A version of this article originally appeared on FreedomInfo.org.
By Toby McIntosh
An advisory committee on the US Freedom of Information Act has recommended that government agencies should be given more flexibility to waive fees.
Ending two years of work, the advisory committee (which will be reconstituted) made this suggestion and others as part of a call for the Office of Management and Budget to rewrite decades-old guidance to agencies on interpreting FOIA.
On fees, the subcommittee worked out compromise language after some members, mainly from government agencies, resisted language supportive of total agency discretion to grant not to charge fees. Such flexibility would foster confusion, favoritism and litigation, said speakers, including Melanie Pustay, Director of the Office of Information Policy of the United States Department of Justice.
Supporters of more leeway on fee decisions countered that many agencies already exercise such discretion, that confusion exists about waivers, fee categories, and administrative discretion not to charge fees and that litigation over waivers is costly. One suggested abolishing fees altogether. The subcommittee report documents that fees contribute only about one percent of the cost of administering the FOIA.
The recommendation was moderated to achieve a unanimous recommendation. It says that the Archivist (to whom the advisory committee reports) should urge OMB to issue new FOIA guidance that would “address how agencies may use their administrative discretion (rather than a formal waiver) to decide not to charge FOIA fees when the interests of the United States would be served and is clearly articulated.”
Oversight Report Critical
The committee also received a subcommittee report concluding that government’s oversight methods for of the FOIA process “are not sufficient.”
The subcommittee collected previously released agency reports on compliance with the FOIA, an “phenomenal” effort that generated praise for Nate Jones (an advisory committee member) and Lauren Harper, both of the National Security Archive (the Washington-based nongovernmental organization that also publishes FreedomInfo.org.)
The agency reports indicate that the oversight challenges “have not been effectively addressed in a systematic fashion, but rather with a ‘one agency at a time’ approach,” the subcommittee concluded. “While challenges of resources, jurisdiction, and management make it difficult to propose specific solutions to address the issues documented in these reports, it is clear that improvements are necessary regarding the oversight and accountability of FOIA administration.”
Jones said, “Reporting is important but it can’t be the be all and end all of FOIA compliance.” At the top performing agencies there is strong commitment from top leaders, he said. He advocated having government “FOIA watchdogs” as monitors.
The subcommittee held a lively discussion of an academic study whose author presented her conclusion that the government is subsidizing private sector FOIA requesters.
Commercial requesters account for more than 80 percent of requests at some agencies, said Margaret Kwoka, who documented her findings in “FOIA Inc.,” the final version of which has just appeared in the Duke Law Journal.
The University of Denver law professor said “it is entirely likely that some fraction of commercial requests do advocate democratic goals” but also said that some requesters are seeking information about competitors, others are conducting due diligence about potential environmental problems with real estate deals, and some are building proprietary databases whose use can be expensive.
FOIA fees cover almost none of the costs, she said, creating “an unintended corporate subsidy.” The Food and Drug Administration has a $33 million FOI budget and about three-fourths of the FOIA traffic comes from commercial requesters, she said. Government could save money lower FOIA requests times by proactively releasing the most-requested material and also, she said, suggested some incentives for agencies and higher fees for commercial requesters.
Some government officials on the advisory panel cited several potential problems with wholesale disclosure, including how to deal with situations when the submitter of information must be notified of its release. Several committee members discounted this and suggested minimizing the step by improving the design of government information gathering.
Larry Gottesman, a committee member from the Environmental Protection Agency, said his agency expects to reduce the number of FOIA requests by about 40 percent with the coming introduction of “My Property” which will enable users to see if a property has environmental problems and to receive an official “Certificate of Conformity.”
Also frequently requested are FDA Form 483 inspection reports on drug manufacturing facilities. An FDA official in the audience told the committee that the agency gets requests for about 25 percent of the 10,000-12,000 reports but that posting them all would not be the best use of resources. She said the agency had proactively issued some reports in anticipation of public interest, such as those about pharmaceutical compounding firms.
The following report, by the FOIA Advisory Committee’s Oversight and Accountability Subcommittee, was originally posted on the Office of Government Information Services website.
As part of the Federal Freedom of Information Act Advisory Committee’s charter “to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures,” the FOIA Oversight and Accountability Subcommittee has collected previously released reports on agencies’ compliance with the FOIA. The focus of this review was to learn from past successes and challenges to forge a more effective collaboration between federal agencies and the FOIA requester community.
The FOIA Oversight and Accountability Subcommittee compiled more than 80 previously released Inspector General, Government Accountability Office, and other reports on agencies’ compliance with the FOIA. Collectively, there were positive findings in the reports, but the reports show there are persistent challenges in implementing FOIA across the federal government. Additionally, the reports indicate that these challenges have not been effectively addressed in a systematic fashion, but rather with a “one agency at a time” approach. While challenges of resources, jurisdiction, and management make it difficult to propose specific solutions to address the issues documented in these reports, it is clear that improvements are necessary regarding the oversight and accountability of FOIA administration.
The positives gleaned from the reports include the following:
Good Communication With Requesters
In its review of the National Archives and Record Administration’s (NARA) FOIA program, the Office of Government Information Services (OGIS) found that NARA provided good customer service regarding FOIA matters. Namely, “Special Access and FOIA employees generally provide great customer service. Each day a Special Access and FOIA employee is on-call at the Archives facility in College Park, MD, to assist researchers who visit the facility. The on-call employee is available to provide on-demand screening allowing in many, but not all, cases records that were flagged as possibly restricted when they were accessioned by NARA to be released without a FOIA request. The on-call employee also is available to help requesters with filling out standard FOIA request forms and to answer other FOIA-related questions.” In addition to this finding, NARA consistently provides contact information to FOIA requesters in all of its written communications that include both a phone number and an email.
Using Technology to Improve the FOIA Process
A March 9, 2016, Office of Government Information Services (OGIS) compliance report found that Customs and Border Protection (CBP) adopted FOIAonline to help manage its FOIA requests. OGIS recommends, however, that CBP must “regularly post released records into FOIAonline’s records repository,” going on to note that “CBP’s website does not help requesters understand the FOIA process or how to use FOIAonline.”
Improved Management Practices
The March 9, 2016 OGIS report found that CBP corrected errors in its FOIA program and improved management practices. The improvement steps taken by CBP included hiring additional FOIA staff and shifting resources to address critical issues when needed for “triage”. Additionally, the majority of CBP’s FOIA-related litigation between FY 2009 and 2015 cited “CBP’s lack of response and/or delay as a reason for suing,” costing the agency $1.2 million. To help address this issue, CBP FOIA managers requested 20 new positions for the FOIA branch; a good step. However, FOIA managers learned in January 2016 that funding was not approved for those positions. This decision will likely hamper CBP’s efforts to improve processing times and reduce costly litigation.
Taking Advice from OGIS
In September 2015, OGIS posted its FOIA compliance assessment of the Coast Guard’s FOIA program. OGIS found that, among other things, the Coast Guard needed to improve its communication with requesters and harness the power of technology. The Coast Guard responded to the OGIS assessment by updating its FOIA Manual to improve processing, researching FOIA software systems “that could help [the Coast Guard] become more efficient and streamline [its] FOIA process,” and overhauled its FOIA webpage to improve the user experience.
While there were positives found in the reports that were reviewed by the subcommittee, there were challenges identified too. A sampling of the challenges that were identified in the reports include the following:
Not Posting Enough Documents Online in Accordance with the 1996 E-FOIA Amendments
A March 23, 2015 Office of Personnel Management (OPM) Inspector General (IG) report identified that OPM needs to improve its compliance with the E-FOIA amendments of 1996. This amendment mandates that agencies post key sets of records online, provide citizens with detailed guidance on making FOIA requests, and utilize new information technology to proactively post records online that would become of significant public interest, including those already processed in response to FOIA requests and “likely to become the subject of subsequent requests.” According to OPM’s IG report, as of 2015, OPM does not have a formal policy addressing “the requirement to post FOIA information online that has been requested multiple times (three or more requests). Additionally, OPM’s request tracking system does not identify the type of information requested. Consequently, OPM’s FOIA Office cannot identify multiple requests that should be posted.”
OPM fails to populate its FOIA reading room, which the E-FOIA requires agencies to maintain with, among other things, frequently requested records or records likely to be the subject of FOIA requests.
In 2015, the Department of Justice Office of Information Policy (OIP) issued guidance encouraging federal agencies to proactively post information. Additionally, OIP distributed a checklist to help agencies determine when records should be proactively posted. While the guidance is beneficial, there is no evidence that agencies are following it and the small increase in proactive posting government-wide indicates that more oversight may be necessary.
Not Making Discretionary Releases in Accordance with 2009 Presidential Memorandum
A March 30, 2011 Department of Homeland Security (DHS) Inspector General (IG) report identified multiple instances in which the DHS’s Office of the Secretary staff did not have sufficient knowledge of the FOIA, to the extent that it compromised the agency’s ability to make discretionary releases.
The report indicates that in one instance, the staff “implied that the potential embarrassment of DHS should be considered when making proactive disclosure decisions” despite clear guidance to the contrary. Furthermore, the report documents instances of other senior DHS officials cautioning against making discretionary releases and instructing staff to send only public information in response to a records requests.
Backlogs and Inadequate Searches
A Treasury Inspector General (IG) for Tax Administration report dated September 17, 2014 determined that the Internal Revenue Service (IRS) needed to continue to reduce its backlog of FOIA requests. The report also found that the IRS failed to adequately search for and provide information in 15 percent of its FOIA responses.
A previous IG report dated September 20, 2013 identifies a challenge of not adequately searching for information in response to records requests to be one that is declining. This report determined that the IRS failed to adequately search for and provide information in 5.6 percent of its responses.
Not Reporting FOIA Abuses
The State Department Inspector General (IG) recently published highlights showing that systemic FOIA issues are compounded when people don’t speak out when they know FOIA procedures are not being properly followed. The IG noted that State’s FOIA office gave an “inaccurate and incomplete” no documents response to a FOIA request concerning Hillary Clinton’s email usage even though employees within the Department of State knew both of Clinton’s personal email account and the FOIA request. Additionally, the report determined that the secretary’s office lacked written procedures for handling FOIA requests and that some requests lingered in a queue for more than 500 days without a reply. These findings speak to the importance of an oversight mechanism to address these FOIA failures before they compound into the current crisis facing State’s FOIA Office.
Unclear Fee Waiver Requirements
An Environmental Protection Agency (EPA) Inspector General (IG) report determined that the agency should clarify fee waiver requirements and standardize processing time to reduce concerns of differential treatment among requesters. The IG report urges the agency to “clarify what requesters must demonstrate under the six review factors and when to obtain additional justification from requesters to lessen any perception of potential differential treatment when evaluating fee waiver requests.”
Not Using Technology to Improve FOIA Training Process
A Nuclear Regulatory Commission (NRC) Inspector General (IG) report dated June 14, 2014 determined that NRC management has not utilized effective internal controls to take advantage of FOIA training and available technology. “As a result, the NRC’s FOIA processing costs are high and the timeliness requirements are not consistently met.”
Not Properly Reviewing FOIA Releases for Segregability
A Securities and Exchange Commission (SEC) Inspector General (IG) report dated September 25, 2009 found that the manner that the Commission’s Chief FOIA Officer functioned was not in compliance with the requirements of Executive Order 13392 or the OPEN Government Act.
This report identifies a number of areas where the SEC’s FOIA process needed improvement, not least of which is when the agency conducts review for segregability. The IG specifies “There is not a well-documented process for reviewing documents to segregate potentially responsive documents that can be disclosed and, thus, the search may not be sufficient” despite the FOIA’s instruction that “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” Indeed, the IG indicates that in many instances no effort was made to segregate records.
The House Oversight and Government Reform Committee released a report on January 11, 2016 that re-identified many of these challenges. The Committee identified a myriad of FOIA failures across the government including:
- The improper application of FOIA exemptions at the Federal Communications Commission, which redacted the Chairman’s name and initials in official, work related emails
- Roadblocks and poor communication with requesters at the Customs and Border Patrol, which only responded to a requester in one instance after Congress inquired about the status of the request
- Refusing to provide all responsive records at the General Services Administration, which failed to provide a requester with responsive records, despite the requester’s conveyed desire for the documents, by erroneously stating it did not want to charge the requester for non-responsive records
- Excessive fees “that appear to be designed to deter requesters from pursuing requests and create barriers to accessing records” including at the Drug Enforcement Agency (DEA). The DEA charged a FOIA requester nearly $1.5 million for one request for records on “El Chapo” Guzman.
While the Congressional Committee proposes legislative resolutions to these ongoing challenges, this Subcommittee believes that without more effective oversight or compliance mechanisms, the FOIA challenges may continue to occur, even if forbidden by statute.
The Office of Government Information Services (OGIS) has begun issuing assessments of federal agency FOIA programs. To date, OGIS has published assessments of the Customs and Border Protection, the Transportation Security Administration, the U.S. Coast Guard, the Federal Emergency Management Agency, and the National Archives and Records Administration. These assessments are a positive step, but agency participation is voluntary and may take decades for OGIS to review each agency subject to FOIA.
The previously released Inspector General and Government Accountability Office reports and the dozens of others compiled by the Subcommittee demonstrate that the current oversight approaches are insufficient and not improving the FOIA programs throughout the federal government. The first step to improving FOIA oversight and compliance is acknowledging that the current oversight methods are not sufficient. After this acknowledgement, we can begin to endeavor to create a regime that efficiently and comprehensively ensures oversight of the Freedom of Information Act is being correctly administered with a “presumption of disclosure” as instructed by President Obama and Attorney General Holder and holds accountable those who fail to do this.
Agencies Hope FOIA Delays Outlast Public Scrutiny, Upcoming FOIA Committee Vote to Update OMB Fee Guidance, and More: FRINFORMSUM 4/14/2016
“AP didn’t get this through FOIA, did they? If so, maybe it’s time to hire some new redactors. They got a bit too much of an inside view.” This quote (whose author is redacted) comes from documents obtained by AP from the US Agency for International Development (USAID) – yes, through the FOIA – on the sham “Cuban Twitter” account funded by USAID to stir political unrest in the communist country. AP filed the FOIA request when the story first broke in 2014, and USAID officials hoped that the glacial FOIA process would mean that the story was no longer news once the documents were released. One senior official, Mark Lopes, said, “The risk is that it gets FOIA’d later. FOIA will take six months,” going on to say, “I say yes so we get through the next week, six months from now when FOIA comes out, this will all be over?” Lopes underestimated the FOIA delays at the agency – the request took two years to process. The documents clearly show the agency has forgotten – or is willfully disregarding – the President’s instruction that information not be withheld “merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”
USAID isn’t the only bad actor willfully disregarding the FOIA – or dragging its heels to improve the FOIA process to keep embarrassing information out of public view.
An Army document leaked last year shows two generals discussing delaying a response to a New York Times FOIA request on concussions at West Point for public affairs reasons. The Times FOIA request sought information on concussions resulting from a mandatory boxing class, and Army surgeon general, Lt. Gen. Patricia D. Horoho, suggested that rather than promptly replying to the request, “trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.” An Army official who opposed encouraging other publications to run a more favorable story leaked the document to the Times. “After learning of the [leaked] document, the Air Force Academy and West Point quickly released concussion numbers.”The FOIA Advisory Committee’s last meeting will be held on April 19, 2016 (register here to attend). The Committee’s biggest deliverable to date is working to update outdated OMB FOIA fee guidelines – that date all the way back to 1987. The DOD’s Jim Hogan, who is also the fees subcommittee chair, notes that the guidance is missing a key word: “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that the Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover [word missing] of their costs.” Is the key missing word “some”, “half,” “most”, or something else? The Committee voting to rectify this lingering issue and bring the guidance into the 21st century will be of lasting importance.
Former Senator Bob Graham recently appeared on 60 Minutes and renewed calls to declassify 28 pages that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. The Bush administration excised the pages, which detail Saudi involvement in the 9/11 attacks, on the grounds that their disclosure would harm national security. Graham said, however, that he remains “deeply disturbed by the amount of material that has been censored from this report,” and the Saudi government is also urging for the pages to be released. Former Secretary of the Navy, John Lehman, added that he – and many other officials calling for the report’s declassification – “know when something shouldn’t be declassified. An[d] the, this, those 28 pages in no way fall into that category.”
Haqqani Network (HQN) fundraising efforts have deep roots in the Gulf States and in the oil industry; the Pakistan Inter-Services Intelligence Directorate funneled $200,000 to HQN for an attack on the on the CIA facility at Camp Chapman; squabbles over low-level militants not giving kickbacks from ransom money to Haqqani leadership; and Hamid Karzai’s brother hooking a Haqqani informant up with a job at a US security base so the informant could provide details on US vehicles and personnel to the terrorist organization. These are all details found in a fascinating collection of declassified documents obtained by the National Security Archive through the FOIA showing the Haqqani Network’s efforts to diversify its funding away from the foreign sources it relied on during the Cold War, including the CIA and Pakistani intelligence services, and towards more traditionally criminal activity. These documents were requested under the FOIA as part of the Archive’s Afghanistan, Pakistan and Taliban project, and we will continue to post on interesting documents as they come in.
U.S. District Judge James Boasberg is not moved by VICE News’s Jason Leopold and MIT’s Ryan Shapiro’s efforts to obtain CIA documents on its very public battle with the Senate Intelligence Committee over the Committee’s report on the CIA torture program (whose status as a federal record remains in jeopardy). Courthouse News Service notes that Leopold and Shapiro “complained about the CIA’s failure to identify which records system it searched before denying access, but Boasberg nixed this argument as ‘oft-used but rarely successful strategy.’”
Director of National Intelligence James Clapper recently sent a memo to intelligence agency heads on the upcoming Fundamental Classification Guidance Review, effectively signaling to the agencies under his jurisdiction that efforts at classification reform are a priority for the intelligence community. Hopefully. Nate Jones tells CNN that while efforts to eliminate the “Confidential” label (the memo asks agencies to consider if this is a possibility) and requiring discretionary releases look good on paper, “the proof will be in the pudding.” The Electronic Frontier Foundation elaborates, noting that “discretionary disclosure without a strong presumption that material must be made public is a hollow effort to increase transparency. And without clear guidance to agencies about eliminating the ‘confidential’ category of classification, they may simply mark the same materials with the next-highest classification category rather than disclose the information.”
The University of Denver’s Sturm College of Law’s Margaret Kwoka has published a thought-provoking paper on how to rectify the often contentious issues surrounding FOIA fees (more on the Archive and Project on Government Oversight’s efforts to identify some of them from the requester perspective here). This Article provides “an in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It documents how corporations, in pursuit of private profit, have overrun FOIA’s supremely inexpensive processes and, in so doing, potentially crowded out journalists and other government watchdogs from doing what the law was intended to facilitate: third party oversight of governmental actors… [the]Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are the subject of routine FOIA requests—a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.”
Duane “Dewey” Clarridge, a CIA officer who was involved in the Iran-Contra affair and helped found the agency’s Counterterrorism Center, is dead at 83. In his final report Lawrence Walsh – the independent counsel investigating Iran-Contra – found that “there was strong evidence that Clarridge’s testimony was false.” Clarridge, however, was pardoned by President Bush. Read highlights from Walsh’s final report, curated and analyzed by Archive staff, here.
In the DC area next week? If so, register the American Society of Access Professional’s event celebrating the 50th anniversary of FOIA! Entitled “Food for Thought” the lunch event will be held at Carmine’s and will feature Michael Lemov, who served for eight years as chief counsel to John Moss, the father of the Freedom of Information Act. Lemov has authored the definitive history of John Moss and the Freedom of Information Act, People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights, and will regale attendees with a history of the battles that had to be fought to make FOIA a reality, and what the hopes at the time were in implementing the FOIA.
This week’s #tbt document pick is from the Archive’s newly-launched Cyber Vault, and is a February 11, 1970, Defense Science Board report on security controls for computer systems. Among the conclusions reached was that contemporary technology could not provide a secure system in an open environment, and that it would be unwise to incorporate sensitive information in an open environment system unless a significant risk of accidental disclosure could be accepted.
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Less than a dozen men were running the militant Islamist Haqqani Network (HQN) by the time the State Department declared it a Foreign Terrorist Organization in 2012, and this extremely small group continues to determine which illicit activities the organization engages in to fund its fight against US-led forces in Afghanistan. Defense Intelligence Agency documents dated from 2008 through 2010 recently obtained by the National Security Archive in response to a FOIA request offer a window into a transitional period for the organization, before the State Department declared the group a terrorist organization and the US Treasury designated Haqqani leaders as Specially Designated Global Terrorists in 2014, subjecting them to sanctions. The documents illuminate the group’s efforts to diversify its funding away from the foreign sources it relied on during the Cold War, including the CIA and Pakistani intelligence services, and towards more traditionally criminal activity – and show squabbles over the sharing of ransom money, dispersal of funds to suicide bombers, financial links between HQN and the Karzai government, and Taliban funding for the group’s activities.
One of the early financial challenges for Jalaluddin Haqqani, the group’s founder, was coping with the end of the Cold War and the drying up of American resources. Barbara Elias notes in 2009’s “The Taliban File” that Haqqani received tens of thousands of dollars and weapons from the CIA between 1986 and 1994. CIA funding ended by the mid-1990s, although Haqqani’s relationship with the US only deteriorated in earnest in the late-1990s after the US bombed an HQN-linked training camp in retaliation for al-Qaida attacks on the US embassies in Kenya and Tanzania and Haqqani’s relationship with Osama bin Laden deepened.
A Confidential June 12, 1998, State Department cable, first published in Elias’s 2012 “The Haqqani History,” notes that Jalaluddin advocated for bin Laden within the Taliban, and that bin Laden’s increased power was due at least in part to “the growing strength of his supporters within the Taliban movement.” The US’s growing concern with bin Laden is shown in a May 24, 1999, cable summarizing a meeting between Haqqani and US officials, during which Haqqani agrees that bin Laden is “a problem,” but insists that “maybe the best solution is what is taking place now with him remaining in the country.” Haqqani also says that “he was deeply appreciative of U.S. assistance during the ‘jihad’ (holy war) against the Soviets and the (Afghan) communists,” but remains antagonistic over US destruction of a terrorist camp in Khost, Afghanistan, in August 1998. Haqqani even initiates the meeting by “joking” that it was “good to meet someone from the country which had destroyed my base, my madrassh [sic], and killed 25 of my mujahideen.”
Despite the historical ties between the groups, al-Qaida funding is not a major source of income for HQN; a September 24, 2009, DIA cable shows that when al-Qaida funding was received, it was relatively small amounts that were “generally provided by Al Qaida leader Shaykh Said al-Masri through Sirajudding Haqqani and Jan Baz Zadran, who is a HQN commander in Miram Shah, PK, in amounts of approximately 3,000 – 5,000 USD.”
West Point’s Combatting Terrorism Center (CTC) notes in a 2012 report that Jalaluddin was also motivated to decrease his organization’s dependence on Pakistani financing, and began vigorous fundraising efforts in the Gulf States in the 1990s to do so. A newly released April 8, 2010, DIA cable shows this practice continues. According to the cable, a well-connected individual “travels on behalf of the Haqqani network to a city in the vicinity of Dubai to collect charitable donations which are used to fund unspecified Haqqani network operations.”
However, a series of DIA cables (from January 11, 2010, and February 6, 2010) show that some funding for Haqqani attacks are still provided by the Pakistan Inter-Services Intelligence Directorate, including $200,000 for the December 30, 2009, attack on the CIA facility at Camp Chapman.
During Jalaluddin’s tenure the group also offered microloans to those living in its territory in North Waziristan, Pakistan, in a move that fostered goodwill and “really made a difference in these communities.” The attempts at public relations under Jalaluddin is not entirely unsurprising; a 1997 State Department cable reports Jalaluddin to be “more liberal” in his opinions on social policy, such as women’s rights, and seems to have understood the importance of maintaining credibility with the local community.
Jalaluddin was forced to retire in 2005, however, and his son Sirajuddin assumed the leadership, marking an increase in the group’s illicit activity.
Protecting smuggling enterprises in the border areas under its control, as well as engaging in its own, has become an important source of income for HQN under Sirajuddin. Interestingly, according to the CTC report, HQN imports “the precursor chemicals used to process raw opium into morphine base and heroin, including lime, hydrochloric acid and acetic anhydride (AA). If true, this may indicate that the Haqqanis have a non‐competition agreement with the Kandahari Taliban in the heroin business, or it could simply suggest that Haqqani leaders have realized that smuggling precursors is less risky and often more lucrative, since a glut in poppy production drives down wholesale opium prices.”
These sustained efforts have ensured that the group remains financially autonomous from the Taliban, although it receives a monthly stipend from the Quetta branch “to cover operational costs, and the budget shifts depending on the season and the funding capacity of the Taliban leadership.”
A September 24, 2009, DIA cable notes that the Quetta branch remains a stable source of HQN funding, saying that “A large majority of the Haqqani Network (HQN) funding comes from the Quetta, Pakistan-based Taliban leadership.” The cable goes on to say that “HQN pays fighters who conduct successful attacks against coalition forces (CF) Afghan National Army (ANA) or Afghan National Police (ANP), with larger amounts paid for killing a coalition member. A key point in the dispersal and receiving of funds within the HQN is the videotaping of attacks.”
One of the shifts that occurred along with the change in leadership was HQN’s increase of kidnap-for-ransom, a “growth industry” in which HQN cooperates “seamlessly” with other militant groups, but one that seems to have effected HQN’s credibility. Bowe Bergdahl is perhaps HQN’s most famous kidnapping victim, and would have undoubtedly been on HQN’s list of “legitimate targets,” which include “government officials and security personnel; those who cooperate with government; foreigners; transporters servicing NATO; and alleged spies.” New York Times journalist David Rohde and Afghan diplomat Haji Khaliq Farahi were also targets. The CTC report notes, however, that such behavior “appears to have lowered the network in the public estimation.”
Kidnapping-for-ransom, however, remains a way for unpaid Haqqani militants to make money. Low-ranking militants earn little, if any, money, and operate with a great deal of autonomy – making the occasional moonlighting – and tension over it – all but inevitable. A Secret September 29, 2009, DIA cable recounts one such ransom dispute. “As of late September 2009, Spera District Haqqani Network (HQN) commander Hamid (Rahman) had strained relations with the HQN leadership, including senior commander Siraj (Haqqani), over ransom money embezzled by Rahman. Rahman and an unidentified Iraqi Al-Qaida associate had kidnapped a road construction worker in Spera District for ransom and neglected to send the ransom money obtained to HQN leadership in Pakistan. As a result, Siraj Haqqani ordered Rahman to return to Miram Shah/[redacted] north Waziristan, PK, in order to account for the money. Rahman ignored the order and did not travel to Miram Shah due to fear that he would be killed by HQN leadership for his transgression.”
Donations and fundraising continue to be an important for HQN. A Secret March 22, 2009, DIA cable provides an example of a routine donation for HQN. It notes, “As of mid-February 2009, the Hadika ta Uloom madrassa in Dera Ismail Khan, PK was facilitating financial support for the Haqqani Network (HQN). The leader of the mosque, Maulawi din Mohammad (Khalifa), was facilitating contact between HQN commanders and local businessmen willing to donate money and assistance to the HQN.” The five businessmen contacted, all from the oil industry, provided a total of $17,000 USD.
HQN leaders also recognize the importance of a good media campaign. The CTC report finds that “Just as Jalaluddin before them, network leaders today conduct fundraising road shows, visiting large mosques around the region where they ask for alms from worshipers. As in the past, the Haqqanis appear to realize the importance of publicity materials to communicate their successes and to help to generate donations at these events. The network publishes considerable multi‐media material concerning its activities, and appears to consider publicity a core aspect of financial operations.”
HQN’s complicated relationship with the Afghan government, and its financial payoffs, are also highlighted in a Secret August 31, 2010, cable. The cable explains how a security manager in Khost province, Qabool Khan, simultaneously provides HQN with intelligence on US bases in Salerno and Chapman, while providing HQN with money and the license plate numbers of US vehicles of military personnel and contractors that serve on the two bases. Khan obtained his position with the security company – which posted private security guards on US bases – through Mahmoud Karzai, brother of Afghan president Hamid. “Khan receives $800.00 U.S. dollars per guard, per month, in which $200.00 U.S. dollars goes to the guard, $300.00 U.S. dollars to Khan, and $300.00 U.S. dollars is given to the Haqqani network… in return Khan is not attacked by Haqqani operatives leaving the American base or Khan’s personal residence. Khan leaves his window down when leaving the American base as a signal to Haqqani operatives not to attack his vehicle.”
These documents were requested under the FOIA as part of the Archive’s Afghanistan, Pakistan and Taliban project, and we will continue to post on interesting documents as they come in.
Defending Bad FOIA Stances Costs Government Millions, Core FOIA Regs Drawn From Civil Society Recommendations Would Greatly Improve FOIA Landscape: FRINFORMSUM 4/7/2016
The US government paid out $1,904,591.60 in attorney fees and costs after defending –and losing— bad agency FOIA positions in 2015. These payments include: shelling out $30,000 to the Georgia Latino Alliance for Human Rights in their FOIA battle against the Department of Homeland Security over records on “Georgia’s increasing involvement in immigration enforcement, including information that will shed light on increasing reports of racial profiling and police abuse;” $140,000 to the Center on Race Poverty & The Environment in their case against the Environmental Protection Agency for records on several EPA Office of Civil Rights investigations; and $414,478.40 in Hall vs the CIA, a case concerning POW/MIA records.
These figures are found in the Department of Justice’s Office of Information Policy 2015 FOIA litigation and compliance report, which details OIP’s efforts to “encourage” FOIA compliance throughout the 2015 calendar year. It’s worth noting that the amount of money paid after losing FOIA cases only represents a small fraction of FOIA litigation-related costs; for example, in FY 2015 the government incurred $31,300,000 in litigation-related costs – and only recouped $4.4 million in FOIA fees, begging the question of the necessity of fees in the first place (more on that from Nate Jones here).
This incredible waste of taxpayer funding –which simultaneously upholds dubious government secrecy– underlines perhaps the key failure of the Obama administration’s FOIA policy: it’s inability to compel its Department of Justice to follow it’s own “presumption of openness” guidance, rather than defend every agency withholding at seemingly every instance.
The OIP report also discusses new guidance on the use of “still interested” letters — letters agencies send FOIA requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. While OIP guidance requires agencies to limit the instances in which they send such letters to when the agency “has a reasonable basis to believe that the requester’s interest in the records may have changed” and instructs agencies to provide requesters a reasonable amount of time to respond to the query (30 days at a minimum) – the overall premise behind these letters remains fundamentally flawed. There is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter, and any guidance that condones an agency closing a FOIA request without legal authority provided by the FOIA is misguided and should be revised.
OIP’s work developing the content for a potential set of “core” FOIA regulations as part of the Obama administration’s commitments in its Second Open Government National Action Plan was also touted in the report. On March 24 OIP released new guidance and a template for agencies to use to review and update their FOIA regulations, and announced that the guidance was the conclusion of its work developing a set of core FOIA regs. OIP notes in its litigation and compliance report that in fulfilling this commitment, “OIP launched this project by meeting with both agencies and civil society to get their initial input…Throughout the process of developing common language and practices, OIP and the working group have been, and will continue to be, engaged with civil society.”
A must-read report from OpenTheGovernment.org (OTG), however, shows that this is not the case.
As OTG notes, the regulation guidance issued by OIP does not reflect the model FOIA regulations that civil society worked extensively to develop. OIP’s guidance does not adequately address, among other things, the need to limit the application of Exemption 5, reduce unnecessary secrecy, or contain language on reducing consultations or referrals. Perhaps most troublingly, OIP does not establish a timeline for agencies to update their FOIA regulations so they reflect the most recent requirements of the statute; “A primary concern remains that, without any stipulated requirements for agencies to update their FOIA regulations, agencies – particularly the worst-performing agencies – likely won’t take the necessary steps to do so. Even when agencies do begin the steps to update their FOIA regulations, the lack of a defined timeline allows for a drawn-out process.”
Fortunately, Congress has taken a more proactive approach than the Department of Justice. FOIA reform bills that have unanimously passed in both the Senate and House (but distressingly have not yet become law) each require agencies to update their FOIA regulations within 180 days after the passage of the bills.
The Director of National Intelligence, James Clapper, requested the personal involvement of the heads of the CIA, Defense Intelligence Agency, National Geospatial-Intelligence Agency, National Security Agency, and the National Reconnaissance Office in the upcoming Fundamental Classification Guidance Review – a move that Steve Aftergood notes is “extraordinary.” The FCGR is “an effort to eliminate obsolete classification requirements and to reduce national security secrecy” and Clapper’s call to agency heads “elevates it to a senior-level imperative.” Clapper asks agency chiefs for feedback on, among other things, the feasibility of an IC-wide classification guide, the possibility of eliminating the Confidential label in the IC, and comments “on what would be required to implement a proactive discretionary declassification program distinct from the systematic, automatic, and mandatory declassification review programs.” Steve Aftergood points out the significance of Clapper’s involvement, saying, “The history of secrecy reform in the U.S. government demonstrates that it is most effective — or that it is only effective — when it is driven by senior agency leadership. Not since Secretary of Energy Hazel O’Leary’s ‘openness initiative’ in the 1990s has an agency head endorsed secrecy reform with the specificity and authority expressed by DNI Clapper.”
One of the ways agencies in the IC –and across the government– can improve their proactive discretionary disclosures is by formally adopting Clapper’s and DNI General Counsel Bob Litt’s instruction to declassify historic documents even when they may be technically “properly classified.” Two Sunshine Weeks ago, Litt stated that those with classification and declassification authority must ask themselves “not can we classify, but should we?” Pointing to Section 3.1 (d) of the Executive Order on Classification 13526 — the “Public Interest Test” that allows agencies to declassify documents even if they are technically “properly classified” — Litt claimed that declassifiers of historic documents should already be using this authority. In practice, however, they are not.
What can the US National Archives (NARA) do for truly open government? The National Security Archive’s Nate Jones argues that declassification needs to be the focus of NARA’s upcoming Open Government Plan, and suggest speeding up and expanding declassification at the National Declassification Center, celebrating the upcoming release of the remaining JFK assassination records, and declaring the Senate’s report on the CIA’s torture program a federal record as just some of the ways for NARA to establish itself as the federal government’s principled leader on declassification. Get the in-depth recommendations here.
NARA recently announced that the CIA has officially withdrawn its proposed email retention plan that would have allowed it to destroy all the email records of all but 22 high-level agency employees. The National Security Archive and many of our open government colleagues asked NARA to deny the CIA’s plan when it was revealed in 2014. Senators Patrick Leahy and John Cornyn also urged NARA to reject the CIA’s proposal to destroy its email records, noting that the CIA’s plan should raise a red flag considering “We  know that CIA personnel have in some instances deliberately destroyed records or other materials, suggesting that the National Archives must be particularly cautious in approving any policy permitting permanent destruction of CIA records.” A NARA official tentatively approved the CIA’s plan in August 2014, but announced later that year it would “reassess” the CIA’s proposal in light of the criticism the request has received. Steve Aftergood notes that the “CIA is still obliged to present a plan to the National Archives to explain how it will preserve or dispose of its email records. CIA can either adopt the standard template known as the Capstone General Records Schedule, or it can devise a specific plan of its own for approval by the National Archives.”
Which cities were the most heavily-targeted in Strategic Air Command’s nuclear weapons requirements study for 1959? The National Security Archive has posted the full 306-page list after a number of interested readers wrote to find out whether their city or locality is on the massive list of urban-industrial complexes that was part of the SAC study, initially posted by the Archive in December 2015. The full list show shows Berlin, Bucharest, Budapest, Dresden, Leipzig, Riga, Sofia, Tallinn, Tbilisi, Vilnius, Warsaw, and Wrocław (Breslau) were among the most heavily-targeted.
A fascinating read to tide baseball fans just in time for opening day: The Wilson Ramos Kidnapping Declassified. A State Department cable released in part thanks to a National Security Archive FOIA request sheds light on the scary 2011 incident, lauds Venezuelan police forces for his rescue, and raises more questions on the possibly motivation for the Washington Nationals catcher’s kidnapping. The Archive is appealing the redactions to learn more.
This week’s #tbt pick is a 2013 posting from the Archive’s Nuclear Vault on the Israel-Argentina Yellowcake connection; the posting includes previously secret documents that show Canadian intelligence discovered Israel purchased 80-100 tons of yellowcake from Argentina during 1963-1964 for its nuclear weapons program.
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Today the Nuclear Vault publishes an update of its widely read 22 December 2015 posting on the Strategic Air Command’s nuclear weapons requirements study for 1959. A number of interested readers wrote to find out whether their city or locality is on the massive list of urban-industrial complexes that was part of the SAC study. To help those and other readers, the Archive is publishing in its entirety the 306-page list included in part 1 of the study. The list in part 2 is essentially the same. The only difference would be the numbers of nuclear weapons assigned to the targets but that information was completely exempted from both lists.
Heavily-targeted Eastern European cities revealed in the list include: Berlin; Bucharest; Budapest; Dresden; Leipzig; Riga; Sofia; Tallinn; Tbilisi; Vilnius; Warsaw; and Wrocław (Breslau).
The Department of State has declassified a cable on the November 9, 2011 kidnapping and November 12 rescue of Washington Nationals star catcher Wilson Ramos in response to a National Security Archive Freedom of Information Act request. According to previously “Secret/NOFORN” cable composed by the US Embassy in Caracas, Ramos’s rescue “was the result of good police work” by Venezuela’s Corps of Scientific, Penal and Criminal Investigative Corps (CICPC).
On the evening of November 9th, Ramos was kidnapped at gunpoint from his mother’s home in the city of Valencia, near the Caribbean coast. According to Ramos’s account, the gunmen threw him into the back of a Chevorlet Captiva and covered his face with a black t-shirt. They drove to a mountainous region near the town of Montalban in central Venezuala. There, they did not physically harm Ramos, attempted to feed him (arepas with sardines), and told him that they “were going to ask for a ton of cash for [him].”
According to the Department of State cable, the CICPC “already had the abductors under investigation prior to Ramos’s kidnapping because the group had kidnapped other individuals in the same area of Valencia.” The State Department also reported that the CICPC used “source information and wiretaps” to immediately “identify the individuals responsible and and the location where Ramos was being held.” This information allowed CICPC to “act quickly and immediately” and begin planning its rescue mission. State reports that approximately 300 CICPC officials worked on the case. Hugo Chavez, himself, had repeatedly called the CICPC director demanding updates, and personally authorized the search and rescue mission.
After 50 hours in captivity, Venezuelan commandos raided the building he was being held and exchanged gunfire with his captors for –according to Ramos– as long as fifteen minutes. Finally Ramos was rescued, and was returned at 3:0o AM to a celebrating crowd at his mother’s house in Valencia.
“Thank God, I’m alive and here at home…I thank you for everything. I don’t have words to express all that I feel, and how thankful I am for all your help. Thank you, for real. I really love you,” Ramos told the crowd.
According to the State Department cable, based on US Embassy contacts with Venezuelan law enforcement and media reports, “The kidnapping ring responsible for Ramos’s abduction does not appear to have been highly sophisticated. The kidnappers may have believed Ramos would be an easy target and perhaps underestimated the international media attention” his kidnapping would generate.
The embassy was correct. Ramos –who hit .267 with 15 home runs in 2011– was a beloved member of the Washington Nationals, and fans throughout the Washington, DC area, United States, and world closely watched for any updates on his plight. Distraught National Fans held a vigil at Nationals Park. It is likely the outpouring of Nationals and American, Venezuelan, and international baseball fans contributed to the catcher’s release. He remains a highly-productive and much loved player on the Washington Nationals.
But the State Department cable does not close the case on Wilson Ramos’s kidnapping. After his return, questions began to emerge about the exact nature of the crime. A February 2012 Sports Illustrated article raised the possibility that Ramos may have been kidnapped because “he chased the wrong woman.” The same article also speculated that Detroit Tigers star Miguel Cabrera secretly paid the ransom to bring Ramos home. Finally, Sports Illustrated posited that to save face, the Venezuelan authorities may have arrested six people with no actual relation to the kidnapping.
The declassified cable, written before the Sports Illustrated article was published, does not answer any of these theories. It does, however offer an additional one: that the FARC, a Colombian guerrilla movement, may have been behind the kidnapping. The cable reports that “in his public statements Ramos claimed that two abductors spoke with Colombia accents and spoke of a ‘la guerilla.'”
The cable also raises more questions. After its speculation on the FARC, a substantial section of the cable has been redacted on claimed “national security” grounds , leaving the public to wonder which aspect of the Wilson Ramos kidnapping still remains hidden.
Of course, the National Security Archive has appealed this redaction.