HRC Political Appointees Meddled in Politically Sensitive DOS FOIA Releases, Archive and Coalition of Historical Associations Win Remaining Grand Jury Testimony from Rosenberg Spy Trial, and Much More: FRINFORMSUM 5/21/2015
Hillary Clinton’s political aides while she was serving as the Secretary of State allegedly scrutinized politically sensitive documents requested under the FOIA. The Wall Street Journal reports that her chief of staff, Cheryl Mills, “insisted on reviewing all Keystone-related documents being prepared for release, and flagged as problematic a few that the department’s records-law specialists felt obligated to release.” Mills reportedly informed a FOIA specialist that if records were released that Mills wanted withheld, “Mrs. Clinton’s office wouldn’t comply with any future document requests on any topic.” The Journal further reports that the State Department was advised by a FOIA expert to shield Keystone pipeline documents by withholding them under the b(5) “withhold it because you want to” exemption. Troublingly, the report also noted “there is no pressure on bureaus or embassies to respond to document searches in a timely fashion; that FOIA specialists hold little stature; and that there are no consequences for people who don’t produce documents requested.”
Jason Leopold recently reported that the government argued — and lost — that it could not make former Secretary of State Hillary Clinton’s emails public until January 2016. The State Department filed court papers this week in connection with a VICE News FOIA lawsuit for Clinton’s emails maintaining it needed so much time because, “The collection is … voluminous and, due to the breadth of topics, the nature of the communications, and the interests of several agencies, presents several challenges.” The judge, however, “ordered the agency to being releasing the documents on a rolling basis.” The State Department’s focus on the HRC emails is likely bad news for FOIA requesters. Last week The Washington Post’s Al Kamen reported on the State Department’s use of “the Hillary Dodge” to delay processing pre-existing FOIA requests, highlighting a 2001 Archive request for Henry Kissinger’s 700-still-secret telephone conversations (telcons) that the State Department petitioned the US District Court that it needed more processing time, citing a huge “surge” in FOIA lawsuits and processing delays related to Hillary Clinton’s emails – all of which are unclassified.
In a huge win, this week the National Security Archive and a coalition of leading US historical associations won a petition for the release of key remaining grand jury records from the prosecution of accused spies Julius and Ethel Rosenberg. The Rosenbergs were indicted in 1951 in what was then billed as the “trial of the century,” convicted of espionage for the Soviet Union, and executed in 1953. In this week’s ruling, which secured the release of David Greenglass’ likely perjured testimony, US District Court Judge Alvin K. Hellerstein dismissed the Government’s argument that the release would rekindle antipathy towards the Greenglass family, and found, “The requested records are critical pieces of an important moment in our nation’s history. The time for the public to guess what they contain should end.”
The Washington Post’s Al Kamen recently highlighted the problem of incorporating control markings into email templates after obtaining an email from Janet Webb, deputy director of Enforcement Operations at the Department of Justice, on possible commuter traffic. The email warned DOJ employees that a demonstration scheduled in downtown DC might affect commutes home, and to “plan accordingly.” The bottom of the email is stamped “ATTORNEY-CLIENT PRIVILEGED COMMUNICATION,” “ATTORNEY WORK PRODUCT,” and “SENSITIVE/PRIVILEGED COMMUNICATION.” National Security Archive Director Tom Blanton told Kamen, “These automatic labels slow down all the processes, because they send a flag to the FOIA people not to release,” a sentiment reiterated by Secrecy News’ Steven Aftergood.
The New York Times reported that the US military used the classification system to hide which dangerous chemicals harmed soldiers in Iraq, and denied FOIA requests concerning information on the chemicals for a decade. The Army only recently released the 2003 Camp Taji Incident report, written by the multinational Iraq Survey Group, which found that the chemical soldiers came in contact with was a potentially fatal “carcinogen and poisonous chemical.” The Archive’s Director Tom Blanton told the Times that, in addition to the secrecy trumping common sense, that “the outrage here is extraordinary.” Blanton noted, “Soldiers exposed to something really dangerous cannot find out what it was because ‘Sorry it’s classified’?” he said. “It’s creepy and it’s crazy.”
A coalition of 140 technology companies, civil society groups, and security experts are petitioning the White House to refuse any government proposal that would grant law enforcement a “back door” into encrypted phone data. The FBI has argued in favor of companies building a US-government-only back door into devices that are increasingly encrypted. Former Bush administration senior policy official at the Department of Homeland Security, Paul Rosenzweig, said, “If I actually thought there was a way to build a U.S.-government-only backdoor, then I might be persuaded. But that’s just not reality.” Rep. Ted Lieu (D-Calif.) called the FBI’s suggestion “technologically stupid,” and George W. Bush’s cybersecurity adviser Richard Clarke said FBI director James Comey “is the best FBI director I’ve ever seen,” but “he’s wrong on this [issue].”
The liberal Center for American Progress (CAP) released a 182-page report this week that found the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) should be merged with the FBI. CAP’s findings echo long-standing Republican proposals. The CAP report found that ATF “is plagued by inadequate management, insufficient resources, burdensome restrictions and a lack of coordination,” and argues that the gun lobby, led by the National Riffle Association, has fought “to keep it a weak stand-alone agency. It has done so, according to the report, by lobbying Congress to keep ATF ‘underresourced’ and to attach provisions to appropriations bills, limiting its ability to do its job.” The Department of Justice, which oversees both the ATF and the FBI, supports maintaining the ATF as an independent agency.
The General Counsel for the Office of the Director of National Intelligence, Bob Litt, recently weighed in on a debate surrounding the classified annexes that accompany intelligence appropriations bills, none of which have ever been made public and that Seven Aftergood characterized as “secret law.” Aftergood initially noted that the annexes “legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.” He notes, however, that the secret intelligence legislation is but “a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.” Litt responded by saying, in short, that, “The schedule of authorized amounts that is contained within the classified annex does have the force of law, but the rest of the classified annex does not.” Aftergood accepted the correction, and applauded Litt for participating in the public dialogue.
The Office of the Director of National Intelligence declassified 103 documents recovered from the Abbottabad compound in Pakistan where Osama bin Laden was killed in 2011 this week. The released documents – which are a small fraction of those recovered – include bin Laden’s reading material, which the ODNI has dubbed “Bin Laden’s Bookshelf,” and an application to join al Qaeda that includes space for the applicant to indicate if they wish to participate in a suicide mission.
The Army’s Delta Force “came away with a treasure trove of materials” after this weekend’s raid to kill the Islamic State’s finance chief in Syria. A spokesperson said the team “left with laptops, phones, documents and, likely, hard drives, DVDs, CDs and SIM cards,” and an initial assessment of the records’ contents is currently underway.
Poland is paying a quarter of a million dollars in reparations to a Palestinian man and a Saudi national, who were charged with orchestrating the 2000 USS Cole bombing and were held at a CIA “black site” prison in the eastern European country where they were tortured by CIA interrogators. Last July the European Court of Human Rights ruled Poland had violated the men’s rights, and required Poland “seek diplomatic guarantees from the United States that the suspects not face the death penalty, a request that Poland sent several weeks ago,” in addition to the reparations. The case has caused tension in part because no US officials have been prosecuted in connection with the CIA’s torture program. The plaintiffs are currently held at Guantanamo.
The Special Inspector General for Afghanistan Reconstruction (SIGAR) announced that Afghanistan’s future “is threatened by the [US] military’s chronically poor intelligence on Afghan security forces and an anemic central government in Kabul that is unable to operate on its own” during a recent speech in Washington. Part of the blame for the US’ poor intelligence on Afghan forces lies with the measurement system the US uses to monitor training successes, which has changed four times in the last decade, making meaningful comparisons virtually impossible. SIGAR also released an audit this Wednesday calling for disciplinary measures against three high-ranking Army officials in relation to waste and mismanagement at Camp Leatherneck.
This week’s #tbt document pick is chosen with the Archive’s recent victory in obtaining David Greenglass’ grand jury testimony in mind, and are the grand jury testimonies of Ethel and Julius Rosenberg, which the Archive and historical associations won the release of in 2008. The posting also contains the testimonies of 41 of the 45 witnesses who appeared before the grand jury between August 1950 and March 1951.
NSA Declassifies Friedman Collection, FOIA Request Shows FTC’s Efforts to Kill FOIA Reform, CIA Should Declassify “Anatomy of a Lead” in Wake of Sy Hersh Article, and Much More: FRINFORMSUM 5/14/2015
The National Security Agency (NSA) recently declassified and released over 50,000 pages (7,000 records) concerning cryptographer William Friedman, arguably the founding father of the intelligence agency and the US’ scientific approach to code-breaking. Prior to his tenure at the NSA, Friedman ran the Army’s Signals Intelligence Service, which broke Japan’s “Purple” cipher intended to protect the most sensitive diplomatic messages, and built the SIGABA encryption machine – “which, unlike the German Enigma or the Japanese Purple systems, protected Allied communications through World War II and beyond without ever having been cracked…at least not that we know of.” Dr. Dave Sherman, the NSA’s Associate Director for Policy and Records, recently published an excellent article on the Public Interest Declassification Board’s blog about the declassification of the Friedman collection, noting that 85% of the collection was declassified in full (he does not, however, hint what information is still too sensitive for release). Sherman argues that despite the time consuming nature of the declassification – declassifying the Friedman collection two years, largely thanks to the page-level review of each document – “declassification projects which are the most challenging to undertake are also likely to be the most historically relevant. They should be at the top of our to-do list, and we also need to find new ways to do them quickly and comprehensively.”
New FOIA bills in both the House and the Senate stand a good chance of becoming law – in large part because both contain common-sense, cost-saving improvements that will help ordinary requesters by, among other things, reining in the oft-abused b(5) exemption, fixing fee issues, and strengthening the FOIA ombuds office. The bills were reintroduced this session after lobbying by pro-secrecy government and private interests prevailed over unanimously approved, bipartisan legislation in the 11th hour of the last Congressional session. Former Senator Jay Rockefeller (D-W. Va.), for example, placed a last-minute hold on the Senate bill last December over misplaced concerns regarding a central provision in the bill that would have required agencies to release information unless “foreseeable harm” would result. (FreedomInfo.org’s Toby McIntosh has an excellent, in-depth post mortem of the bill here.) The hold was ultimately lifted, only for legislation to die in the House.
In a bit of poetic justice, MuckRock’s Shawn Musgrave filed a FOIA request with the Federal Trade Commission (FTC) for communications the agency had with Sen. Rockefeller concerning the Senate bill. Musgrave recently received 25 pages of documents in response to his request, which quotes a member of Rockefeller’s staff telling an FTC employee that, because the bill is “widely supported by a broad coalition of good govt groups,” he was inclined to let the FTC explain why it had requested the Senator place a hold, rather than the Senator himself. The same FTC employee also acknowledged that the agency viewed itself as a “small fry” in the FOIA bill debate…but that didn’t stop it from trying to kill it for everyone anyway.
New York Times reporter Carlotta Gall recently weighed in on Sy Hersh’s latest expose on the 2011 raid to kill Osama bin Laden. Hersh’s article argues, among other things, that: bin Laden had been a Pakistani prisoner in the Abbottabad compound since 2006; the US learned about bin Laden’s whereabouts from a Pakistani intelligence officer who wanted to claim the $25 million reward – not bin Laden’s courier as the US government previously claimed; and that the US did not retrieve a “treasure trove” of documents from the compound. While the White House and the CIA called Hersh’s story “utter nonsense,” Gall says that her research concerning a Pakistani official betraying bin Laden’s location “tracks with Hersh’s.” While Gall is less moved by Hersh’s argument that no treasure trove of documents was found at Abbottabad, she says it underscores “the need for more openness from the Obama administration about what was found there.”
A good start for more openness would be for the CIA to declassify a September 2010 memo entitled “Anatomy of a Lead,” chronicling how the Agency identified Abu Ahmed al-Kuwaiti, bin Laden’s courier who allegedly led the US to him. The Archive submitted a mandatory declassification review (MDR) request for the widely circulated (and reported) memo concerning bin Laden’s capture, but the CIA denied our request citing its operational files exemption. The decision was unfortunately upheld by the Interagency Security Classification Appeals Panel, which reiterated the argument that if such records existed, they would be contained in the CIA’s operational files, and exempt from search and review. This document is, upon information and belief, included in the 6 million pages reviewed to produce the Senate Torture Report, and pursuant to 50 USC 431(c)(3), which specifically provides that “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity” should continue to be subject to search and review.
Secrecy News’ Steven Aftergood reported this week on the executive branch’s upcoming system of “controlled unclassified information” (CUI) for “safeguarding unclassified information that is to be withheld from public disclosure.” The standard, government-wide system will replace agencies’ ad hoc approaches, and “limits the prevailing autonomy of individual agencies and obliges them to conform to a consistent government-wide standard.” Under the new guidelines agencies may not control any information that is not part of the CUI program, nor can they independently determine what qualifies as CUI. One complication with the program, however, is that “removing CUI controls does not equate to or imply public release.”
In 2012 the FBI demanded that the University of South Florida (USF) “immediately return copies of e-mails from one of its agents” concerning disgraced associate professor Dajin Peng. The agent, Dianne Mercurio, had been in contact with Peng since 2009, encouraging him to spy on connections Peng had high within Chinese intelligence circles, and leveraged Peng’s tenuous position at USF, where he was being investigated for falsifying expense accounts, making inappropriate advances towards female colleagues, and keeping explicit material on a USF computer, to compel him to keep spying. Fortunately, USF followed Florida’s open government law and released Mercurio’s e-mails in response to a request from Bloomberg News.
The Director of the Department of Justice’s Office of Information Policy (OIP), Melanie Pustay, recently testified before a Senate Judiciary Committee hearing, that when “processing requests for disclosure, the government continued to maintain a high release rate of over 91%, marking the sixth straight year in which the government’s release rate was above 90%. This means that records were released, either in full or in part, in response to 91% of requests where the government was in a position to make a disclosure determination.” The 90% release rate is also touted in OIP’s summary of annual FOIA reports for FY2014, but it is a misleading figure. As Archive Director Tom Blanton noted in his own Senate testimony, to calculate that figure the DOJ includes only final processed requests, and the DOJ statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming “no records,” “fee-related reasons,” and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%. And what about the records that the DOJ counts as successfully released, either in full or in part? The FBI’s recently released – and nearly entirely redacted – 5,000 pages of documents in response to documents on its use of StingRay cell phone tracking technology would be another trumped up – and unwarranted – success statistic.
Sen. Barbara Boxer blasted the secrecy surrounding the Trans-Pacific Partnership (TPP) negotiations on the Senate floor this week, recounting her efforts to read the text for the multinational trade agreement that is inexplicably classified (US chief TPP negotiator Barbara Weisel said in 2012 the text “cannot be released to the public” because it is constantly evolving, a claim upheld by then-US Trade Representative Ron Kirk). Boxer said a member of Congress can only take staffers with security clearance to view the text, and, were the Congressperson to take notes, the notes would be taken away from them and placed in a file before they left. Affiliates of the 28 US government-appointed trade advisory committees providing advice to the US negotiators – like AT&T, General Electric, Apple, Dow Chemical, Nike, Walmart and the American Petroleum Institute – can, however, view the TPP text.
The Washington Post’s Al Kamen recently reported on a new tactic the State Department is using to delay processing FOIA requests– the “Hillary Dodge.” Kamen highlighted a 2001 Archive request for Henry Kissinger’s 700-still-secret telephone conversations (telcons) for his column “In the Loop,” noting the State Department petitioned for an additional six months to process our 13-year-old FOIA request in US District Court last week, citing a huge “surge” in FOIA lawsuits in and processing delays related to the processing of Hillary Clinton’s emails. The emails are all unclassified, making “The Hillary Dodge” a particularly feeble one.
Declassified records obtained by the National Security Archive and highlighted in a new report for The Intercept by former Archive staffer Jesse Franzblau and Cora Currier shed light on how the US has perceived and responded to allegations of serious human rights abuses committed by US-funded security forces in Mexico. Read the full story – and the documents behind it – here.
This week’s #tbt docunment pick is chosen with the 60th Anniversary of the Warsaw Pact in mind, and is a May 1961 speech by Soviet Defense Minister Marshal Malinovskii on the need for Warsaw Pact Offensive Operations.
Senate Judiciary Seeks NS Archive Testimony on Efforts to Improve Open Government, DOJ to Review “StingRay” Technology, and Much More: FRINFORMSUM 5/7/2015
The Senate Judiciary Committee asked the National Security Archive’s Executive Director Tom Blanton to deliver testimony for this week’s hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government,” which can be viewed here. Blanton – as always – delivered powerful testimony, emphasizing the need for a sunset to the B5 “withhold it because you want to” exemption, for more proactive disclosure online – because in this era, “the presumption of openness means a presumption of posting” –, and called for a SWAT team to process former Secretary of State Hillary Clinton’s emails, noting that since none of them are classified, the public should be able to see them without considerable delay.
Blanton also carried out the yearly tradition of correcting the overly-rosy FOIA numbers presented by the Department of Justice’s Office of Information Policy, and –this year– also misleadingly cited by White House spokesperson Josh Earnest. In his testimony Blanton notes that while “The White House proudly repeats Justice Department talking points claiming a 91% release rate under FOIA… the AP headline reads, “US sets new record for denying, censoring government files.” Who is right? The AP is.” Blanton notes the DOJ numbers ignore 9 of the 11 reasons FOIA requests are denied, including improper “no records responses” and administrative closures, and points out that the actual release rate – of processed requests – is closer to 50 or 60%. Other highlights from the hearing included excellent testimony by the Associated Press’ General Counsel Karen Kaiser, Senator Al Franken (D-Minn) noting “we have yet to truly modernize FOIA,” and Senator Cornyn arguing for a presumption of openness.
The Archive joined colleagues, including OpenTheGovernment.org, the Federation of American Scientists, and DOCEX, in submitting comments to the CIA suggesting which CIA operational files, which, due to the CIA Information Act of 1984, are exempt from the FOIA, should be removed from their exempted status. Our number one suggestion? That the CIA stop calling histories “operational” and grant the public the ability to request search and review of the Clandestine Service History Program files.
The CIA, however, hides more than just histories in its operational records system. It routinely conceals historically important documents as well, including much of the official record on Osama bin Laden. Given how difficult it is to obtain official records on bin Laden (in large part because the DOD transferred many of its bin Laden records to the CIA in 2013) the Archive gladly touted the State Department’s recent release of three fascinating memos on tips concerning bin Laden’s whereabouts in the immediate aftermath of 9/11. One document, a Secret Department of State cable dated September 20, 2001, from the US Embassy in Caracas, Venezuela, subject: “Reported Information Related to NY and WDC Terrorist Attacks,” contains a tip that is likely correct – that bin Laden was in the Panjab-Kabul region of Afghanistan. The release of these documents provides a fascinating glimpse into the multi-threaded, many-dead-ended search for bin Laden, but they are a drop in the bucket compared to the vast swaths of information that remains obfuscated by the CIA’s damaging operational files exemption.
The Department of Justice is beginning a review of the agency’s use of “StingRay” cell phone tracking technology after reports – and subsequent lawsuits – that the US Marshals – with the aid of the CIA – were harvesting data from American cell phones from StingRays, small planes “mounted with controversial cell-phone tracking systems.” The DOJ, which is the parent agency for the Marshals, the FBI, the Drug Enforcement Administration (DEA), and a host of other law enforcement agencies, announced that it “is in the process of examining its policies to ensure they reflect the department’s continuing commitment to conducting its vital missions while according appropriate respect for privacy and civil liberties.”
A federal appeals court in Atlanta ruled this week in a 9-2 vote that the government doesn’t need a warrant to obtain historic cell phone location, reversing an earlier ruling. “The court agreed with a long-held view that an American has no reasonable expectation of privacy in certain types of information voluntarily turned over to third parties such as phone companies and banks.” Several of the concurring judges, however, suggested it might be time for the Supreme Court to re-evaluate the third party doctrine.
The National Security Agency (NSA) can now “automatically recognize the content within phone calls by creating rough transcripts and phonetic representations that can be easily searched and stored,” according to documents leaked by former NSA contractor Edward Snowden and recently published by the Intercept. Dubbed “Google for Voice,” the computer programs are “designed to analyze and ‘extract’ the content of voice conversations, and even use sophisticated algorithms to flag conversations of interest” – and were developed with no public oversight.
Steven Aftergood of Secrecy News reported this week on a growing body of secret law – specifically the classified annexes that have accompanied intelligence appropriations bills since FY1978, none of which has ever been made public. Politico reported just last month that “Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage” the shift of the drone program from the CIA to the DOD. Aftergood notes that the annexes “legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.” He notes, however, that the secret intelligence legislation is but “a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.”
The DEA stonewalled Senators’ questions during a hearing this week, refusing to explain how a California university student was left in a holding cell without food or water for five days in 2012. The student, Daniel Chong, almost died of dehydration, and was awarded a $4.1 million settlement from the DOJ. A recently released DOJ inspector general report casts “doubt on DEA agents’ claims that they didn’t hear Chong’s repeated shouts and bangs in a bid to get someone’s attention.” While DEA Deputy Assistant Administrator of Drug Diversion Joseph Rannazzisi told Senator Chuck Grassley (R-Ia) that the incident was “regrettable,” he refused to confirm that the agency would respond to a 19-page letter Grassley sent last year concerning the incident. The DEA also ignored two letters from Senator Dianne Feinstein’s office concerning Chong’s treatment. The Los Angeles Times recently reported that the harshest punishment any of the DEA agents involved received was a seven-day suspension.
Leaked versions of heavily redacted Navy FOIA responses on conditions at Camp Lemonnier in Djibouti, the base for US pilots flying over Yemen and Somalia that is entirely dependent on civilian air-traffic controllers, reveals the base is chaotic, dangerous, and “mind-boggling.” The leaked documents – obtained by the Washington Post “from a source upset about the military’s attempt to conceal the problems” – reveal controllers habitually nap while on duty, chew qat – a traditional Yemeni stimulant banned in the US –, and intimidate those who attempt to regulate their behavior, even threatening a Navy officers with a pipe.
The National Security Archive recently posted key documents on Operation Condor that were presented by its Southern Cone analyst, Carlos Osorio, at a historic trial in Buenos Aires of former military officers earlier this year. During 10 hours on the witness stand Osorio introduced one hundred documents into evidence for the court proceedings. His testimony was profiled on May 3 in a major feature article published in the Buenos Aires daily, Pagina 12.
This week’s #tbt pick is chosen with Osorio’s testimony in mind, and is a selection of declassified documents that suggest the September 1976 car-bombing in Washington, D.C., which was planted by agents of the Chilean secret police under the car of General Pinochet’s leading critic in the United States, Orlando Letelier, and killed him and his American colleague Ronni Moffitt – might have been prevented.
Archive Director Tom Blanton’s Must-Read Testimony on the Administration’s Efforts to Improve Open Government
This morning the Archive’s Executive Director, Tom Blanton, is testifying before the Senate Judiciary Committee for its hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government,” which can be viewed here. Below is a copy of Blanton’s “must read” testimony.
Statement of Thomas Blanton
Director, National Security Archive, George Washington University
Before the United States Senate Committee on the Judiciary
Hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government”
Dirksen Senate Office Building, Room 226, Washington D.C.
Wednesday, May 6, 2015
Mr. Chairman, distinguished members of the Committee: thank you very much for your invitation to testify today about open government and the Freedom of Information Act. My name is Tom Blanton and I am the director of the independent non-governmental National Security Archive, based at the George Washington University.
At the Archive, we are veterans of more than 50,000 Freedom of Information requests that have changed the way history is written and even how policy is decided. Our White House e-mail lawsuits against every President from Reagan to Obama saved hundreds of millions of messages, and set a standard for digital preservation that the rest of the government has never yet achieved, as we know from the State Department. The Archive has won prizes and recognition ranging from the James Madison Award that Senator Cornyn deservedly received this year from the American Library Association – joining Senator Leahy in excellent company – to the Emmy Award for news and documentary research, to the George Polk Award for “piercing self-serving veils of government secrecy.”
This year we completed our 14th government-wide audit of agency FOIA performance, with more recommendations like the ones this Committee included in the landmark Cornyn-Leahy amendments in 2007 and again last year with the excellent FOIA reform bill this Committee passed unanimously through the Senate. My statement today addresses each of these areas of open government performance, and the lack thereof.
But first, I want to say that it is an honor to be here today on this panel with the general counsel of the Associated Press. Not only was the AP one of the founders of the now-ten-year-old Sunshine Week, the AP consistently ranks among the most systematic and effective users of the Freedom of Information Act. I am especially grateful to the AP for taking on the number-crunching task of making sense of agency annual reports on FOIA, and providing a common-sense analysis that parts ways significantly from the official spin. The White House proudly repeats Justice Department talking points claiming a 91% release rate under FOIA. But the AP headline reads, “US sets new record for denying, censoring government files.” Who is right? The AP is.
The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming “no records,” “fee-related reasons,” and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.
In the National Security Archive’s experience, most agency claims of “no records” are actually an agency error, deliberate or inadvertent. I say deliberate because the FBI, for example, for years kept a single index to search when a FOIA request came in, even though that index listed only a fraction of the FBI’s records. But the FBI could say with a straight face, we conducted a full search of our central index, and found no records, and the requesters would go away. Only when we called them on their abysmally high rate (65%!) of no-records responses (most agencies were averaging closer to 10%), did the FBI change their process.
I say inadvertent because FOIA officers may not know where the documents are, and most often the requester doesn’t either. This is why dialogue between the agency and the requester is vital, why a negotiating process where the agency explains its records and the requester in return narrows her request, makes the most sense. This is why the Office of Government Information Services is so important, to mediate that dialogue, to bring institutional memory to bear, and to report independently to Congress about what is going on. This is why the original Freedom of Information Act back in 1966 started with the requirement that agencies publish their rules, their manuals, their organization descriptions, their policies, and their released records for inspection and copying. This kind of pro-active disclosure is essential, and our most recent audit showed “most agencies are falling short on mandate for online records.”
I’ll come back to that point, but let me first give you some of the big picture, since you are examining this administration’s overall performance on open government. The tenth anniversary of Sunshine Week this spring prompted some tough questions: are we doing better than when we started that Week 10 years ago, or worse, or holding our own? As with so many multiple-choice questions, the answer is probably “all of the above,” but I would also argue, mostly better – partly cloudy. My daddy of course once shoveled four inches of partly cloudy off the front steps, so we have a ways to go.
In February 2014 a FOIA lawsuit brought against the Department of Defense by Judicial Watch spurred the declassification of documents that showed U.S. Special Operations Commander, Admiral William McRaven, ordered the immediate destruction of any photos of the death of Osama bin Laden. The documents showed that on May 13, 2011, McRaven told subordinates, only hours after Judicial Watch issued a press release stating they would be filing suit for the records, that any photos should have already been turned over to the CIA –presumably so they could be placed in operational files out of reach of the FOIA (more on this terrible exemption below) – and if anyone still had access to photos, to “destroy them immediately or get them to the [redacted].”
This, sadly, is symptomatic of how difficult it is to get documents – any documents – on Osama bin Laden declassified by the US government. This is also why the Archive is happy to publicize a trio of documents our office recently received from the Department of State (albeit after nearly a decade wait and all were withheld in part) on bin Laden’s location from September 1, 2001, through October 15, 2001.
The first document is a Secret Department of State cable dated September 20, 2001, from the US Embassy in Caracas, Venezuela, subject: “Reported Information Related to NY and WDC Terrorist Attacks.” The memo contains three tips on Osama bin Laden’s location, the first of which was probably correct. The tip was delivered via a two-page fax that an Israeli supporter sent the embassy; the first page a cover sheet, the second a map of Afghanistan downloaded from [redacted], accompanied by a hand-written note in Spanish, and a drawing of a clay pot with the Star of David on it.
Translated, the note reads:
Location of Osama bin Laden, mountains of Panjab in underground shelters. He has contacts in the city of Panjab and Kabul. He has 15 personal bodyguards. The paths and roads (to his location) contain anti-personnel mines. In consequence, the cost of a ground operation would be high in respect to assault troops and since this would warn him to flee apparently with two airplanes and a runway. It is advisable to use cruise missiles without nuclear warheads.”
[Redacted] is not real, nor is this report for money. It is for the gratitude to the American people for helping support Israel and is a way of helping against this crazy terrorist and neutralizing him. My sincerest condolences for what happened. May Jehova bless and guide you. Shalom [redacted].
Credible confirmation of bin Laden’s presence in Afghanistan in the Panjab-Kabul area during and after 9/11 is provided, among other things, by testimony from one of bin Laden’s son-in-laws, Abu Ghaith. During Abu Ghaith’s 2014 terrorism trial he swore that bin Laden was in Afghanistan in September 2001, and that he watched video of the 9/11 attacks in Kabul. Another account comes from Pakistani orthopedic surgeon, Amer Aziz, who has said he treated bin Laden in November 2001 near Jalalabad, Afghanistan. And of course, intelligence that Osama bin Laden was hiding in the mountains of Tora Bora, Afghanistan in late 2001 led to the infamous Battle of Tora Bora in December of 2001, from which bin Laden escaped. The 9/11 Commission Report makes no mention of his whereabouts at this time.
A second declassified document concerning bin Laden’s location is a Secret September 21, 2001, cable from the US Embassy in Moscow detailing a tip from [redacted]. [Redacted] claims to have visited the US Embassy there two or three times in the preceding six months to obtain a non-immigrant Visa, and also professed to know from telephone conversations with family members in Tehran, Iran that bin Laden and 100-200 of his supporters were located in Sarakhs, Iran, near the Iranian border with Afghanistan. The tipster also reported that bin Laden and his camp had recently crossed the border into Iran to avoid an expected US military attack against their camps in Afghanistan.
A third Secret cable, dated September 28, 2001, and also sent from the US Embassy in Moscow, details a tipster who, upon being paid for his information, would provide information on bin Laden’s specific location. The tipster, who claimed to be a trader along the Iranian-Armenian border, did say – gratis – that bin Laden had shaved his beard, had four bunkers in Iran that were 120 meters deep, as well as bunkers in Saudi Arabia and Afghanistan, and that since bin Laden was friends with Yasser Arafat, he could even be hiding in Israel. The informant also mentioned that he had known the September 11 attacks would take place approximately one month in advance, and had tried to contact the US Embassy in Armenia, but had only been laughed at by the Embassy personnel he spoke with.
These three documents provide a fascinating glimpse into the multi-threaded, many-dead-ended search for bin Laden, and also underscore the frustrating reality that documents concerning Osama bin Laden have been notoriously difficult to get released.
The US government has only released documentary evidence recovered from the 2011 raid on bin Laden’s Abbottabad compound, which recovered 6,000 records, twice: a 2012 release by West Point’s Combating Terrorism Center (CTC) of 17 documents totaling 175 pages; and a 2015 release of 148 pages entered as evidence in a terrorism trial.
Records originating from the US government itself on the mission to kill the al-Qaeda leader, which are even scanter, include: National Geospatial Agency satellite images of the Abbottabad compound pre- and post-construction and the DOD’s official conceptual illustration of its floor plan; six official White House, Department of Defense, and Department of State briefings describing the contradictory initial accounts of the raid, including the oft-repeated but incorrect statement that bin Laden had used one of his wives as a human shield; emails and memos, released in response to a Judicial Watch FOIA request, detailing Zero Dark Thirty director Kathryn Bigelow’s and screenwriter Mark Boal’s extensive access to CIA Deputy Director Mike Morell, DOD Under Secretary of Defense for Intelligence Michael Vickers, and five CIA and military operatives involved in the raid, whose identities remain concealed from the public; and the dramatic 16-page transcript of Vickers’ interview with Bigelow and Boal on July 15, 2011, in which the DOD Under Secretary describes in detail the planning for the bin Laden mission and the intelligence uncertainties (40 percent, 60 percent, 95 percent) about bin Laden being at the compound.
The only documents about the raid yet released in response to a FOIA request are ten emails relating to bin Laden’s burial at sea. One remarkable document included in the release is a May 2, 2011, 2:02 AM email – stating simply, “Sir, FEDEX delivered the package.” – that confirmed that bin Laden’s body had been transferred to the USS Carl Vinson somewhere in the North Arabian Sea.
A large part of the reason the declassified record is so meager has to do with the transition of many records on bin Laden from the DOD to the CIA in 2013.
The transition was preceded by a 2011 announcement by the Office of the Secretary of Defense (OSD) that it would be handling all FOIA requests concerning bin Laden DOD-wide. Some speculated this was because OSD was concerned another DOD component would “improperly” release a document that OSD argued in court should be secret.
Concern about what OSD would do with the DOD-wide records in its possession increased in 2013, when an Associated Press article by Richard Larner revealed that the Defense Department was in the process of sending all of its records on the Osama bin Laden raid to the CIA, effectively sealing them into the “FOIA black hole” of government secrecy. The transfer ensured that the files would be placed in the CIA’s operational records, a records system that –due to the 1984 CIA Operational Files exemption— is not subject to the FOIA and is a vortex for anyone trying to access the files within. The move prevented the public from accessing the official record about the raid, and bypassed several important federal records keeping procedures in the process.
Upset by the Pentagon and the White House’s open-door policy with Hollywood‘s Zero Dark Thirty filmmakers about the raid to capture bin Laden, misleading statements in press conferences, leaks of national security information to magazines, and the official administration position that any official release of documents could harm US national security, the Archive published an electronic briefing book in 2013 documenting the public’s attenuated record of the most important American military action of the twenty-first century. The officially disclosed record is anemic. And thanks to the DOD’s transfer of files to the CIA, it’s likely to stay that way.
For its part, the CIA recently denied the Archive’s mandatory declassification review (MDR) request for a widely circulated (and reported) memo concerning bin Laden’s capture, citing its operational files exemption. In a decision unfortunately upheld by the Interagency Security Classification Appeals Panel, the CIA denied the Archive’s request for a September 2010 memo entitled “Anatomy of a Lead,” chronicling how the the Agency identified Abu Ahmed al-Kuwaiti, bin Laden’s courier who led the U.S. to him, on the grounds that if such records existed, they would be contained in the CIA’s operational files, and exempt from search and review.
The CIA frustratingly claimed the operational files exemption applied to this important document even though the memo was referenced in the Associated Press article “Osama Bin Laden’s Hunter: CIA Analyst Examined,” which noted that the CIA successfully lobbied Congress with the intelligence presented in the memo and received tens of millions of dollars to support the growing intelligence effort. This document was also, upon information and belief, included in the 6 million pages reviewed to produce the Senate Torture Report. As such, it cannot be withheld under the CIA’s operational files exemption.
And yet it was.
The Department of State’s recent declassification of cables concerning bin Laden’s whereabouts are to be commended. They are a drop in the bucket, however, compared to the vast swaths of information that remains obfuscated by the CIA’s damaging operational files exemption. One route either the DOD or CIA could take to make more official information on bin Laden and his death available to the public would be to release a review similar to either the 1980 Holloway Report — conducted by the Joint Chiefs of Staff to investigate the failed Iranian hostage rescue attempt, Operation Eagle Claw — or the 1997 review of the disastrous October 3-4, 1993 Army Ranger defeat in Somalia. Considering the significant success of the Special Forces in the bin Laden raid, such a publication would be in both the government’s and the public interest.
 The National Security Archive and others, including OpenTheGovernment.org, Steve Aftergood of Secrecy News, and Douglas Cox from DOCEX BLOG, recently submitted comments suggesting which CIA operational files should be removed from their exempted status. The CIA is in the process of conducting its third decennial review of its operational files, which is required by the CIA Information Act of 1984, to “include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.” The Archive highlighted the need for the CIA to grant the public the ability to request search and review of the Clandestine Service History Program files (the second decennial review in 2005 added a new category of exemption of Policy and Management Files “Including Clandestine Service History Program files”).
 50 USC 431(c)(3) specifically provides that “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity” shall continue to be subject to search and review. The Archive used this very rule to successfully argue for the release of over 100 CIA documents on 9/11 that were mentioned in the footnotes of the the 9/11 Commission Report, which Florida ex-Senator Bob Graham is still fighting to have the final 28 pages — allegedly concerning Saudi involvement in the plot — declassified.
Fighting Russia’s “Foreign Agent” Law, Deadline to Submit Comments for CIA Operational Files Review Tomorrow, and Much More: FRINFORMSUM 4/30/2015
This afternoon the Archive’s Nate Jones will join other experts at The Kennan Institute in a panel discussion comparing the Russian and American experience and practice of public oversight of the state. The successes in the Russian arena are even more impressive considering the notorious 2012 “foreign agents” law that labels any Russian NGO receiving foreign funding a “foreign agent” and forces them to register with authorities. Russian groups, however, are showing remarkable tenacity in finding ways to operate in the harsh environment. The Moscow Times must-read profile of Freedom of Information Foundation (St. Petersburg), and it’s director Ivan Pavlov, describes how this Russian NGO advocating transparency (a longtime institutional ally of the National Security Archive) is continuing to succeed in Russia’s harsh environment.
Tomorrow is the deadline to submit comments suggesting which CIA operational files should be removed from their exempted status. The CIA is in the process of conducting its third decennial review of its operational files, which is required by the CIA Information Act of 1984, to “include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.” The National Security Archive recently submitted comments, which highlight the need for the CIA to grant the public the ability to request search and review of the Clandestine Service History Program files (the second decennial review in 2005 added a new category of exemption of Policy and Management Files “Including Clandestine Service History Program files”). CIA Historian Dr. David Robarge recently emphasized the need to disclose these important histories, saying during the recent forum, “NDC Prioritization: What Secrets Do People Want to See,” that “I’d like to see us acknowledge more covert actions, but within that set that we have, we need to get more documentation out.” It will be interesting to see if the Office of the Director of National Intelligence, its General Counsel Robert Litt — who announced in 2014 that classifiers and declassifiers must now ask: “not can we classify –but should we?”–, NARA, the Office of the Historian at the Department of State, and history organizations put their money where their mouth is on improving declassification and submit their own comments to the CIA.
The New York Times recently published a redacted version of a joint July 2009 report by the inspectors general for five intelligence and law enforcement agencies that the paper obtained through a FOIA lawsuit. The document found the secrecy surrounding the National Security Agency’s (NSA) post-9/11 surveillance program that vacuumed up Americans’ phone call and email data, Stellar Wind, hampered its effectiveness. The report also notes that law enforcement agencies struggled to identify instances where the program helped deter terrorist actions against the United States; the FBI reported that only 1.2 per cent of surveillance leads obtained through the program made significant contributions in fighting terror between 2001 and 2005. The report also criticizes then-Attorney General Alberto Gonzales “for ‘misleading’ Congress in his testimony about the program” before the Senate Judiciary Committee in 2006, and found that “only a single” Justice Department attorney reviewed the legality of the program for first year and a half of its existence.
A bipartisan group of lawmakers introduced a bill on Tuesday to end the NSA bulk surveillance of American phone records. Sen. Patrick Leahy (D-Vt.) said of the USA Freedom Act, “If enacted, our bill will be the most significant reform to government surveillance authorities since the USA Patriot Act was passed nearly 14 years ago.” The USA Freedom Act would require the Foreign Intelligence Surveillance Court to provide a provide public summary or redacted version of significant opinions, would grant technology companies “more leeway to report on the scale of national security requests for data they receive, and it would provide for an advocate for the public’s privacy rights at the Foreign Intelligence Surveillance Court, which generally hears only the government’s side of an argument.” Some civil liberties groups, like the Center for Democracy & Technology, support the legislation, while others, like the American Civil Liberties Union, do not believe it goes far enough and would prefer to see Section 215 of the USA Patriot Act, which authorizes the bulk collection and expires on June 1, lapse.
In 2013 the White House granted the CIA waivers to conduct drone strikes in Pakistan with more leeway than other parts of the world. Reports are surfacing in the wake of President Obama’s recent announcement that an American and an Italian hostage were killed in a CIA drone strike in that country in January that the CIA is allowed to conduct strikes in Pakistan without “knowing the identities of the people” targeted. Additional reporting notes, “Every independent investigation of the strikes has found far more civilian casualties than administration officials admit.” In the light of recent scrutiny of the drone program, President Obama allegedly plans to make a push to transfer the program from the CIA to the Pentagon, in hopes it would make the program more transparent. The move would maintain a role for the CIA, which would continue to provide intelligence. President Obama tried to move the program from the CIA to the DOD in 2013, but faced stiff Congressional opposition.
The New York Times published the names of three high-level CIA officials in charge of orchestrating drone strikes in a story on Congress’ continued support of the CIA’s drone program. The Times did so against agency wishes. According to NYT executive editor Dean Baquet, while he took the agency’s request not to publish the names seriously, he ultimately decided to publish them because the involved officials are not undercover agents, but rather government officials crucial in “one of the major issues in modern American warfare.” Baquet also noted that the WikiLeaks and Snowden disclosures put more pressure news agencies, once “too quick to withhold information at the request of the government”, to not hold back. “I think the secrecy is now part of the story,” Baquet said.
Steve Aftergood reported this week that the security cleared population decreased by 12.3 per cent last year (down from 5.1 million security cleared persons in October 2013 to 4.5 million in October 2014), thanks to a “concerted effort” by agencies to reduce the number of security clearances. Aftergood notes “Most of the reductions occurred within the Department of Defense, which reported a 15% decrease in clearances.”
The hacking of President Obama’s unclassified emails by Russian hackers raises many complicated questions about the emails and their content, as well as larger questions about the state of the US government’s relatively poor cyber security. Archive FOIA Director Nate Jones notes “it’s currently –by design– impossible for us on the outside to have enough information to meaningfully tackle [these questions]. But if we judge by this administration’s past practice, it will bury its head in the sand, refusing to admit that the need for discussion about access to information actually exists.”
The nuclear inspection agency that is central to the current Iran negotiations is flunking international transparency norms, according to a report posted this week by Freedominfo.org and the National Security Archive’s Nuclear Vault. Key documents about International Atomic Energy Agency (IAEA) proceedings, found in various national archives and private collections but closed at Agency headquarters in Vienna, are included in the posting.
The FOIA Advisory Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration,” recently held its fourth meeting. We will post a more comprehensive blog about the fourth meeting once the video is posted; the Committee’s third meeting on January 27th was dedicated to subcommittee reports on proactive disclosure, fee issues, and oversight and accountability.
This week’s #tbt document pick is chosen with the Archive’s recent posting on newly declassified White House tape transcripts that reveal LBJ regretted sending U.S. troops into the Dominican Republic in 1965, telling aides less than a month later, “I don’t want to be an intervenor,” in mind. This week’s #tbt pick is a 2013 posting on forced disappearance in the Dominican Republic, containing a collection of State Department cables on the May 26, 1994, disappearance of celebrated journalist and university professor Narciso (Narcisazo) González.
Last week CNN and the New York Times reported that the breach into the Department of State’s unclassified email systems had spread to the White House. While the server containing the President’s emails was not breached, an unknown number of unclassified emails he sent to other aides (if we believe the anonymous administration sources quoted by the New York Times) were read by Russian hackers and shared with the Russian intelligence service.
Only the hackers, the people the hackers shared the emails with, and (presumably) some in the Obama administration know how many emails were breached and what their content was. This means that the public is faced once again with the dilemma of political “information asymmetry” –when we are rendered more powerless because we are not allowed to know the magnitude of a problem facing our elected representatives.
Reading between the lines of the Times article, White House officials seem to be saying: this is our problem, let us deal with it, and stop prying. (The official explanation given to the Times was to “avoid tipping off the Russians.”)
While some may be more than happy with this explanation, it doesn’t work so well for me. Here are a few questions about the situation:
- How many emails were breached and what was their general content? Was it mundane, day to day information? Merely information about “his golf game?” Or were they conversations with diplomats and ambassadors where the president may have emailed something unclassified but still geopolitically sensitive: “I think we should (or should not) allow Russia to control events in the Donbass region” ? Do Americans have a right to know what their president actually thinks? Or are the nothing-burger explanations of Josh Earnest, Jen Psaki and Marie Harf the best we deserve?
- Given the our government’s relatively poor cyber security, how likely is it that American adversaries had access to the content that Manning and Snowden (and others) leaked, before the American public did? Is it possible that our adversaries had already culled SIPRnet, or gained admin system access to NSA and other classified systems? How likely is it that the information these “traitors” released to the public was already known by our adversaries?
- If these emails have indeed been shared with the Russian intelligence service, could its advantage be leveled if the White House (or another group of hackers) posted the emails online? Is it better for only a rival to have this information? Or everyone, including the president’s constituents?
The questions above are asked seriously, and I know the answers are certainly complicated. And it’s currently –by design– impossible for us on the outside to have enough information to meaningfully tackle them. But if we judge by this administration’s past practice, it will bury its head in the sand, refusing to admit that the need for discussion about access to information actually exists.
The Department of State refuses to admit that the WikiLeaks State Department Cables are authentic, redacting (flagging, actually) large portions in response to FOIA requests. To its partial credit, the Office of National Intelligence declassified a large amount of information on US dragnet data collection in response to the Snowden Revelations (and continues sucking all the data up), but at the same time it allows the agencies it oversees to continue to hide 1940s-era histories.
For Pete’s sake, the first thing the sputtering National Declassification Center (a flagship Obama classification reform initiative) chose to declassify were the Pentagon Papers, already available in every public library, hardly a revelatory symbolic declassification.
So. I predict the Administration and its securocrats will again attempt to proceed as if it were business as usual. The only thing worse that private discussions being revealed to a foreign adversary –private discussions being revealed to the public.
I will, however, end with a glimmer of good news. The public will eventually know what was in President Obama’s emails, including those hacked by the Russians. After he’s left office, of course. The P5/B5 “withhold it because you want to” exemption –which these emails would certainly be withheld under– expires 12 years after the date the document was created (the drafters of the Presidential Records Act had foresight FOIA drafters did not). And unlike former President George W Bush and former Secretary of State Clinton, President Obama took action in 2009 to ensure that his email and the email of his White House employees would be preserved for the public to see.
Delayed satisfaction? Yes.
Denied public engagement? Yes too.
The power of political Information Asymmetry.