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DHS IG Orders Preservation of Docs on Implementation of Immigration EO: FRINFORMSUM 2/2/2017

February 2, 2017

 

dhsimmigrationDHS IG to Investigate Implementation of Executive Order on Immigration

The Department of Homeland Security Office of the Inspector General, heeding requests from Illinois senators Tammy Duckworth and Dick Durbin, will investigate the department’s implementation of Donald Trump’s “executive order barring travelers from seven Muslim majority countries.” An internal document obtained by The Intercept also shows that the IG has ordered all employees to “preserve any document that contains information that is potentially relevant to OIG’s investigation, or that might reasonably lead to the discovery of relevant information relating to the implementation of this Executive Order. For the duration of this hold, any relevant information that is within your possession or control must be preserved in the exact form as it currently exists.”

Senators Duckworth and Durbin also asked the DHS IG whether Customs and Border Protection officers complied with court orders mandating a nationwide stay of the EO, and whether officers “kept a list of individuals that they detained at ports of entry.”

Trump Transition Team Email Implies Desire to Replace IG’s Government-wide

A January 13 email from the Trump transition team’s Katie Giblin, obtained by the House Oversight Committee, shows a move by the new administration to replace inspectors general across the government. The email guides “all transition team leaders to ‘reach out tonight and inform’ the inspectors general in their agencies ‘that they are being held over on a temporary basis.’”

There are currently 73 inspectors general across the government, entrusted to audit and investigate their departments and report to both Congress and agency heads. The Washington Post notes that half of these positions are appointed by agency chiefs, the other half by the president; there are currently nine vacancies.

The letter caused concern because Inspector General reports are a critical part of ensuring effective oversight and accountability, and to perform their roles IGs must be politically independent.

Recent examples of IG reports include:

  • A December 2016 Defense Department Inspector General report on cybersecurity weaknesses. The IG found “that, despite a commitment of more than $34 billion over the next five years, the DOD ‘continues to struggle with ensuring that all aspects of its information security program are adequately implemented.’”
  • An October 2016 State Department Inspector General report on classification activity found that a report from the Information Security Oversight Office on a drop in original classification decisions was “inaccurate and incorrect.”
  • An October 2016 Justice Department inspector general report faulted 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.”

House Oversight Chair Jason Chaffetz said the White House’s general counsel “told him the phone calls to inspectors general were a ‘mistake’ and the work of a ‘junior person.’ The inspectors general were later told to disregard the initial calls.”

DOD IG Finds “Perception” of Intel Distortion, not Actual Distortion

The Defense Department Inspector General, investigating accusations that CENTCOM “regularly produced intelligence that distorted the results of the campaign against the Islamic State, suggesting that command leaders shaped analysis in a way that resulted in a more upbeat depiction of the war,” found no systemic attempt to distort intelligence. Rather, the IG found “a strong perception of such distortion” caused by, among other things, a frantic work pace and lack of communication between senior leadership and analysts.

FBI Broadens Legal Arguments for Withholding iPhone Hacking Information

The FBI has broadened its arguments for withholding information on how it unlocked an iPhone used by one of the San Bernadino shooters in a FOIA suit brought by the Associated Press. Last month the Justice Department, the bureau’s parent agency, released heavily redacted documents as part of the ongoing suit, but in new legal filings defending the remainder of the redactions, the bureau is now asserting “that national security was at risk and that the records were entirely exempt from disclosure under the law.” Some of the records in question concern how much the bureau paid an unidentified third party to unlock the phone.

Spike in FOIA Requests and Federal Hiring Freeze a Headache for FOIA Offices

FOIA offices are feeling squeezed by the spike in FOIA requests submitted since the November election combined with the Trump administration’s federal hiring freeze. Federal News Radio’s Meredith Somers recently reported that there is an upside to the surge in requests – good FOIA officers following the “rule of three” and posting frequently requested information. Even better? FOIA offices proactively posting documents likely to be the subject of future FOIA requests.

Collaborative Approach to FOIA and Donald Trump

3,000 people have signed up for MuckRock’s Slack channel as of Monday to learn how to most effectively use FOIA to cover Donald Trump. The channel, launched the week after Trump won the election, “works to help build [FOIA] requests, workshop ideas, ask questions and share results.” More information on the channel, as well as other collaborative efforts to cover the new administration, can be found here.

CJR Analyzes 33,000 FOIA Requests to Try and Identify What Works Best

The Columbia Journalism Review recently announced the results of its efforts to systemically analyze 33,000 FOIA requests to determine what characteristics were shared by successful FOIA requests (defined as records release in full). The study, which focuses on five agencies currently using FOIAonline and requires further unpacking, does hammer home one very important point: know the records systems and organizational structure as well as you can for whichever agency you are filing a request with. In most instances, FOIA officers are not subject matter experts, and the more a requester can help the FOIA officer find the records sought, the better the response to the request will be. Practically speaking, one of the easiest ways to do this is to examine an agency’s organizational chart and ask FOIA officers to include the most likely responsive offices in their search.

The FOIA We File Immediately

No wonder he fought so hard against allowing the public to access his papers...

No wonder he fought so hard against allowing the public to access his papers…

Donald Trump’s nomination of Neil Gorsuch of the Tenth Circuit Court of Appeals for Supreme Court justice prompted open government advocates to dig for evidence of any of Gorsuch’s past FOIA rulings. There appear to be none.

Journalist Ken Klipperstein did, however, track down Gorsuch’s Columbia yearbook photo where his chosen quote is Henry Kissinger saying, “The illegal we do immediately, the unconstitutional takes a little longer.” This was a favorite phrase for Kissinger, but who explained in 1975 in conversation with Turkish Foreign Minister Melih Esenbel, that “since the Freedom of Information Act, I’m afraid to say things like that.

mysterybeerCIA Director Casey Says Thanks for the Delicious [REDACTED]

MuckRock recently posted a gem from the CIA’s newly-electronically available CREST database (the 13-million page database of already declassified document was, until this year, only available onsite at the National Archive’s College Park location in Maryland). It is a head-scratchingly redacted 1981 letter “to an unidentified Ambassador from former CIA Director William Casey, thanking him for the surprise gift of two cases of beer.” What kind of beer? The brand, while identified as being delicious, is redacted. The CIA applied 25X1 as a reason for the exemption, an exemption intended to protect confidential human sources and prevent the degradation of an intelligence method.

Intelligence Community Directive Number 500

A 2008 Director of National Intelligence (DNI) Intelligence Community Directive outlines the authorities and responsibilities of the IC’s Chief Information Officer – including permitting “the DNI to protect intelligence sources and methods while maximizing the dissemination of intelligence.” This unclassified document is one of 11 new additions published in the National Security Archive’s Cyber Vault on Wednesday, February 1.

TBT Pick – The Nixon Administration, the SIOP, and the Search for Limited Nuclear Options, 1969-1974

This week’s TBT pick is a 2005 posting of declassified documents on nuclear war planning during the Nixon years. The posting of 26 declassified documents analyzes the Nixon administration, the Single Integrated Operation Plan (SIOP), and the search for limited nuclear options from 1969-1974.

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FOIA Federal Advisory Meeting Underscores Questions of ‘Release to One, Release to All’ Policy and FOIA Portal Budget: FRINFORMSUM 1/26/2017

January 26, 2017
The Justice Department's Melanie Pustay answers (sort of) questions during the FOIA Advisory Committee meeting.

The Justice Department’s Melanie Pustay answers (some, definitely not all) questions during the FOIA Advisory Committee meeting.

DOJ’s Pustay Refuses to Answer Questions During 2017’s First FOIA Advisory Committee Meeting

The FOIA Federal Advisory Committee held its first meeting of 2017 today. Chaired by the Office of Government Information Services’ new head, Alina Semo, it focused on presentations from its three subcommittees: proactive disclosures, efficiencies and resources, and searches.

Highlights from the meeting included a terrific presentation from Health and Human Services’ Michael Marquis, which begins around the 50’ mark. Marquis helped the HHS FOIA shop reduce its backlog by 10 per cent over the last seven years. When asked what his biggest piece of advice was for other agencies wishing to follow suit, he answered that the best way to improve FOIA processing going forward, both within his agency and across the government, would be an enterprise-wide tracking system for both requests and appeals.

The Justice Department’s Office of Information Policy head, Melanie Pustay, noted during the public Q&A session in response to a series of questions from the Sunlight Foundation’s Alex Howard, that it is “absorbing” the comments it received for its ‘release to one, release to all’ FOIA policy, and that it has received money to launch an online FOIA portal for this fiscal year and is eager to get going on the project. Pustay said that her office hopes to launch the first phase of the FOIA portal in a few weeks with the help of 18f, and that the launch will begin with a three-month discovery period.

The meeting ended, however, on an unnecessarily caustic note. When pressed by Howard about 1) when the Justice Department would meet a missed January 1, 2017, deadline for a final ‘release to one, release to all’ policy, and 2) what budget was being allocated for the FOIA portal, Pustay refused to answer the questions, saying the tone they were asked in was unnecessarily adversarial. Questions of tone aside (video begins at the 2”24’ mark so take a look and judge for yourself), the questions were fair and should be addressed.

Senior Trump Aides have Two Weeks to Preserve Emails from RNC Accounts

Deadline - 20 days.

Deadline – 20 days.

Senior Trump administration officials using Republican National Committee email accounts on Inauguration Day have two weeks to copy those emails into official White House records systems. If not, they will be in violation of the Presidential Records Act, which states “the President, Vice President, or covered employee [has] not later than 20 days after the original creation or transmission of” an official record to transfer them to official systems.

Newsweek reported on January 24 that senior Trump staffers, including Kellyanne Conway, Jared Kushner, Sean Spicer and Steve Bannon, maintained active rnchq.org emails accounts – accounts that were deleted on Wednesday, January 25 after the initial Newsweek story ran. The onus is still on these officials to preserve any government-related RNC emails that were sent on or before January 25 onto White House servers.

 

Sunlight Foundation Making a List of Agencies Ordered to Scale Back Public Communication

The Sunlight Foundation is curating a list of federal agencies that have been ordered by the Trump administration to either limit or stop their communication with the public. The list includes the Department of Health and Human Services, the Environmental Protection Agency, the Department of Agriculture’s Agricultural Research Service, the National Institute of Health, and the departments of Interior, Energy, and Transportation.

PIDB Wants to Prioritize Presidential Library Records

Last December the National Security Archive’s FOIA Project Director Nate Jones presented three tangible steps that could be taken to fix the classification and declassification system before the Public Interest Declassification Board. Jones urged the Board to: further improve the efficiency of the National Declassification Center and expand its authority; fully realize the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document; and “get into the declassification business.”

Jones was joined by Steve Aftergood, the Brennan Center’s Liza Goitein, and Patrice McDetmott of OpenTheGovernment.org. All of their White Papers can be found on the PIDB’s blog, Transforming Classification.

Unfortunately, the December 2016 Office of the Director of National Intelligence report, “Improving the Intelligence Community’s Declassification Process and the Community’s Support to the National Declassification Center,” did not include any of Jones’ recommendations – or, as Steve Aftergood pointed out, “present any declassification policy proposals.”

There is reason to be hopeful, however, as the Public Interest Declassification Board confirmed its agreement with Jones that the NDC “needs expanded authority and capacity” and stated that it also considers “the prioritization of Presidential records” to be important to its mission to advance government-wide declassification in a January 13, 2017 letter.

nyt“The Last Superpower Summits” at the Wilson Center

The historic summit meetings between Soviet leader Mikhail Gorbachev and two U.S. presidents, Ronald Reagan and George H.W. Bush, built an intensive learning process on both sides that ended the Cold War, but missed numerous other opportunities to make the world safer, according to the new book, The Last Superpower Summits, by the National Security Archive’s Svetlana Savranskaya and Thomas Blanton. The book, and key documents from the publication showing Thatcher’s endorsement of Gorbachev, Bush’s anxiety about Gorbachev’s popularity, and missed opportunities on arms control, regional conflicts, and European integration, were featured this week in the Washington History Seminar at the Woodrow Wilson International Center for Scholars. Learn more, and read some of the documents, here.

Able Archer Presentation and Book Signing at U.S. National Archives

Nate Jones recently presented his research on the Able Archer 83 nuclear war scare at the U.S. National Archives (if you weren’t able to join us in person, live coverage is available here and will also air on C-SPAN). Jones’s research has successfully pried  loose hundreds of pages of declassified government documents from U.S. government agencies, British archives, as well as formerly classified Soviet Politburo and KGB files on the nuclear scare, and he has published them in his new book, “Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War.

Jones will also join the George Washington University’s Elliott School of International Affairs at a Nuclear Policy Talks forum to discuss his new book. It will take place on Wednesday, February 17 at 5:30. RSVP here.

An Archive FOIA Request to the CIA (Now at STRATCOM) Turns 18 This April

18

U.S. Strategic Command recently contacted our Colombia Documentation Project director, Michael Evans, to see if he was still interested in a FOIA request he submitted to the CIA in 1999. Evans learned that his FOIA, through no fault of the STRATCOM officer following up on the FOIA request, had fallen through the referral black hole. Nate Jones has more on this “referral merry-go-round” here.

TBT Pick – Oversight Report from 1976 through 2015

This week’s #TBT pick is chosen with the Trump administration’s recent order to select federal agencies not to communicate with the public “through news releases, official social-media accounts and correspondence” in mind. This week’s #TBT pick is a 2015 posting containing more than 80 oversight and inspector general reports from across the government, dating from 1976 through 2015 on agencies compliance with the FOIA and federal records-keeping practices.

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Condor Verdict In, FOIA Requests to the FCC Just Got More Difficult, and More: FRINFORMSUM 1/19/2017

January 19, 2017
Former Uruguayan Foreign Minister Juan Carlos Blanco (Photo: Flores.org.uy)

Former Uruguayan Foreign Minister Juan Carlos Blanco (Photo: Flores.org.uy)

Operation Condor Verdict – Life Imprisonment

This week a tribunal in Rome sentenced two former heads of state and two ex-chiefs of security forces from Bolivia and Peru, as well as a former Uruguayan foreign minister, to life imprisonment for their  involvement in the coordinated, cross-border system of repression known as “Operation Condor.” The National Security Archive, which provided testimony and dozens of declassified documents as evidence to the tribunal, hailed the ruling.

One declassified Department of State document that the Archive provided to prosecutors stated that Argentina, Brazil, Bolivia, Chile, Paraguay and Uruguay “have established Operation Condor to find and kill terrorists … in their own countries and in Europe.” “… [T]hey are joining forces to eradicate ‘subversion’, a word which increasingly translates into non-violent dissent from the left and center left.” Their definition of subversion, according to the document, was so broad as to include “nearly anyone who opposes government policy.” The document notes that former Foreign Minister Blanco of Uruguay was one of those behind this vision.

In another document introduced in the trial, Peru’s former defense and prime Minister Richter Prada claims that three Argentine fugitives were “legally expelled and delivered to a Bolivian immigration official in accordance with long-standing practice.” The document goes on to say that the fugitives are probably “permanent disappearances.”

Get the whole story, and read the key documents, at the National Security Archive’s website.

FOIA Requests to the FCC Can’t be Submitted by Email or Fax

Michael Ravnitzky recently pointed out that the Federal Communications Commission recently posted a final rule – without providing for public comment – that will negatively impact requesters. Specifically, it no longer allows FOIA requesters to submit FOIA requests via email or fax – and contradicts the spirit of recent amendments to the FOIA. The rule states:

  1. We also amend subsection (d)(1) to remove the use of facsimile or email to file FOIA requests; instead, requesters are directed to submit their requests either via the postal mail or through the Commission’s FOIAonline portal. In section 0.461(d)(2), we clarify that the responsibility to sign FOIA response letters may be delegated to staff of the bureau or office that is the custodian of the records. We amend the provisions of section 0.461(e)(1) concerning date stamping of incoming initial requests to reflect the current procedure as implemented through FOIAonline. In section 0.461(e)(2)(i)(B)(1), we modify the situations in which the processing time may be tolled pending the outcome of a fee matter, explicitly providing that the time for processing a FOIA request will be tolled in cases where the amount of fees authorized is less than the estimated cost for completing the production. This is consistent with existing practice. We update section 0.461(e)(3) to reflect the new methods for FOIA requesters to check on the status of their requests. We also provide for consultation with other agencies regarding records in which other agencies have equities in the Commission’s decision concerning the disposition of a FOIA request for those records.

It’s a sad irony that a department geared towards communications is enacting this regressive rule change, which are decidedly not the kind of updated regulations that senators and representatives envisioned when they required agencies to update their FOIA regulations last year. Issuing the rule change without providing public comment is also likely illegal because the rule directly impacts the public.

CREST Database Now Online

The CIA has published the 13 million pages of declassified documents in its CREST database to its website, thanks in large part to a FOIA suit filed by MuckRock, handled pro bono by Kel McClanahan of National Security Counselors, requesting the database. The agency’s move was likely also prompted by MuckRock user Michael Best, frustrated with the needless hurdles to access, launching a KickStarter campaign to buy the equipment necessary to scan and upload all the documents online.

The documents – which were already declassified – were previously only available onsite at the National Archive’s College Park location in Maryland.

Even though the documents have been available for years for those willing to travel, the CIA long-cited a fear of the Mosaic Principle – the piecing together of documents to discern information the agency wants hidden – as a reason for making researchers review the documents onsite.

The CIA initially told a federal judge in response to MuckRock’s 2014 FOIA lawsuit that it would take 28 years to release the set, but later announced it could release the documents in six years with only a “spot check” for classified information even though the documents are already declassified.

Last October,  the CIA announced it would place CREST online, but didn’t provide a timeline for doing so.

In its posting, the CIA cites provisions of Executive Order 13256, requiring “the declassification of non-exempt historically valuable records 25 years or older.” And while this week’s posting is a big step in the right direction, a good number of the most interesting items have been shielded by a notice, “CREST temporarily unavailable” – a notice that we will be watching to ensure it does not become permanent.

DOJ Doesn’t Want to Give Federal Judge Copy of Torture Report

The Justice Department is arguing that delivering a copy of the Senate Intelligence Committee’s report on the CIA’s torture program to U.S. District Judge Royce Lamberth – per his order – would “unduly interfere … with the larger oversight relationship between the Senate Committee and the CIA.” The DOJ further argues that, “there’s no risk of the 6,963-page Senate Intelligence Committee report disappearing forever because President Barack Obama recently added his classified copy to his presidential archives.” Lamberth’s order was issued in a case concerning Guantánamo captive, Abd al Rahim al Nashiri, who was tortured during his 2002-2006 detention.

The Justice Department also called Lamberth’s order to “preserve and maintain all evidence, documents and information, without limitation, now or ever in the [U.S. government’s] possession, control or custody, relating to the torture, mistreatment, and/or abuse of detainees held in the custody of the Executive Branch” since Sept. 11, 2001 “overreaching.”

Judge Orders DOJ to Preserve Personal Email

U.S. District Court Judge Emmet Sullivan this week ordered the Justice Department to preserve emails in the Gmail account of Assistant Attorney General for Legislative Affairs, Peter Kadzik, before he leaves his post with the change of presidential administrations. The order concerns Gmail emails that may be responsive to FOIA requests filed by Judicial Watch. Politico’s Josh Gerstein notes, “Another federal judge in Washington is considering a Judicial Watch request to preserve emails in private accounts belonging to four top Department of Homeland Security officials, including Secretary Jeh Johnson. In December, yet another federal judge issued an order requiring the top White House science official to preserve all his emails in a private account as litigation over the messages continues.”

nytLast Superpower Summits at the Wilson Center

The National Security Archive’s Svetlana Savranskaya and Tom Blanton will be giving the audience an inside look at the “Last Superpower Summits” next Monday at the Wilson Center. Their latest book, “The Last Superpower Summits: Gorbachev, Reagan, and Bush: Conversations that Ended the Cold War,” publishes declassified accounts (obtained through FOIA requests as well as from the Gorbachev Foundation and the State Archive of the Russian Federation in Moscow, and from the personal donation of Anatoly Chernyaev) that include almost every word that Gorbachev, Reagan, and Bush actually said to each other.

RSVP to this event – co-sponsored by the National History Center of the American Historical Association and the Wilson Center’s History and Public Policy Program – here.

The National Security Archive Nunn-Lugar Conference on C-SPAN 3

American History TV on C-SPAN 3 will be airing three panel discussions from the National Security Archive’s December 2016 Nunn-Lugar conference, which brought together Nunn-Lugar veterans including Russians, Kazakhs, and Americans – and Senators Sam Nunn and Richard Lugar – in the historic Kennedy Caucus Room of the U.S. Senate to commemorate the 25th anniversary of the threat reduction legislation. This coming weekend the panels will air at the following times:

Panel 1 airs Sunday at 6:30pm & 10:30pm ET

Panel 2 airs Saturday at 10:30pm ET and Sunday at 4:30pm ET

Panel 3 airs Sunday at 9pm and 1am Monday ET

On Saturday January 28, starting at 10 am ET, the three panels will run in chronological order back-to-back (until about 1:35pm ET).

Able Archer 83 at the US National Archives

Save your seat today for Nate Jones’s talk on Able Archer 83, the secret history of the NATO exercise that almost triggered nuclear war. The talk takes place next Wednesday (1/25) at noon in the U.S. National Archives and Records Administration’s gorgeous McGowan Theater. RSVP here.

And for those of you lucky enough to be in New York City today – Jones will be signing copies of his new book on the 1983 War Scare at 7PM at Spritzenhaus33 – check it out if you’re in the area!

Advancing Israeli National Cyberspace Capabilities 

A 2011 translation of the Israeli government’s resolution concerning cyberspace capabilities sheds light on, among other things, its establishment of a National Cyber Bureau. The document contains two intriguing addendums; the first highlights the Bureau’s mission, organizational structure, and goals, which include advancing research and development in both cyberspace and supercomputing. The second addendum regulates responsibilities for dealing with the cyber field.

TBT Pick – Operation Desert Storm

storm

This week’s #TBT pick is a 2001 posting on Operation Desert Storm, which primarily focuses on the intelligence, space operations, and Scud-hunting aspects of the war. It also includes a report describing how Desert Storm affected China’s view of future warfare, a document that raises questions as to what lessons other nations have drawn from U.S. military engagements in the Middle East and the Balkans.

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Dos Erres Arrest, FBI Drastically Reduces Number of Pages for “Complex” Request Threshold, and More: FRINFORMSUM: 1/12/2017

January 12, 2017

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Dos Erres Arrest in Maryland

Federal agents arrested 54-year-old Jose Mardoqueo Ortiz Morales in Maryland last week for suspected involvement in the Guatemalan Special Forces brutal murder of more than 250 men, women and children 1982 – known as the Dos Erres massacre, which was part of the Guatemalan military’s “scorched earth campaign” carried out by soldiers notorious for their use of torture and brutal killing tactics. According to witness testimony, and corroborated through U.S. declassified archives, the soldiers murdered nearly the entire town and then threw their victims’ bodies into a well and nearby fields.

The National Security Archive’s Guatemala Documentation Project has been submitting FOIA requests and winning the release of declassified U.S. documents on Dos Erres since 1995. The declassified documents reveal shortly after the Kaibil operation, U.S. officials investigated the massacre and concluded that the Army was the only force capable of such an organized atrocity.

At least five other Kabiles have been convicted for their role in the massacre and were sentenced to more than 6000 years in prison. Kabiles responsible for Dos Erres have been arrested in the United States and Canada.

FBI Changes Rules for Labeling FOIA Requests Complex – Without Notice

A FOIA request submitted to the FBI this time last year was automatically labeled large or complex if the response totaled 2,500 or more pages of documents (the labeling of FOIA requests as “simple” or “complex” places them in different processing queues within an agency’s FOIA shop – ones that often have drastically different estimated completion timelines).

This year a FOIA request to the bureau only has to deal with 51 pages or more to be deemed complex – but you wouldn’t know it to look at the FBI’s website. Michael Best noticed the change in a response the FBI sent him and highlighted it on MuckRock. Best notes that, “Even with this new definition, the FBI says that its average processing time for ‘simple’ cases of 50 pages or less is 181 days – or slightly more than thirteen times the statutory limit. For complex cases, it’s 659 days – nearly fifty times what’s allowed by law.”

FOIA in Transition

The Reporters Committee for the Freedom of the Press released a fact-sheet on Jeff Sessions track-record with issues relating to the news media – including a primer on Sessions’ FOIA history (it’s not good – he placed a hold on bipartisan FOIA reform in 2014 over a 25-year sunset for FOIA’s exemption 5 – the bill ultimately died, and only removed another hold on similar legislation in 2016 after “he learned that some of his requested changes, which he did not detail, had been accepted”). The key takeaway: “Throughout his tenure in the Senate, Sessions repeatedly opposed FOIA reform and other transparency legislation.” When asked by Sen. John Cornyn (R-Texas) during his Senate confirmation hearing for Attorney General if he would support FOIA and the public’s right to know, Sessions agreed; later when asked by Sen. John Kennedy (R-Louisiana) if he would uphold FOIA, Sessions said it was “the law and would see it carried out.”

FOIA-released records show that the Office of Government Ethics (OGE) “lost contact with the Trump-Pence transition” for at least ten days after the election. Josh Gerstein writes the OGE director Walter Shaub urged “the Trump team to advise his office in advance about potential Cabinet picks, so they can be vetted for conflicts of interest prior to their selection being announced publicly. In at least some instances, the Trump team seems to have ‘precleared’ nominees with the ethics office. However, the released records are heavily redacted in some places, making it difficult to follow the online discussions.”

Declassification at the Presidential Libraries

Archive FOIA Project Director Nate Jones recently penned the inaugural posting for a new series on Presidential Library activities, which focuses on how classified presidential library records are released to the public. It is the first contribution of a regular Federalist column by Jones that will discuss the activities and new document releases of the Presidential Libraries. If you have any observations, questions, or hot releases please send them to Jones via Twitter to @NSANate.

New Director Takes Over OGIS; OGIS Issues New Regulations

Eight months after Jim Holzer stepped down, the Office of Government Information Services, OGIS, has a new director in Alina Semo. Semo comes to OGIS from the National Archives’ Office of General Counsel. While at NARA she “helped rewrite the National Archives’ FOIA regulations.” Prior to her tenure at NARA Simo “served as Director of Litigation in the Office of General Counsel” for the FBI. In a good interview with Semo posted on the OGIS blog, Semo notes that she’s eager to lead “a staff who is committed to both FOIA mediation and compliance issues.” The National Security Archive is excited to work with Semo, and has high hopes for her tenure – not least of which being OGIS beginning to issue official advisory opinions on FOIA.

OGIS has recently proposed new FOIA regulations, available for comment now on the Federal Register. The regulations are good but, as they note, focus on only one of OGIS’s three primary functions: dispute resolution services. OGIS’s mediation services are undoubtedly valuable – the National Security Archive contacts OGIS regularly when issues crop up with agencies – but agencies are not required to adhere to any OGIS suggestions that they propose during mediation, and in our experience frequently don’t.

OGIS notes that the regulations will be updated in the future to include provisions on its two other functions: reviewing agency FOIA policies, procedures and compliance; and identifying procedures and methods for improving compliance under the FOIA. The Archive looks forward to those updates, as agencies will likely pay more attention to OGIS’s expertise when it is issued through compliance mechanisms – such as advisory opinions.

ODNI Report on Improving Declassification – Does it Listen to Requester Community Suggestions?

December 2016’s ODNI report, “Improving the Intelligence Community’s Declassification Process and the Community’s Support to the National Declassification Center,” examines how to improve declassification. Focusing primarily on automatic declassification of historically significant documents 25 years or older, Steve Aftergood points out, the report “does not actually present any declassification policy proposals. Instead, in a near-parody of a government report, it calls for establishment of new working groups to write other reports and generate further recommendations.” The report does not answer important questions regarding, among other things, agency “equity” in older records that often require time-consuming, needless re-reviews, or how to handle information that is technically properly classified but would be common sense to release.

The report also did not include any of the suggestions Nate Jones made during the Public Interest Declassification Board’s 2016 public meeting on improving declassification, including further improving the efficiency of the National Declassification Center and expanding its authority; fully realizing the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document; and getting PIDB “into the declassification business.”

Transparency advocates should also keep a close eye on changes to the Executive Order governing classification; Aftergood says, “the report notes that agencies favor numerous revisions to President Obama’s executive order 13526 on classification policy, so that ‘updating the E.O. will be a major undertaking.’”

The FOILIES are Back

The Electronic Frontier Foundation is now accepting nominations for the 2017 Foilie Award – the award that recognizes the worst in government transparency. Anyone can nominate an agency and there is no limit to the number of nominations you can make; the deadline for nominations is January 31.

The Department of Energy won the Archives FOILIES nomination this year.

confusion

Need some inspiration? Last year the National Security Archive nominated one especially bad FOIA response from the Energy Department, in which the Department withheld a 1978 letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the Comprehensive Test Ban Treaty (CTBT) in full pursuant to FOIA’s exemption 5 – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject. Our 2015 nominations are here.

Cyber Risks to Medical Devices  

December 2016’s nonbinding guidance from the Food and Drug Administration on “Postmarket Management of Cybersecurity in Medical Devices” draws attention to the growing vulnerability of networked medical devices. This document is one of 11 new additions that were posted in the National Security Archive’s Cyber Vault on Wednesday, January 11. The guidance “applies to any marketed and distributed medical device including: 1) medical devices that contain software (including firmware) or programmable logic; and 2) software that is a medical device, including mobile medical applications.” Perhaps most significantly, the guidance suggests that manufacturers have a process for assessing the severity of patient harm if cybersecurity vulnerability is exploited, conducting a risk assessment to evaluate if the risk of patient harm is “acceptable” or not, and provides examples of which risks are acceptable and which are not.  

Able Archer in Brooklyn

Nate Jones will be doing a book signing for Able Archer 83: The Secret History at Spritzenhaus33 in Brooklyn on the evening of January 19. Please come join us for the fun and enlightening event if you’re in the area!

afvhollywoodTBT PICK – The Air Force versus Hollywood

This week’s #TBT pick is a 2010 posting from the Archive’s Nuclear Vault on the Air Force’s attempts in the 1950s and 1960s to refute novels and Hollywood films like Fail-Safe and Dr. Strangelove, which raised questions about control over nuclear weapons. To do so, the Air Force produced a series of documentary films, including one on called “SAC Command Post” that “tried to undercut Dr. Strangelove’s image of a psychotic general ordering nuclear strikes against the Soviet Union by showing that nuclear war could not be ‘triggered by unauthorized launch.’” Other films included “Project Headstart,” which depicts SAC’s first airborne alert test, and “Development of the Soviet Ballistic Missile Threat,” which shows the role of Air Force intelligence in the “missile gap” debates in the lead-ip to the 1960 presidential election.

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How Classified Presidential Library Records are Released to the Public

January 9, 2017

libraryThis a version of this article originally appeared in The Federalist, Newsletter of the Society for History in the Federal Government.

The Presidential Records Act of 1978 (PRA) established that the papers of U.S. Presidents legally belong to the American people. According to the law, the Archivist of the United States assumes responsibility for the custody, control, preservation, and accessibility of Presidential records after the President leaves office. Moreover, the Archivist of the United States has the “affirmative duty to make such records available to the public as rapidly and completely as possible.”

This is the first contribution of a regular Federalist column discussing the activities and new document releases of the Presidential Libraries.

Presidential records are made available to the public through each administration’s Presidential Library, which are located across the United States. The libraries themselves are often federal and private amalgamations. For example, while all of the records at the Ronald Reagan Presidential Library are maintained by the National Archives and Records Administration, the Library’s recreation of the Oval Office—and its other museum exhibits— were financed by private funding through the Ronald Reagan Presidential Foundation.

The PRA states that the public can request Presidential records “in accordance” with the Freedom of Information Act (FOIA) beginning five years after the President leaves office. In addition to the exemptions under FOIA in which documents can be withheld (except, wisely, for FOIA’s Exemption Five), the PRA defines six additional exemptions through which Presidential documents can be withheld for 12 years after the President leaves office. After this 12-year limit, both the former President and current President also retain the ability to invoke executive privilege and stop the release of information, though this privilege has rarely been used.

The cover page of the PFIAB report, previously classified as "TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON". It took over 12 years to win this document's release from the George H.W. Bush Library.

The cover page of the PFIAB report, previously classified as “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON”. It took over 12 years to win this document’s release from the George H.W. Bush Presidential Library.

Unfortunately, the release of Presidential records is very rarely “rapid,” especially if the documents were previously classified, as a substantial portion of those sought by researchers are. In most cases, a researcher must file a FOIA request with the Library for the record they are requesting. Then, if the Library determines the record is classified (a process that often takes longer than a year), the requester must file a second Mandatory Review request with the federal agency that claims “equity” of the record. Recently, the National Security Archive received a response to a Presidential record request which took over 12 years to process. A more efficient system would empower the Libraries themselves, or perhaps the National Declassification Center, to more quickly declassify these historic documents.

Additionally, Presidential Libraries are embracing digital platforms to make their records available to the widest possible audience. While all Libraries are moving in this direction, some are better-utilizing digital resources than others. The best I have seen to date is the George H.W. Bush Library which has excellent, expansive, and well organized online collections of the President’s memcons and telcons with foreign officials, National Security Council Meetings, NSC Deputies meetings, and much more. Other libraries would do well to follow the Bush Library’s digital lead.

Future columns will alert readers to Presidential Library document releases and appraise them. If you have any observations, questions, or hot releases, please send them my way via twitter: @nsanate.

DOJ Updates FOIA Regulations, Don’t Call it a Leak, and Much More: FRINFORMSUM 1/5/2017

January 5, 2017

DOJ Updates FOIA Regulations

dojfoiareg

The Justice Department updated its FOIA regulations in accordance with the FOIA Improvement Act of 2016, which was signed into law by President Obama on June 30, 2016, and requires all agencies to update their FOIA regulations within 180 days after the passage of the bill – which means, by my count, all agencies should have updated their FOIA regulations as of December 27, 2016.

The DOJ has published an interim final rule to its regulations, effective February 3, to give requesters 90 days to file FOIA appeals and instructed component agencies to notify requesters of both the “FOIA Public Liaison and the Office of Government Information Services (OGIS) to provide assistance at various stages throughout the request process.”

The DOJ also amended its fee provisions. According to the interim final rule, “these updates do not substantively change the analysis, but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the amended section provides for three overall factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester.” Thanks to Michael Ravnitzky for pointing out this language.

Don’t Call it a Leak

nsa

A FOIA request to the National Security Agency reveals that the agency disclosed classified information to the press “at least” three times in 2013. Steve Aftergood reports that, according to the agency, “the disclosures were not ‘leaks,’ or unauthorized disclosures. They were, instead, authorized disclosures. For their part, the reporters agreed not to disseminate the information further.” Congressional Notification — Authorized Disclosures of Classified Information to Media Personnel specifies that, “Noteworthy among the classified topics disclosed were NSA’s use of metadata to locate terrorists, the techniques we use and the processes we follow to assist in locating hostages, [several words deleted] overseas support to the warfighter and U.S. allies in war zones, and NSA support to overall USG efforts to mitigate cyber threats. The [deleted] personnel executed non-disclosure agreements that covered all classified discussions.”

The NSA cites Executive Order 13526 for the “authorized disclosures,” which Aftergood calls a “generous interpretation” as the EO doesn’t mention the press. Aftergood maintains, however, that, “the report accurately reflects the true instrumental nature of the classification system. That is, the protection of classified information under all circumstances is not a paramount goal. National security secrecy is a tool to be used if it advances the national interest (and is consistent with law and policy) and to be set aside when it does not… The concern, rather, is that the power of selective disclosure of classified material can be easily abused to manage and to manipulate public perceptions.”

Appeal Timeline Run-Around

On October 5, 2016, the United States Patent and Trademark Office (PTO) advised the American Center for Equitable Treatment (the Center) that it had 90 days to respond to a FOIA denial. The Center appealed the denial 42 days later – on November 16 (in its appeal the Center points out that PTO abused FOIA exemption 5 “by unlawfully claiming non-existent attorney-client privileges” and not taking steps to release segregable information). On December 19, the PTO denied the Center’s appeal solely on the grounds that it was untimely, even though it was submitted well within the timeline. The Center is now suing the PTO in federal court for violating the FOIA. Thanks to Josh Gerstein for pointing out this FOIA run-around on Twitter.

Chicago

Last year Chicago paid plaintiffs in public records lawsuits “nearly five times what the city paid in the previous eight years combined” – almost $670,000 spread across 27 FOIA cases, 19 of which involve the Chicago Police Department. Some argue that the increase may be due in part to the public’s increased awareness of what records they are entitled to under the FOIA after video footage emerged of CPD Officer Jason Van Dyke shooting Laquan McDonald 16 times (a judge ordered the city to pay $97,500 for wrongfully withholding the video footage). “Other FOIA lawsuits in which the city paid plaintiffs involved issues such as automatic license plate readers, missed court dates by police officers and the case of Dante Servin, the Chicago police officer who fatally shot Rekia Boyd in 2012 but was acquitted by a Cook County judge who said prosecutors brought the wrong charge.”

Chicago Mayor Rahm Emanuel’s administration is still facing 54 open FOIA lawsuits.

Some DOD Components Still Ignoring 2004 Cyber Directive 

A December 2016 Defense Department Inspector General report on cybersecurity weaknesses notes that, despite a commitment of more than $34 billion over the next five years, the DOD “continues to struggle with ensuring that all aspects of its information security program are adequately implemented.”
It also reports that some DOD components are still not complying with Homeland Security Presidential Directive 12, which mandates a federal standard for secure and reliable forms of identification for federal employees and contractors – and was issued in 2004.

This document is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, January 4.

nytEnd of Soviet Union

On Christmas Day 25 years ago, the last leader of the Soviet Union, Mikhail Gorbachev, stepped down and the hammer-and-sickle flags over the Kremlin were replaced with the red-white-and-blue of the Russian Federation. Triumphalists and conspiracy theorists ever since have attributed this monumental event to U.S. policy makers. But close review of the now-declassified documents of all the conversations between American and Soviet leaders published for the first time in the new book, The Last Superpower Summits (CEU Press), shows that keeping the Union together, and backing Gorbachev personally, remained at the core of U.S. policy all the way through 1991, for fear of a bloody disintegration that would dwarf the slaughter taking place at that time in Yugoslavia. “Yugoslavia with nuclear weapons,” as one official put it.

The National Security Archive’s Svetlana Savranskaya and Tom Blanton penned an op-ed for the New York Times commemorating the event and coinciding publication of their new book. The authors note that, just before delivering his farewell speech as president of the USSR, Gorbachev phoned Bush, who was at Camp David for Christmas with his grandchildren. Gorbachev expressed appreciation for all they had done together and his hope for a future partnership in some new form. The U.S. president felt that he was “caught up in history” at some “enormous turning point.” Gorbachev said a simple “good bye” and shook Bush’s hands virtually; Bush responded, “good bye.”

TBT pick: U.S. Intelligence Assessments of Potential Nuclear Powers, 1977-2001

This week’s #TBT pick is a 2013 posting from our Nuclear Vault on intelligence community assessments of potential nuclear powers, including  a heavily excised version of the Director of Central Intelligence report from December 1979 titled The 22 September 1979 Event, referring to the controversial mystery flash over the South Atlantic, which may have been a nuclear test. The massively excised version of the report includes previously unreleased material. However, most of the withheld information — including analysis of whether Israel, South Africa or both were behind the event — was declassified by the CIA years ago. This discrepancy is a prime example of both the enduring problem of over-classification and of the U.S. government’s great difficulty in making consistently rational declassification decisions.

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25 Years Later, US Evidence on Caloto Massacre Still Under Wraps

December 16, 2016

Today, Colombians mark 25 years of impunity for members of the police implicated in the December 16, 1991, killing of 20 members of the Colombian Nasa-Paez indigenous group in the Caloto, Cauca, massacre. With Colombia now poised to enter a long period of transitional justice, cases like Caloto are emblematic of how Colombian courts have largely failed to bring members of the Colombian security forces to justice even in cases where they have succeeded in putting away their civilian collaborators.

Civilian judicial proceedings against two Cali police officials long suspected of helping narcotraffickers carry out the massacre only began in February 2015, more than 23 years after the killings and over 15 years after a military tribunal absolved the officers of any responsibility in February 1999. This is despite the fact that Colombian President Ernesto Samper formally recognized the state’s responsibility for the killings in 1995. The officers, Gen. Fabio Alejandro Castañeda Mateus and Maj. Jorge Enrique Durán Arguelles, were ordered to be re-tried in civilian court after Colombia’s Supreme Court of Justice found that the military prosecution “had as its sole purpose to render ineffective the accusation against Castañeda and Durán and to facilitate the cessation of proceedings for such grave violations of human rights.”

The details surrounding the case are both chilling and emblematic of wider problems in Colombia. A March 1993 cable from the embassy of US Ambassador Morris Busby considered the Caloto massacre in light of the impact that the surge of narco-paramilitary influence in the region had on traditional conflicts over land and landownership.

caloto-busby

US Embassy contacts “cited Caloto as their worst fears come true of what could result from a mixing of Amapola and Cauca’s traditional land conflicts.”

More than a year earlier, another US Embassy cable had reported that one of the owners of the “El Nilo” ranch where the massacre occurred, Luis Alberto Bernal Seijas, was “in DEA’s files,” meaning the US Drug Enforcement Administration. The Embassy said that Colombian authorities had issued arrest warrants for a lawyer and two employees of the Cali-based real estate firm owned by Bernal Seijas and his brother Jose Antonio, Sociedad Inversiones Piedras Blancas.

Luis Alberto Bernal Seijas was later convicted as an intellectual author of the crime in 1996, but spent more than five years evading justice before he was arrested for an immigration violation in Panama in 2001.

US intelligence records on his arrest depict him as a longtime drug trafficker with criminal associations going back as far as the Medellin drug cartel. The US Defense Intelligence Agency (DIA), for example, identified Bernal as a “Panama-based Colombian drug trafficker,” a “former pilot for the infamous drug trafficker Gonzalo Rodriguez-Gacha” and “the individual in charge of finances and logistics in Panama for the Colombian United Self-Defense Groups (AUC),” which was designated a Foreign Terrorist Orgnization by the US State Department later that year. The DIA added that Bernal’s Panama-based aviation company, which owned six planes, “was probably involved in the transhipment of large quantities of cocaine from Colombia through Panama.”

The declassified paragraphs of a subsequent Central Intelligence Agency (CIA) report, titled, “Narcotics: [deleted] Information on Individuals, Properties, and Compaines Associated with Expelled Colombian Narcotics Trafficker and United Self-Defense Forces of Colombia Collaborator Luis Bernal Seijas,” echo the earlier DIA analysis. Bernal Seijas had used the alias “Nicolas Bedoya Herrera” while on the run in Panama and had purchased “a sizable amount of property” and ran “several businesses” there. One of these was a “general aviation company [redacted] believed to have been used by Bernal for the transport of arms and drugs to and from Colombia.”

Twenty-five years later, nearly three entire pages of the a six-page CIA report on the intellectual author of the Caloto massacre remain classified. What might these redacted pages tell us about the police officials now being re-tried in civilian court? What will those proceedings tell us about collusion between narcotraffickers and government security forces in a deadly campaign against indigenous groups with territorial claims? Most importantly, will Colombia finally convict a member of the security forces in the 25-year-old Caloto massacre? Time will tell.