to 1991.

The event takes place at noon and is sponsored by the Institute for European, Russian, and Eurasian Studies. RSVP here.

“Will Not Be Competitive” – Secret CIA Assessment of Chinese Nuclear Technology 

A highly-redacted CIA Special Intelligence Report on Chinese nuclear research analyzes the 1994 discovery that a Galaxy-II computer at the Beijing National Meteorological Center was employed for nuclear-weapons-related work.

Many of the findings remain secret, but the document shows the CIA determined that the Galaxy-II’s “performance falls short of current generation Western supercomputers…The slow production schedule of the Galaxy-III assures that, even if it is finished on time, it will be eclipsed by Western advanced workstations and will not be competitive with future US or Japanese supercomputers.”

This document is one of 11 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, April 5.

TBT Pick – Israel Crosses the Threshold

Today’s #TBT pick is a 2006 posting by Avner Cohen on the Nixon administration and Israeli nuclear weapons, “Israel Crosses the Threshold.” The posting includes 30 never-before-seen declassified documents detailing the “existence of a highly secret policy debate, during the first year of the Nixon administration, over the Israeli nuclear weapons program.” Among the posting’s key findings are:

  • 1969 was a turning point in the U.S.-Israeli nuclear relationship. Israel already had a nuclear device by 1967, but it was not until 1968-1969 that U.S. officials concluded that an Israeli bomb was about to become a physical and political reality. U.S. government officials believed that Israel was reaching a state “whereby all the components for a weapon are at hand, awaiting only final assembly and testing.”
  • In the first months of the Nixon administration, senior officials such as Secretary of Defense Melvin Laird believed it was important that Washington try to check Israeli nuclear progress for the sake of stability in the Middle East.
  • On October 7, 1969 Ambassador Rabin formally provided his belated answers to the US questions: Israel will not become a nuclear power; Israel will decide on the NPT after its election in November; Israel will not deploy strategic missiles until 1972.

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Happy FOIA-ing!

Able Archer 83: “Less frightening than many have claimed”?

April 4, 2017

The following was published in Survival: Global Politics and Strategy (Vol 59 No 2).

War Scare

Sir,

In ‘Able Archer 83: What Were the Soviets Thinking’ (Survival, vol. 58, no. 6, December 2016–January 2017, pp. 7–30), Gordon Barrass makes a compelling argument that Able Archer 83 provides ‘lessons on how to analyse and respond to situations of great tension, especially when the stakes are high’ (p. 24). The article, however, includes some factual inaccuracies that the recent declassification of documents can correct.

Firstly, Able Archer 83 was not held from 2–11 November, as Barrass writes. A contemporaneous US Air Force Seventh Division after-action report, released to the National Security Archive in response to a Freedom of Information Act request, shows that Able Archer 83 did not actually begin until 7 November.1 The likely reason for this discrepancy is that the exercise scenario cited by Barrass included a backstory dating before NATO began practising its nuclear-release procedures.2 Soviet intelligence picked up, and reacted to, Able Archer 83 much more quickly than Barrass reports.

Secondly, and more significantly, recent research confirms that, contrary to what Barrass writes, there were in fact ‘troops on the ground’ (p. 17) during Able Archer 83 practising nuclear-release procedures near Ulm, Schwäbisch Gmünd and Heilbronn.3 Indeed, more than 50 NATO officers were trained weeks earlier to practise new nuclear-release procedures at the Allied Command Europe officers’ nuclear-weapons-release procedures course.4 It appears that the 1991 President’s Foreign Intelligence Advisory Board’s (PFIAB’s) admonition against describing the ‘Able Archer exercise simply as “a command and control” exercise, and thus, clearly nonthreatening to the Warsaw Pact’ was correct.5

Thirdly, it may also be important to examine whether Rainer Rupp, the East German spy credited with informing the Soviets that Able Archer 83 was not an actual strike, actually ‘attested to’ the absence of panic in Moscow (p. 19). In the same interview cited by Barrass, Rupp also states that he was told ‘the Russians are really scared’; in a 2015 interview he recounted that ‘the Soviets were completely convinced that “Able Archer” was the cover for a real nuclear strike’, though, of course, ‘the fear of a nuclear strike was unfounded’.6

Finally, Barrass makes the strong point that ‘the old rules of evidence still apply: we must give priority to what actors said at the time versus what they said later’ (p. 8). In this vein, recently declassified British Ministry of Defence documents provided to the Nuclear Information Service are stark. They show that by March 1984, the Joint Intelligence Committee (JIC) had reviewed the danger of Able Archer 83 and that at least some British intelligence officers observed ‘an unprecedented Soviet reaction to Able Archer 83 and other reports of alleged concern about a surprise NATO attack’.7 The danger described in these intelligence reports was enough to sway prime minister Margaret Thatcher to instruct her ministers to ‘consider what could be done to remove the danger that, by miscalculating Western intentions, the Soviet Union would over-react’. She also instructed the JIC to ‘urgently consider how to approach the Americans on the question of possible Soviet misapprehensions about a surprise NATO attack’.8

Barrass has authored a fine study on Able Archer 83 and its ramifications, but after my own study of the topic I disagree with his conclusion that ‘the events surrounding Able Archer were less frightening than many have claimed’ (pp. 23–4).9 As he acknowledges in endnote 50, many of the actions that the Soviets took to ready their arsenal for nuclear war remain redacted from the PFIAB report. The most comprehensive British JIC report on the episode also remains classified.10 As further secrets are revealed, we may find that the odds of nuclear war through miscalculation during Able Archer 83 were even more frightening than we now know.

-Nate Jones

Director of the Freedom of Project at the National Security Archive and editor of Able Archer 83: The Secret History of the NATO Wargame that Almost Triggered Nuclear War.

Reply from the Author

Sir,

I appreciate Mr Jones’s kind words about my article and, for my part, applaud his efforts to clarify the ‘war scare’. However, we have different perspectives on ‘the odds of nuclear war through miscalculation during Able Archer 83’. He still believes they may be ‘even more frightening than we now know’. I very much doubt that.

Mr Jones’s claim that troops were on the ground during Able Archer 83 is questionable. In part, this is because much writing and comment has confused NATO’s annual Autumn Forge field exercises with Able Archer, the command-post exercise that, every autumn, was held as the last exercise in the Autumn Forge series.

On the exact timing of Able Archer 83, I find the dates of 2–11 November to be the most helpful. The nuclear-release part of the exercise began on 7 November; the scenario of conflict started on 4 November, but 2 November was the date set by the Soviet General Staff for some Soviet forces to go onto a higher state of alert. Lower-level nuclear-training exercises, to check the skills of nuclear-force personnel under very strict security conditions, took place throughout the year. None of the cases cited by Mr Jones in his letter carry with them firm dates showing that they were in the time frame 2–11 November, let alone that of 7–11 November.

According to the PFIAB report, for example, Able Archer ‘incorporated live mobilization exercises’.11 The wording of this judgement shows that PFIAB had not researched this issue, but based its conclusions solely on being ‘told that some US aircraft practiced the nuclear warhead handling procedures, including taxiing out of hangars carrying realistic-looking dummy warheads’. No dates are given.

According to another source cited by Mr Jones in his book, a US Air Force master sergeant who participated in an exercise at platoon level, ‘Able Archer … was a full-blown Field Exercise … We actually deployed the “non-warload” [non-operational] systems to dispersal sites in the woods around Ulm, Schwäbisch Gmünd and Heilbronn. There were a number of simulated radio transmissions during the exercise that were “novel” … US troops took the missiles, erector-launchers, C2, and transload vehicles off the Combat Alert Sites and caserns at Neu-Ulm, Stuttgart and Waldheide.’12

Again, no date is given for this exercise, nor is it explained that the ‘missiles’ would have been Pershing 1As that could not reach the Soviet Union, let alone Moscow, since the first Pershing II missiles became operational only in December 1983, a month after Able Archer was held. Moreover, the fact that Pershing launchers would deploy to nearby dispersal sites and activate the communications sets to simulate the receipt of nuclear-release messages does not make Able Archer a field-training exercise. Able Archer 83 was not only about sending and receiving messages and testing the reliability of communications networks, but also a means for NATO’s SHAPE headquarters in Mons, Belgium, to check, down the chain of command, the readiness of nuclear-capable forces to execute their wartime missions, including dispersal and custodial-security procedures, and possibly the loading of dummy gravity bombs under the belly of fighter-bombers, but without actual flights.

The key point is that, for the Soviet General Staff and the Main Intelligence Directorate (GRU), such activity would have been of little significance. If the US were to launch a surprise first strike against the Soviet Union it would not begin with strike aircraft or intercontinental ballistic missiles, but with Pershing IIs. And, as I remarked above, those missiles had not yet been deployed to West Germany, let alone readied for use.

Rainer Rupp, the top East German agent at NATO headquarters in Brussels, is quoted as saying that ‘the Soviets were completely convinced that “Able Archer” was the cover for a real nuclear strike’. That remark should be taken with a good pinch of salt. While there is no doubt that many Soviet people were scared, some even fearing the worst, those closest to the hard realities of nuclear war – Yuri Andropov, Dmitry Ustinov, the General Staff and the GRU – did not expect a first strike during Able Archer.

Mr Jones rightly draws attention to the assessments of the British Joint Intelligence Committee and Thatcher’s concerns, subjects that I studied closely when I was a member of the JIC. These two issues reflected, of course, the intelligence from Oleg Gordievsky and signals-intelligence intercepts, as well as British concern about the very tough line president Ronald Reagan was taking towards the Soviet Union. However, even if the ‘most comprehensive British JIC report on the danger of Able Archer’ were to be released, it would not produce new material to support Mr Jones’s case.

Finally, I doubt that important substance lies hidden beneath the redactions in the PFIAB report. Clearly, much of the redaction is to protect sensitive sources – be they intelligence agents, intercepts, satellite imagery or material from allied intelligence services. The wording of the report’s analysis and conclusions does not suggest to me that some daunting revelation was not taken into account in its judgements.

Gordon Barrass

1. Air Force Seventh Air Division, Ramstein Air Force Base, ‘Exercise Able Archer 83, SAC ADVON, After Action Report’, 1 December 1983, http://nsarchive.gwu.edu/NSAEBB/NSAEBB427/docs/7.%20Exercise%20Able%20Archer%2083%20After%20Action%20Report%201%20December%201983.pdf.

2. Correspondence with Former SHAPE historian Gregory Pedlow.

3. Nate Jones, Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War (New York: The New Press, 2016), p. 33.

4. ‘Program for ACE Officer’s Nuclear Weapons Release Procedures Course I-34-49, October 17-21, 1983’, NATO School, Oberammergau, Germany, held at the National Security Archive.

5. President’s Foreign Intelligence Advisory Board, ‘The Soviet “War Scare”’, 15 February 1990, p. 35, http://nsarchive.gwu.edu/nukevault/ebb533-The-Able-Archer-War-Scare-Declassified-PFIAB-Report-Released/2012-0238-MR.pdf.

6. ‘Rainer Rupp About “Able Archer”, His Work in NATO Headquarters, the Syrian War and the Conflict with Russia’, Workers World, 19 September 2015, http://www.workers.org/2015/10/16/rainer-rupp-about-able-archer-his-work-in-nato-headquarters-the-syrian-war-and-the-conflict-with-russia.

7. UK Ministry of Defence, ‘Soviet Union: Concern About a Surprise Nuclear Attack’, 8 May 1984, https://nsarchive.files.wordpress.com/2013/11/document-9.pdf.

8. ‘Soviet Concern About a Surprise NATO Attack’, 10 Downing Street memo, 10 April 1984, https://nsarchive.files.wordpress.com/2013/11/document-7.pdf.

9. Nate Jones, Able Archer 83.

10. Nate Jones, ‘Why the Key Able Archer 83 Report Should Be Released Under UK FOIA’, National Security Archive, 18 November 2015, https://nsarchive.wordpress.com/2015/11/18/why-the-key-able-archer-83-report-should-be-released-under-uk-foia/.

11. President’s Foreign Intelligence Advisory Board, ‘The Soviet “War Scare”’, 15 February 1990, p. 35, http://nsarchive.gwu.edu/nukevault/ ebb533-The-Able-Archer-WarScare-Declassified-PFIAB-ReportReleased/2012-0238-MR.pdf.

12. Nate Jones, Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War (New York: The New Press, 2016), p. 33, note 50.

FOIA Search Survey Results and Analysis

March 31, 2017

By Swetha Kareti, Nate Jones, and Sean Moulton

Download the PDF version of this report here

The National Security Archive and the Project on Government Oversight developed and circulated an online survey to both FOIA processors and requesters to better understand how agencies search for records requested under the Freedom of Information Act (FOIA).  The aim of this survey was to establish a foundation of knowledge on how agencies across government complete perhaps the most agency-unique, complicated, and time-consuming aspect of the FOIA process: finding the documents that have been requested under the law.

METHODOLOGY

The National Security Archive and the Project on Government Oversight used Google Forms online software to prepare the survey.  Respondents first identified themselves as either a FOIA requester or a FOIA processor.  Different sets of questions for were given to each group, and the results were kept completely anonymous in order to allow respondents to answer candidly. The survey was conducted over a nearly month-long time frame, during which it received 57 responses. Of the 57 responses in total, 30 were processors and the remaining 27 were FOIA requesters.

The questions we asked were:

For Requesters:

  • Please describe in as much detail as possible the FOIA search procedures that you are aware of (from personal knowledge, government reports, and/or court declarations).
  • If not described above, please describe the procedures for searching email and other electronic records that you have knowledge of.
  • Are there inefficiencies in the FOIA search procedures that you are familiar with? If so, what are they? How could they be improved?
  • Please provide links or other references to documentation of FOIA searches that you are aware of.
  • Anything else you would like to add?

For Processors:

  • Which agency do you currently work for? Your identity will remain anonymous.
  • What search software does your agency use? Approximately how old is the software? Are you satisfied with it?  Are there notable limitations with the software that you think should be addressed?
  • Please describe in as much detail as possible the FOIA search procedures at your agency or other agencies that you have knowledge of.
  • If you have not described it above, please describe the procedures for searching email and other electronic records at your agency or other agencies that you have knowledge of. Do you have the ability to search electronic records?  If not, what is the reason given for this?
  • Are there inefficiencies in the FOIA search procedures that you are familiar with? If so, what are they? How could they be improved?
  • Anything else you would like to add?

THE SEARCH PROCESS

The Department of Justice Guide to the Freedom of Information Act states that, “The FOIA defines the term ‘search’ as ‘to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request’” and that,  “[a]s a general rule, courts require agencies to undertake a search that is ‘reasonably calculated to uncover all relevant documents.’”  But the Guide provides little guidance as to the mechanisms agencies can or must use to “uncover all relevant documents.”  In practice, each of the 100 different agencies subject to the Freedom of Information Act completes searches in its own unique way.  According to the results of this survey, some agencies use state of the art software, while others use no software at all.

Our survey showed in practice –and it is important to remember the high level of variance between each of the 100 agencies subject to FOIA– that the search process goes something like this:

First, an agency receives a FOIA request.  The request goes through an “initial phase” where an agency reviews if the request was sent to the correct agency or component, determines the request’s fee category and/or fee waiver status, and asks and answers other “initial” questions.  The time this phase takes ranges from hours to months, depending on the agency.

Then, the request goes into a queue to be processed once it has been “perfected.”  Generally, the first phase of processing a request is for the requested document or documents to be searched for.

The FOIA Ombudsman, the blog of the Office of Government Information Service (OGIS), states that, “It appears that frequently, Agencies are responsible for a mind-boggling amount of information, and finding a record amid years and years of accumulated documents can feel like searching for the proverbial needle in the haystack.”  This assessment appears to be largely correct.

Moreover, each agency searches their “haystack” in their own way.   Some appear to do so methodically and efficiently, others haphazardly and imprecisely.  Some agencies and agency components have access to state of the art e-discovery tools to search their records for the requested documents (though as was pointed out in the January 2017 FOIA Advisory Committee Meeting, some agencies only use these efficient tools after being sued); other agencies do not even search records electronically at all.

Some FOIA professionals, including those at the Department of State, have centralized search capabilities, meaning that they have the ability to search large portions of their agency’s records themselves.  Because the primary mission of FOIA processors at agencies is to process FOIA requests as quickly as possible, and because FOIA professionals are often well-trained at records management and retrieval, often centralized search is the quickest way to procure the documents requested.

Most agencies, however, appear to not have centralized FOIA search capabilities.  This means that after the FOIA office receives a request, it “tasks it out” to the part of the agency that it believes is likely to have the documents.  Then, in addition to all of their other job obligations, these federal employees –sometimes termed “subject matter experts”–  are tasked to retrieve the requested document and provide it to the FOIA office to review (often with suggestions on what should be withheld or released).  Although the Department of Justice states that, “FOIA is everyone’s responsibility,” often these “subject matter experts” perform slow, unthorough, or otherwise imprecise searches for the requested records.  According to the review of the responses to this survey, this “search black hole” –when “subject matter experts” do not quickly respond to search taskings by the FOIA department– appears to be one of, if not the, primary causes for unacceptably long response times to FOIA requests.

The FOIA office then receives the requested document or documents, reviews them, and sometimes redacts them for release.  Unfortunately, statistics show that an extremely large percentage of FOIA requests (over 16 percent) are denied because an agency claims that “no responsive records were found.”  Certainly, there are cases where requesters send requests to the wrong agency, request documents that do not exist, or where the requested records were properly (or improperly) destroyed.  But many of these “no responsive document” denials are in fact the result of improper or poorly conducted searches.  Administrative appeals often result in a second, more thorough search that finds the documents requested.

Finally, after the FOIA office receives and reviews the requested documents –and if coordination or referral with another agency or component is not required– the last step is mailing or emailing the records to the requester with a letter explaining the number of documents released, the justification for any redaction, and the rights of the requester to appeal or contact OGIS.

ANALYSIS

After reviewing the results of our survey, the National Security Archive and the Project on Government Oversight’s have come to the following conclusions about the FOIA search processes:

  • Every single FOIA shop would be wise to reevaluate their search procedures; almost none of the 57 FOIA requesters and processors surveyed stated that search procedures are working perfectly.  Senior agency officials and FOIA managers should ask their teams what can be done –much without spending more money– to improve searches.  Agencies and FOIA professionals must resist the temptation to not improve processes, simply because “they have always been done this way.”
  • FOIA search processes are not nearly as streamlined or as optimized as they could be. According to the survey, 25% of FOIA professionals did not use any electronic or searchable databases in order to process FOIA requests. Another 28.6% of respondents used “combination” search methods, which were usually a mix of databases alongside other methods, like email searches, to process these requests. In short, over 50% of the FOIA processors responded that they did not use an agency-wide database/tracker in order to process FOIA requests. Clearly, the lack of standardized software/search methods in FOIA processing can lead to major inefficiencies and delays.
  • Agencies must invest in organizational FOIA processing software (if they have not already) that can effectively streamline the process. Moreover, agency decision makers and software purchasers must factor in FOIA-searchability when they purchase other software used by their agency. Much of the poor search situation FOIA shops find themselves in today is due to the fact that their agencies bought software that “does not play well” with FOIA.  FOIA professionals must make this known and advocate for future software purchases that make their jobs (and complying with the law!) easier.
  • Agencies should allow FOIA processors to search all digital records agency-wide. Allowing these records to be searched digitally in response to FOIA requests will greatly decrease the time it takes to process FOIA requests.  While there is some notable opposition to this strategy for privacy, security, and other concerns (one respondent wrote FOIA processors should not have a “skeleton key” to all agency records), it should be recognized that allowing non-FOIA employees to search through emails without supervision and possibly delete, or simply not provide requested emails or other records, is also not a viable solution.
  • It is true that FOIA searches are often a low priority for departments and agencies, and consequently receive very little funding. While we are sympathetic to this concern and agree that the best FOIA programs consistently have support from the top of their agency, many of the problems with FOIA searches are due the implementation of ingrained, unquestioned inefficiencies.  It is extremely likely that many of these inefficiencies can be fixed with no or minimal funding increases.  Agency heads, senior FOIA officials, and FOIA processors should put their heads together and reevaluate which fixes, small and large, could be implemented to the most inefficient part of the FOIA process: the search for records.

NOTABLE FOIA SOFTWARE/SERVICES

According to our survey and product websites, the following software programs are used by the following agencies to conduct their FOIA searches.

While there may not be a workable solution to allow FOIA professionals to centrally search all paper records (including those, for example, held at agencies’ remote field offices), electronic records –including emails– hold the promise of allowing FOIA professionals to quickly and efficiently search for the records themselves.  Allowing centralized search by FOIA professionals would likely, “cut out the middleman” and greatly reduce the time it takes to process requests.  According to results of this survey, some agencies are moving in this direction with their digital records, others are not.

Clearwell

https://www.veritas.com/product/information-governance/ediscovery-platform

National Marine Fisheries Service, Department of Education.

Eos.web

Bureau of Reclamation UC Region

Email

National Park Service, Corporation for National and Community Service.

FOIA Online

https://foiaonline.regulations.gov/foia/action/public/home

The Environmental Protection Agency, Department of Commerce (except the US Patent and Trademark Office), U.S. Customs and Border Protection, Office of General Counsel of the National Archives and Records Administration, Merit Systems Protection Board, Federal Labor Relations Authority, Pension Benefit Guaranty Corporation, Department of the Navy, General Services Administration, Federal Communications Commission, Small Business Administration, Department of Justice – Office of Information Policy, Defense Logistics Agency and the Office of the Inspector General of the Department of Defense (per website).

FOIAXpress

http://ains.com/foiaxpress/

Court Services and Offender Supervision Agency, United States Forest Service.

Infolinx

http://www.infolinx.com/

Bureau of Reclamation.

Laser Fiche

https://www.laserfiche.com/

Department of Commerce.

SEMS-RM

Environmental Protection Agency  (as contractor)

SORNS

United States Customs and Border Protection

ZL Tech

http://www.zlti.com/

National Archives and Records Administration.

Combination of databases

Department of the Interior, Defense Information Systems Agency, Environmental Protection Agency (Region 4), United States Bureau of Reclamation, Department of Health and Human Services.

None

National Guard Bureau, Navy (Field Activity), US Forest Service, Bureau of Land Management, United States Fish and Wildlife Service, National Institutes of Health, National Oceanic and Atmospheric Administration

RAW DATA

The complete set of full survey responses can be viewed here.

Exemption 5 Can’t Go International: FRINFORMSUM 3/30/2017

March 30, 2017

Court Says FOIA’s Exemption 5 Protections for “Inter-Agency” Communications Don’t Apply to Foreign Agencies

The Sixth Circuit Court of Appeals ruled that the FOIA’s Exemption 5 – the oft-abused “deliberative process” exemption that allows the government to withhold inter and intra-agency communications – does not apply to communications with foreign agencies. In the case, Lucaj v. FBI, the FBI tried to argue that B5 protected requests for assistance between the agency and Austria and another unnamed country as part of an investigation into a man suspected of meddling in elections in Montenegro. Judge Karen Nelson Moore did not agree with the bureau, writing that “inter-agency” protections require both the sender and receiver be an agency or authority of the United States. Lawfare’s Michael Linhorst writes, “The court also rejected the government’s argument that the requests at issue are covered by the ‘common-interest doctrine,’ which ‘permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims.’”

Air Force Looks to Embrace Proactive Disclosure

A new Air Force Instruction orders the agency and its components to adopt an information policy of “maximum disclosure, minimum delay.” The Instruction highlights the importance of proactive disclosure, saying that Air Force FOIA reading rooms should post information “that has been requested via FOIA or could be requested via FOIA.” Doing so, as the Air Force notes, would both contribute to the “free flow of information between the public and the government,” and would also “minimize the federal paperwork burden on the public, minimize the cost of its information activities, and maximize the usefulness of government information.” Steve Aftergood published the new Instruction on his website, noting that, “By itself, the new policy does not mean that the Air Force is now practicing maximum disclosure or that it will necessarily do so in the future. The policy is not self-enforcing. Still, it represents an official statement of Air Force values, and it therefore provides a point of leverage that can be used by anyone, in the service or among the public, who would seek to uphold those values in practice.”

Can You Find All the FOIA Reading Room Errors?

If you’ve ever run across a FOIA reading room made almost inaccessible by a security certificate saying that the connection is not private, please add them to the FOIA.wiki’s page cataloging FOIA Reading Room Errors. Current known offenders are the Army, CENTCOM, and the Air Force – who are we missing?

OGIS Report Highlights Where Compliance, Recommendations Stand

The Office of Government Information Services’ (OGIS) 2016 annual report, Building a Better FOIA Process, is a good overview of both OGIS’s accomplishments and workload over the last year (787 cases opened in FY 16 quarter 4 alone). The report also has an informative overview of where agencies stand working towards OGIS’ compliance recommendations and recommendations to agencies:

FOIA Request Shows Robert Mercer Funded Milos Yiannopolous’ College Speaking Tour

A FOIA request to the University of Washington from MuckRock user Matthew Guariglia seeking information on Milo Yiannopolous’s college campus speaking tour, particularly his speaking fee, shows hedge-fund billionaire Robert Mercer funded the endeavor. Mercer funded the trip through a small production company, Glittering Steel, LLC, which also made contributions to President Donald Trump and Senator Ted Cruz’s presidential campaign. Mercer, along with his daughter Rebekah, have also invested a reported $10 million in Breitbart News, Yiannopolous’s former employer.

IRS Sends MuckRock Password Protected Glomar

The IRS responded to a MuckRock FOIA request for financial investigations into three Ukrainian nationals with a locked, unreadable PDF. A separate email contained the password, which ultimately opened the PDF. What did the PDF reveal? A Glomar response – the agency could neither confirm nor deny any of the records sought.

Number of Exemptions to Florida’s Disclosure Law Tops 1,000

There are 1,119 exemptions to Florida’s Sunshine Law. Florida’s First Amendment Foundation tracks the carve-outs, and the Florida Society of News Editors recently launched a project to commemorate Sunshine Week that will keep a “scorecard” to track the foundation’s priority list of public records exemptions. FSNE members will create a permanent scoring system to grade legislators on their introduction of bills and their final votes.” Some of the exemptions include a law exempting autopsy photos from public release, and a proposed bill that would exempt all information about crop-dusting information.

Secret South Korean Nuclear Weapons Program Created Anxiety in Washington in Mid-1970s

President Park Chung-hee reportedly instructed South Korean scientists to build nuclear bombs by 1977, according to a secret report to Secretary of State Henry Kissinger newly posted by the National Security Archive.  The Ford administration accumulated other evidence that raised worries about proliferation and regional instability. The posting, the first of two on US policy toward South Korea’s atomic weapons program in the mid-1970s, is based on a wide variety of declassified sources, including records released through mandatory declassification review. They offer an account of the first stages of what became a successful U.S. effort to keep an ally from engaging in destabilizing proliferation activity in one of the world’s enduring trouble spots.

Dead Reckoning

The National Security Archive’s Kate Doyle participated in PBS’s recent three-part documentary, Dead Reckoning, which “follows war crimes investigators and prosecutors as they pursue some of the world’s most notorious war criminals…The principles, legal doctrines and tactics that emerged from those pursuits now inform the effort to expose, prosecute, and punish present day human rights violators whose depredations have left millions dead and displaced.”

Doyle, the Archive’s Guatemala Documentation Project director, is featured in part two’s Guatemala sequence that also includes Claudia Paz y Paz, Fredy Peccerelli, and Naomi Roht-Arriaza, among others.

TBT Pick – Drugs and the Guatemalan Military

This week’s #TBT pick is chosen with the PBS documentary in mind and is a 2005 posting that highlights investigative journalist Frank Smyth’s work “documenting links between retired Guatemalan military officers and drug trafficking in the United States.” Smyth’s work uses declassified US documents obtained by the National Security Archive’s Guatemala project through the FOIA. Records provided by the National Security Archive for the story describe a powerful and brutal military institution with intimate ties to the United States and a history of corruption. They include information on:

  • Scorched-earth tactics used by the Guatemalan army during the 30-year civil conflict that resulted in hundreds of thousands of dead and missing;
  • The military’s vast web of informants available to them during and after the conflict;
  • How one corrupt ex-officer, Lt. Col. Carlos Ochoa Ruiz, used his connections in the military to protect drug trafficking and car smuggling operations inside Guatemala.

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OIP Has No Answer to FOIA Audit Showing 3 out of 5 Agencies Flouting New FOIA Law: FRINFORMSUM 3/16/2017

March 16, 2017

Houston, We Have a Problem if 3 out of 5 Agencies Ignore New FOIA Law

Three out of five of all federal agencies are flouting the new law that improved the Freedom of Information Act (FOIA) and required them to update their FOIA regulations, according to the new National Security Archive FOIA Audit released to celebrate Sunshine Week.

The National Security Archive Audit found that only 38 out of 99 federal agencies have updated their FOIA regulations in compliance with the FOIA Improvement Act of 2016 that was passed with bipartisan, bicameral support. The new law required agencies to update their FOIA regulations within 180 days of passage – that was June 30 so December 27, 2016 was the deadline.

Because 61 agencies have not updated their FOIA regulations, many requesters may still be charged improper FOIA fees if an agency misses a deadline, could be unaware of the mediation services available to them, and are being robbed of their rightful appeals deadlines. While the law mandates that requesters be given “not less than 90 days” to file an appeal, many agencies with outdated regulations routinely give requesters much shorter 30, 45, and 60-day deadlines.

The audit faulted the Department of Justice’s Office of Information Policy (OIP) for “clearly failing in its mandate to oversee FOIA compliance throughout the federal government.”

In response, OIP head Melanie Pustay said, “Since passage of the FOIA Improvement Act of 2016 the Office of Information Policy has engaged in a wide range of activities to inform and advise agencies of their obligations under the new statutory provisions.” It remains clear, however, that with 3 out of 5 agencies ignoring the new law – whatever guidance and assistance OIP is providing is not nearly enough.

Sunshine Week Round-Up

Archive director Tom Blanton speaks at NARA event on “FOIA After 50”

Sunshine Week 2017 kicked into full gear on Monday at the U.S. National Archives in an event hosted by the Office of Government Information Services (OGIS).

Archivist of the United States, David Ferriero, noted in his opening remarks that he was pleased to see continued bipartisan support for the FOIA – a sentiment the entire open government community shares. Ferriero also stated, in response to a question from the Sunlight Foundation’s Alex Howard, that NARA always follows up with agencies when it sees news reports of agencies taking down information from their websites to ensure that – if the records are covered by the agencies records control schedule – to ensure the information is preserved. Ferriero pressed the audience and the public to visit each agency’s website to view their control schedules.

National Security Archive director Tom Blanton, University of Maryland College of Journalism dean Lucy Dalglish, and Ralph Nader joined Tom Susman for a panel on FOIA after 50. Nader – who called the Archive “the majordomo” of FOIA – cited Archive FOIA project director Nate Jones’ 2015 House testimony to recount the problems FOIA currently faces, calling for a massive expansion of usage, especially among the young. Blanton noted that while FOIA has its problems – in no small part captured by the Archive’s latest audit – the law continues to be one of the most important drivers of the news – recently shedding light on Mike Pence’s use of private email while governor of Indiana, EPA head Scott Pruitt’s collusion with the oil and gas industry, and national security adviser H.R. McMaster’s official reprimand for his handling of a sexual assault investigation.

Representatives Jason Chaffetz and Elijah Cummings both provided remarks, with Cummings citing Tom Blanton’s December 2016 House testimony that the new sunset provision in the FOIA Improvement Act of 2016 “has already resulted in the release of documents on the Bay of Pigs incident the CIA had hidden away for more than 50 years.”

Check out the video here.

Forecasting Freedom of Information,” a survey directed by the University of Arizona’s journalism professor David Cuillier and sponsored by the Knight Foundation, found that “Nearly 9 of 10 experts who contributed to this study—be they journalists, librarians, nonprofit groups or government employees—fear the new administration will worsen freedom of information and government transparency.” The authors of the study make the case for a “freedom of information renaissance” to counter the threat. The authors argue the four priorities that should define such an effort are: banding together, taking FOIA fights increasingly local, increasing education and advocacy, and developing digital technology.

The Electronic Frontier Foundation announced the winners of the 3rd annual FOILIES award for worse open government performance. “Winners” included Donald Trump for his efforts to Make America Opaque Again, Mike Pence for vilifying Hillary Clinton’s private email and server while maintaining his own Private AOL account, and the Justice Department of sending a FOIA response not to the intended requester – but instead to an inmate in federal prison serving time for child pornography charges. “The offender, however, was nice enough to forward the message to the PAC with a note railing against the ‘malicious incompetence’ of the Obama administration.”

Anatoly Chernyaev with his partner Lyudmila Rudakova and their dog Yashka in September 2016″ (photo by Tom Blanton)

Archive Hero Anatoly Chernyaev Dies at 95

The National Security Archive mourns the passing of our dear friend, mentor, inspiration, and colleague, Anatoly Chernyaev, in Moscow at the age of 95.

Anatoly Sergeyevich ranks as a leading protagonist of the peaceful end of the Cold War, a pioneer of “new thinking” on mutual security in international relations, and a transformative visionary for a demilitarized and democratic Soviet Union and a new Russia that tragically never came to be.

He served as the national security adviser to Soviet leader Mikhail Gorbachev from March 1986 through the end of the USSR in December 1991, preparing, participating, and often taking the official Soviet notes at summit meetings with U.S. presidents Reagan and Bush, and with world leaders ranging from Margaret Thatcher to Rajiv Gandhi.

A champion of glasnost and access to sources, Anatoly Chernyaev was a luminary of the Gorbachev Foundation at its finest. His generosity put all scholars who study the end of the Cold War in his debt. He remains our hero.

His Washington Post obituary is here.

Finding Oscar

Reserve your seat now for a free screening and discussion of the documentary “Finding Oscar” at Busboys in Poets in DC next Thursday, March 23.

The filmmakers attempt to find Oscar, a young boy who was spared from a massacre during Guatemala’s decade-long civil war – only to be raised by one of the soldiers who killed his family. In finding Oscar, the filmmakers hope “to uncover the truth and bring justice to those responsible.”

Join the National Security Archive’s Kate Doyle, ProPublica’s Sebastian Rotella, the Washington Office on Latin America’s Geoff Thale, and the Department of Homeland Security’s Kelly Fry for a discussion after the screening to explore the continuing hunt for fugitive commandos involved in the Guatemalan massacre and other past atrocities in Central America – some of whom are in the United States – as well as the parallels between Oscar’s story and the intensifying conversation around immigration and refugees in the United States today.

Naval Academy Professor says Section 702 Complies with Fourth Amendment

Congressional testimony from Naval Academy cybersecurity law professor Jeff Kosseff found that, regarding the Fourth Amendment, Section 702 of the FISA “is substantially different from the massive dragnet operation portrayed in the media reports. I discovered an effective foreign intelligence program that is subject to rigorous oversight by the three branches of government and, under the totality of the circumstances, complies with the Fourth Amendment.” Kosseff notes, however, that without the important work done by the Privacy and Civil Liberties Oversight Board, an evaluation of the program would have been impossible.

Kosseff finds, among other things, that “because foreign intelligence is a special need that is distinct from normal law enforcement, the Fourth Amendment does not require a warrant for Section 702,” and that, “On balance, the FBI’s ability to query Section 702 data, as described in the public record, does not render Section 702 unconstitutional.”

This document is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, March 15.

A 2005 report from the National Ground Intelligence Center speculated that Beijing might be trying to develop a capability to incapacitate Taiwan electronically without triggering a U.S. nuclear retaliation. (Document 11)

#TBT – US Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick is a 2011 posting on US intelligence agencies monitoring Chinese weapons development. The posting includes primary sources on an array of issues, including:

  1. Estimates and studies of the China’s foreign and defense policies, strategic power, scientific and industrial capabilities, and domestic affairs;
  2. Biographical information on Chinese military and civilian leaders;
  3. Studies of the possibility of a PRC-Taiwan clash (whether over islands in the Taiwan Straits or Taiwan itself);
  4. Materials discussing Taiwan’s production of conventional arms, and its occasional quest to develop nuclear weapons.

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