Third National Action Plan Released, Senate CISA Vote Threatens Integrity of the FOIA, and Much More: FRINFORMSUM 10/29/2015
The Obama administration has just released its third National Action Plan updating its commitments to the Open Government Partnership (OGP), an international coalition working to make governments more transparent and accountable. As with previous plans, the third NAP includes a lot of potentially powerful transparency initiatives – like its commitments to streamline the declassification process, including establishing a “special systematic declassification review program” at the National Declassification Center “for previously reviewed and exempted historical Federal records that were accessioned to the National Archives and reviewed prior to the creation of the National Declassification Center in 2010.” The proof, however, will be in the pudding; specifically, the NDC will need to end its page-level “pass/fail” declassification review process of these documents to ensure their release to the public, followed by the declassification of historic documents at the presidential libraries, “the bulk of [whose documents] are being declassified at a glacial pace due to lack of resources, apparent lack of urgency, and the wasteful equity referral re-review system.”
The Plan’s commitment to improving email preservation under the Capstone approach is also notable, but will only be effective in increasing transparency if agencies are actually made accountable for determining and preserving their emails that are “deemed appropriate for preservation.”
The NAP’s FOIA commitments are less encouraging. The Plan’s FOIA modernization promises focus on building a consolidated online FOIA service, which was promised in the Second National Action Plan, and not delivered. Of greater concern is the accessibility promises surrounding Section 508 of the Rehabilitation Act, which requires that people with disabilities have comparable access to information as people without disabilities. Agencies often complain that making documents 508 compliant, and posting 508-compliant FOIA requested documents on their websites, is too burdensome, and the NAP commitment to developing universally-designed software codes to address accessibility issues may delay agencies compliance with posting these documents online. Hopefully the drafters of the NAP will soon explain why and how this will not be the case.
The Director of National Intelligence released a transparency implementation plan this week that “establishes guidelines for increasing public disclosure of information by and about U.S. intelligence agencies.” The plan does not include any specific commitments or establish any timeframes for implementing the plan, but it “has the potential to provide new grounds to challenge unnecessary secrecy and to advance a corresponding ‘cultural reform’ in the intelligence community.” Of note, the plan instructs agencies to “consider the public interest to the maximum extent feasible when making classification determinations.” Steven Aftergood notes on his blog Secrecy News that:
This is a remarkable statement that goes beyond any requirement in existing classification policy. In particular, President Obama’s 2009 executive order 13526 on classification does not include the public interest as a factor in original classification decisions at all.
The new plan dutifully states that it does not “modify or supersede” executive order 13526. But it does in fact present a different classification construct, or at least a different emphasis. As the plan says, it “reinforces Executive Order 13526, which governs classification standards, while also guiding the IC to consider the public interest to the maximum extent feasible in conducting declassification reviews in order to make as much information available as possible while protecting intelligence information.”
Archive FOIA Project Director Nate Jones noted in an interview with Federal News Radio that while the plan is a positive step, it does not address classified information or the larger problem of whether or not the intelligence community should classify data in the first place. “In the past, [the IC] has needlessly classified information that has been of public interest. This plan, Jones said, does not address that problem and only facilitates the release of information that is declassified.” Jones gave the example of two National Security Agency documents about the mysterious 1961 death of UN Secretary General Dag Hammarskjold, requested by the United Nations, National Security Archive, and others, that the NSA bafflingly still refuses to release, citing harm to US national security.
The Senate “overwhelmingly” passed CISA – the Cybersecurity Information Sharing Act of 2015 – this week over concerns from open government groups, including the National Security Archive, and the technology sector. Senator Patrick Leahy’s (D-Vt.) amendment, which would have addressed CISA’s sweeping FOIA exemptions by striking the new “b(3) exemption” from the bill, failed 37-59-4, and Senator Al Franken’s (D-Mn) amendment, which would have narrowed the bill’s definition of a “cybersecurity threat”, failed 35-60-5. Troublingly, despite its impact on the FOIA, the bill was not considered by the Judiciary Committee, which has primary jurisdiction of the FOIA, and was instead “considered in a closed markup of the Senate Intelligence Committee.”
Invoices obtained thanks to a FOIA request show that the IRS purchased Stingray cellphone surveillance devices, bringing the total federal agencies known to use the device up to 13. The instruments are most likely used by the IRS’ criminal investigation division, which is increasingly working with the FBI and other agencies on aggressive drug cases. Obtaining the powerful devices, which mimic cell phone towers and can place a cellphone’s location, “require[s] only a low-level court order called a PEN register, also known as a ‘trap and trace’, to grant permission for their use” – making it likely that the number of federal agencies using the devices will not stay capped at 13.
A report issued by the Justice Department inspector general found that eight of the fourteen Drug Enforcement Administration agents involved in a prostitution scandal received bonuses ranging from $1,500 to $32,000, in clear violation of agency policy. More troubling, a DEA internal affairs log released under the FOIA earlier this month shows that agents routinely keep jobs – to say nothing of receiving bonuses – despite serious misconduct. Out of 50 instances where the DEA’s Board of Professional Conduct recommended an employee be fired, only 13 were actually terminated (and in some instances agents were reinstated by the federal Merit Systems Protection Board).
U.S. District Court judge Gladys Kessler has shot down the government’s efforts to withhold videos of Guantanamo detainees being force-fed, noting in her nine-page opinion that “What the government is really saying is that its classification system trumps the decisions of the federal courts as to the public’s access to official court records.” The case stems from the Defense Department’s May 2014 admission that it had video recordings of force-feeding Guantanamo detainees in the wake of the detainees’ accusations that the US was manipulating data on inmates’ hunger strikes, including how many times inmates are subjected to force feedings to keep strike numbers artificially low. The court initially ordered the government to turn over the 34 videotapes last May. It’s worth noting that Kessler also ruled last November that the military does not need to modify the way it force-feeds detainees, even though one, Abi Wa’el Dhiab, argued in court that the technique was tortuous.
A federal appeals court has dropped the ACLU’s lawsuit arguing that the National Security Agency’s mass surveillance is unconstitutional because the suit relied on “the subjective fear of surveillance.” The court cyclically ruled that the ACLU’s claims were subjective “because the NSA did not admit to having collected any of the information it was alleged to have collected.” Judge TS Ellis III – who dismissed a 2006 case brought by a German man claiming the CIA abducted and tortured him as part of its “extraordinary rendition program” on the grounds that the trial would risk national security – wrote that the ACLU’s difficulty in proving illegal spying had occurred “comes with the territory.”
The newly released Soviet “War Scare” report – previously classified “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON” and published recently after a 12-year fight by the National Security Archive – reveals that the 1983 War Scare was real. According to the President’s Foreign Intelligence Advisory Board (PFIAB), the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during the 1983 NATO nuclear release exercise, Able Archer 83. This newly declassified PFIAB document provides the strongest evidence to date that the danger of the War Scare was real, as the only study written with access to all US intelligence files on US/NATO actions and the Soviet response in the fall of 1983.
This week’s #tbt document pick is chosen with the return of Johannes Vermeer’s “Woman in Blue Reading a Letter” to the Smithsonian’s National Gallery of Art (its previous showing in 1995 was interrupted by a government shutdown). This week’s #tbt pick is a list of all the artwork acquired by the Smithsonian Institute in 2011, released thanks to a FOIA request.
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A FOIA request filed by Archivist Jeffrey Richelson has revealed the first full organization chart for the CIA’s National Clandestine Service (NCS) – the clandestine arm of the CIA with “the national authority for the coordination, de-confliction, and evaluation of clandestine operations across the Intelligence Community of the United States.”
Richelson filed the FOIA request shortly after CIA director John Brennan’s March 2015 announcement that the agency would undergo an extensive restructuring intended to eliminate “seams” in coverage (as a result of the reorganization, the NCS is now named the Directorate of Operations).
Previous charts of the NCS had been heavily redacted, and this is the first look at what the actual NCS structure looked like before the March 2015 reorganization. The FOIA release shows that the NCS offices listed alphabetically are the: Africa Division; Central Eurasia Division; Clandestine Information Staff; Community HUMINT; Counterintelligence Center; Counterproliferation Center; Counterterrorism Center; Crime and Narcotics Center; East Asia Division; Global Development Center; Human Resources Staff; Intelligence and Foreign Liaison; Information Operations Center; Iran Operations Center; Latin America Division; National Resources Division; Near East Division; National Resettlement Operations Center; Operations and Resources Management Staff; Policy Coordination Staff; Special Activities Center; South Asia Division; Technology Management Office; Tradecraft and Training Division.
(FOIA tip: Org charts are useful not only for understanding the shifting bureaucratic structure of departments, but they can help requesters and FOIA officers narrow the offices most likely to have documents responsive to a particular request.)
Brennan noted in his March reorganization announcement that, “The overhaul is designed to foster deeper collaboration and an intensified focus on a range of security issues and threats, replacing long-standing divisions that cover the Middle East, Africa and other regions with hybrid ‘mission centers’ modeled on the CIA’s Counterterrorism Center” (the CTC is the unit that ballooned after the 9/11 attacks and “became a paramilitary entity with its own fleet of armed drones”).
The reorganization, which went live earlier this month, creates 10 new centers that agency officials liken to the Pentagon’s establishment of operation centers like CENTCOM and AFRICOM. Six of the CIA’s new centers have a regional focus – Africa, East Asia and Pacific, Europe and Eurasia, the Near East, South and Central Asia, and the Western Hemisphere – and four have a mission focus — counterintelligence, counterterrorism, global issues, and weapons and counterproliferation.
The most notable aspect of the CIA’s reorganization, however, is that it significantly expands the agency’s focus on cyber security with the establishment of the Directorate of Digital Innovation (DDI), “responsible for missions ranging from cyber-espionage to the security of the CIA’s internal e-mail.” The DDI “absorb[s] existing entities including the Open Source Center, which monitors Twitter and other social media sites for intelligence on such adversaries as the Islamic State, as well as the Information Operations Center, a secret organization that handles missions including cyber-penetrations and sabotage and is now the second-largest center at the CIA.”
Critics of the CTC model argue that the approach focuses too much on short-term objectives. Brennan, however, says that with the reorganization, the CIA “cover[s] the entire universe, regionally and functionally, and so something that’s going on in the world falls into one of those buckets.”
The Good, the Bad, and the Ugly: OGIS Challenges FEMA’s “Still Interested” Letters, Bad CISA Bill Taken up in Senate, and Drone Leaks Fill Official Disclosure Void: FRINFORMSUM 10/22/2015
The National Security Archive and other open government groups have repeatedly drawn attention to agencies’ use of “still interested” letters, which agencies send requesters – often after years of silence on the agency’s part – to determine if the requester is still interested in the request being processed. The Archive has also requested assistance from the FOIA ombuds office, OGIS, on the creeping use of these letters. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester within an arbitrarily short amount of time, the agency will summarily close the request despite the fact that there is nothing in the FOIA itself that allows an agency to do so if it does not receive a response from a “still interested” letter.
While the Department of Justice’s Office of Information Policy (OIP) issued new guidance on these letters in July stating that agencies must provide requesters a reasonable amount of time to respond to the query (30 days at a minimum), the Federal Emergency Management Agency recently threatened to close out a two-year-old Cause of Action FOIA request if no response to their “still interested” letter was received after only 7 working days. OGIS “brought this instance of FEMA’s non-compliance with OIP’s new guidance to the attention of the Department of Homeland Security’s (DHS) Chief FOIA Officer, Karen Neuman. [OGIS] also suggested that DHS update its policy on the use of still interest letter to reflect OIP’s new guidance on the time they need to afford requesters when such letters are used.”
OGIS recently issued a good review of FEMA’s FOIA program, available here, which addresses the agency’s use of “still interested” letters, among other problems. OGIS will follow up on the status of its FEMA recommendations in January 2016, but it remains to be seen whether there will be any punishments or further action taken if FEMA ignores OGIS’ recommendations, on “sill interested” letters or otherwise.
The Senate will vote on CISA – the Cybersecurity Information Sharing Act of 2015 – this week, a “privacy invasive surveillance bill that must be stopped.” Frighteningly, the bill adds a new statutory exemption which would be unnecessarily broad, redundant, and could have unintended consequences. Moreover, all potential exemptions to FOIA should be enacted only after full and fair consideration by the Judiciary Committee. As the Electronic Frontier Foundation notes in its call to action against the bill, CISA also “would grant companies more power to obtain ‘threat’ information (for example, from private communications of users) and disclose that data to the government without a warrant—including sending data to the National Security Agency. It also gives companies broad immunity to spy on—and potentially even launch countermeasures against—innocent users.” EFF’s helpful, easy to fill out “write your congressperson” link is available here.
The ACLU filed its principal appeals brief in the FOIA lawsuit ACLU v. CIA this week, seeking the disclosure of 1) legal memos regarding the CIA’s use of drones and 2) the drone’s “summary strike data.” The lawsuit is the second chapter in a legal FOIA battle that began in 2010 when the ACLU filed a FOIA request with the CIA seeking “a release of official documents detailing when, where, and against whom the U.S. considers itself authorized to conduct drone strikes, as well as information illustrating how the attacks are consistent with international law.” The 2010 FOIA prompted a Glomar response from the CIA, neither confirming or denying the existence of a lethal targeted killing program despite numerous public officials’ reference to the program. The ACLU sued over the CIA’s Glomar response, and a three-judge panel in the D.C. Circuit ruled in 2013 that, “the CIA was asking it to accept a “fiction of deniability that no reasonable person would regard as plausible.” The panel ordered the CIA to process the ACLU’s FOIA request and to justify any withholdings to the district court.
The ACLU filed a second, narrowed FOIA request after the 2013 ruling, which is the subject of the current lawsuit, to which the CIA responded that it “had located a dozen final legal memoranda (one of which the government made public in redacted form), and ‘thousands of classified intelligence products responsive’” – all of which the CIA argued were exempt under the FOIA. In its appeals brief, the ACLU notes that the CIA has failed to demonstrate that the facts underlying the legal memoranda are classified and that the legal analysis can only be withheld if they are inexplicably intertwined with classified facts (such segregability was achieved, for example, when the DOJ’s published of the memo authorizing the killing of Anwar al-Aulaqi), and that the drone strike data is not protected under the FOIA’s sources and methods exemption.
Days before the ACLU filed its brief The Intercept published a series of stories on the drone campaign that were buoyed by leaked official documents. The ACLU’s Jameel Jaffer argued, “that whistleblowers like this would be less necessary — and probably less common, too — if the government were complying with the Freedom of Information Act. In passing that Act, Congress intended to guarantee the public access to information about government conduct while also protecting information whose disclosure would truly endanger national security. In practice, though, the government routinely withholds information that the FOIA requires it to disclose. On the rare occasion when courts enforce the FOIA over the government’s objections, the government often manages to delay release of information by months or years, and the public gets access to information only long after it most needs it.”
The Government Accountability Office – which is not subject to FOIA but “will usually entertain requests for records anyway” – recently published a list of titles of its restricted reports completed after September 30, 2014, “that have not been publicly released because they contain classified information or controlled unclassified information.” The list is hosted on a new website intended to inform members of congress and the public, but it will not publish classified titles or reports that focus on specific intelligence agencies. As Steven Aftergood of Secrecy News notes, “A listing of GAO restricted report titles from 1971-2011 was obtained and published by GovernmentAttic.org, which also obtained copies of the first page of each GAO report issued prior to 1972 that remains classified.”
A Veterans Affairs inspector general report has found the VA hospital in Phoenix “did little to respond to a severe staffing shortage as recently as April 2015” – long after a national scandal over “fudged” wait times erupted. The IG report found that hospital staff instead “canceled appointments for 3,200 urology patients, some of them for crucial follow-up tests, and never rescheduled them.” The IG report found that the lapse in care resulted in at least seven deaths, and recommends that the hospital ensure it is staffed adequately “to guarantee timely care.”
In 2013, shortly after Edward Snowden’s first revelations about the National Security Agency’s bulk domestic surveillance were published, NSA director Keith Alexander asked a hackers convention in Las Vegas what the agency could do to better protect Americans’ privacy and civil liberties. The solicitation was also shared on the NSA’s website, which directed people to email their ideas to the NSA. Vice News’ Jason Leopold filed a FOIA request with the NSA for the emails it received. And the NSA complied, releasing a grand total of 14 suggestions – most either not germane or technologically impossible. Credit to the NSA for releasing the innocuous documents – after only a two-year wait.
Graduate students working on any aspect of the Cold War interested in participating in the 2016 International Graduate Conference on the Cold War should submit their papers by January 24, 2016. More information on the Cold War Conference can be found here.
This week’s #tbt pick is chosen with Unredacted’s 6th birthday in mind, and is this blog’s very first post. In the last six years we’ve published over 700 blogs and received nearly 1.3 million views. Thanks for your continued support, and happy birthday to us!
Another DOJ Spy Case Unravels, No “Back Door” Key to Encrypted Data for FBI, and Much More: FRINFORMSUM 10/15/2015
The Justice Department’s espionage investigation into career diplomat Robin L. Raphel is quickly fizzling, according to officials close to the investigation, likely leaving the DOJ to decide whether or not to prosecute Raphel “for the far less serious charge of keeping classified information in her home.” The unraveling of the spying case is following an unnerving pattern; the DOJ dropped charges against Temple University physicist Xiaoxing Xi, accused of sharing superconductor technology with China, last month, and dropped all charges against government hydrologist Sherry Chen in May. The investigation into Raphel began last year after officials eavesdropped on a call between Raphel – who has been integral to shaping foreign policy towards Pakistan for decades – and a Pakistani official, which seemed to indicate that she “was passing American secrets to Pakistan.”
The Raphel also case highlights the lack of consistent charges brought against government employees that have – intentionally or not – mishandled classified information. Bill Clinton’s National Security adviser Sandy Berger stole documents from NARA and pleaded guilty to a misdemeanor; David Petraeus shared highly classified information with mistress and biographer Paula Broadwell and (over strenuous objections from the FBI) pleaded guilty to a misdemeanor; former Attorney General Alberto R. Gonzales took classified information on wiretapping home with him and was never charged; and FBI counterterrorism specialist John O’Neill “lost a briefcase full of government secrets in a Florida hotel” and was never charged.
The 3rd U.S. Circuit Court of Appeals has reinstated a 2012 lawsuit accusing the New York Police Department of civil rights violations for its spying on Muslims. A lower court ruled last year that, “police did not violate the rights of Muslims by routinely putting some people and businesses under surveillance in an effort to prevent terrorism.” The appeals court disagreed, ruling that “there is standing to complain and which present constitutional concerns that must be addressed and, if true, redressed.” Last April the NYPD shut down its Demographics Unit, the branch responsible for the surveillance, after reporting that the unit spied on Muslim neighborhoods and designated entire mosques “terrorism enterprises” caused an uproar. The NYPD’s use of the “terrorism enterprises” label allowed the unit to collect the license plate numbers of every car in mosque parking lots, videotape worshipers, and record sermons using hidden microphones. The program was the brainchild of lawyer Lawrence Sanchez who worked for the NYPD while on the CIA payroll, began in 2003, and “never generated a lead.”
The Obama administration has decided that it is not possible to give law enforcement access to encrypted communications “without also creating an opening that China, Russia, cybercriminals and terrorists could exploit.” Law enforcement agencies, led by the FBI, have previously lobbied that Apple, Google, and other groups providing encrypted technology provide a “back door” that would enable the government to view the encrypted data. With the administration’s decision, “investigators will have to hope they find other ways to get what they need, from data stored in the cloud in unencrypted form or transmitted over phone lines, which are covered by a law that affects telecommunications providers but not the technology giants.”
Chelsea Manning, the former military intelligence analyst currently serving a 35-year sentence for leaking over 700,000 government documents to WikiLeaks, is suing the FBI for the files it complied during its WikiLeaks investigation. Last year the bureau denied her FOIA request for the records, “claiming they may be relevant to a pending or prospective law-enforcement proceeding. Manning argues that her 2013 court martial should render the exemption moot, since any further prosecution of her in federal court would constitute double jeopardy, barred by the Constitution.”
In the first legal proceedings reliant on the Senate Intelligence Committee’s report on the CIA’s torture program, two US detainees and the family of a third who died in custody are suing the psychologists who designed the program, James Mitchell and John “Bruce” Jessen. Mitchell and Jessen, who had no interrogation experience, earned $80 million “propos[ing] a pseudo-scientific theory of countering resistance that justified the use of torture” and used the detainees – who were never charged – as an “opportunity to test (their) ‘learned helplessness theory.’”
Steve Aftergood recently highlighted the latest DOD security clearance numbers, which were presented in the latest quarterly report on Insider Threat and Security Clearance Reform. According to the figures the DOD’s security-cleared population is now 3.8 million, down 17.4% from two years ago. Aftergood notes, “Moreover, only 2.2 million of the 3.8 million cleared DoD personnel are actually ‘in access,’ meaning that they have current access to classified information. So further significant reductions in clearances would seem to be readily achievable by shedding those who are not ‘in access.’” The Navy also updated its guidance for its own Insider Threat Program, calling for a reduction of privileged users with unusually broad access to IT systems and data “and, therefore, could pose a higher risk of insider threat.”
Silk.co datajournalist Alice Corona has posted an interesting article shedding light on almost 300 patents filed by the National Security Agency. The NSA’s patents are a special breed of patent, never expiring and only revealed to the public if someone else files an identical patent, in which case the NSA’s patent is published by the US Patent and Trademark Office. Corona culled the USPTO data to compile databases of “200 NSA patents publicly granted to the NSA and published on USPTO,” and “78 NSA patents reported by Foreign Policy that didn’t show up when querying USPTO.” The patents include algorithms that identify topics and summarize large amounts of text, geo-locating methods, and an ornamental design of a game board.
According to documents personally delivered by Secretary of State John Kerry to Chilean president Michelle Bachelet last week, Chile’s intelligence service assassinated exiled critic Orlando Letelier with a car bomb in 1976 on “direct orders” from Chilean dictator Augusto Pinochet. A secret CIA memo prepared for President Reagan in 1987 concluded that there was “convincing evidence” that Chilean dictator Augusto Pinochet “personally ordered his intelligence chief to carry out the murder” of exiled critic Orlando Letelier in Washington D.C. “Pinochet decided to stonewall on the US investigation to hide his involvement,” the CIA review also noted, and as part of the cover-up considered “even the elimination of his former intelligence chief,” DINA director Manuel Contreras, who had overseen the assassination plot. The Archive filed a Freedom of Information Act petition to secure the declassification of the CIA assessment and the raw intelligence reports it was based on. “This document is clearly the holy grail of the Letelier-Moffitt case,” said Peter Kornbluh who directs the Archive’s Chile Documentation Project. Kornbluh called on the agency “to release this document to complete the Obama administration’s special declassification project on Chile.”
Declassified documents published by the Archive this week show internal State Department debates over whether or not to enforce “red lines” over Pakistan’s nuclear activities, and concerns over an Indian “pre-emptive strike.” The posting “explores important divisions within the U.S. government over Pakistani nuclear proliferation as it played out against the backdrop of the war in Afghanistan, exposing some difficult and controversial trade-offs in support of U.S. foreign policy interests. At the same time, the documents open a fascinating window into official attempts to manage outside scrutiny of a sensitive U.S. policy by one of America’s hardest-hitting investigative reporters.”
This week’s #tbt pick is chosen with the German television series, Deutschland 83, dramatization of the Able Archer Nuclear War Scare in mind. Archive FOIA Project Director Nate Jones has –through extensive research and years of targeted declassification requests–curated the most comprehensive collection of Able Archer material currently available. This collection includes a slide (above) from the unclassified September 9, 1983, commander airlift forces briefing that shows the expansive “footprint” of the Autumn Forge war games – the names of which, like “Brave Guy,” “Quantum Jump,” and “Northern Wedding,” have provided the titles for every Deutschland 83 episode to date.
A version of this article originally appeared in The Federalist.
The National Declassification Center (NDC), governed by the National Archives and Records Administration (NARA), has the potential to become President Obama’s largest, longest-lasting, and most important transparency initiative. The NDC has made important strides over the past six years, but important steps remain to ensure that the Center actually fulfills its mission to “release all we can, and protect what we must.”
According to the most recently available public figures, the NDC has “successfully” reviewed 352 million pages of classified records since 2010. Of these, 222 million pages have completed the NDC’s declassification review but have not completed NARA’s boxing and processing procedures—and possibly another Department of Energy review. Of the remaining 130 million pages that the NDC has reviewed, only 77 million pages (just 59 percent) were actually declassified. The remaining 53 million pages were returned to their sensitive compartmented information facilities, where they will await re-review at some future point.
This 59-percent release rate is troublingly low. A comparison with government-wide Mandatory Declassification Review (MDR) request figures reveals that documents requested under MDR are released to the public in whole or in part over 94 percent of the time. The MDR release rate would be even higher if the processing included only documents 25 years old or older, as the NDC does.
The primary reason for the NDC’s unacceptable rate of censorship is its use of a page-level “pass/fail” declassification review process. As the Public Interest Declassification Board (PIDB), the government declassification watchdog, recently explained, “a single word in a record determined to require continued classification beyond 25 years will cause the entire record to ‘fail.’ This process, originally designed by agencies to conserve limited resources, actually does the opposite.” Instead of promoting declassification, this “page by page” shortcut shoves these historic documents back into the vaults (still classified) until a requester requests another “wasteful, expensive” re-review. It also appears to directly contradict the NDC’s mission to “release all we can.”
At an April 2015 public forum on the NDC’s prioritization process hosted by the National Archives, members of the public strongly reiterated that any other reforms are secondary to the need to end page-level “pass/fail review,” which will lift the NDC’s declassification rate to the much more acceptable government declassification rate of 94 percent.
While the NDC has not yet ended “pass/fail review,” soon after the April meeting, the Center took the important step of listing the titles of record series processed for declassification—but not yet publicly available—on its website so that users can know what the NDC has processed. Even better, the NDC now institutes “indexing on demand” wherein researchers can request access to these previously unavailable records and—if they have been declassified—view them within days.
Also promisingly, the NDC is currently embarking on other reforms to improve its efficiency. Another major criticism of the NDC in the PIDB report was that the NDC relies on the wasteful equity referral and consultation re-review process, wherein multiple reviewers from multiple agencies (such as the CIA, NSA, and State Department) are allowed to re-review the same document multiple times. “Clinging to manually-intensive processes diverts increasing dwindling resources,” the PIDB writes, “There must be an understanding and agreement that the current practice of having one, two or more persons conduct a laborious page-by-page declassification assessment for each record under review is an unsustainable practice.“
President Obama also envisioned an end to this process at the NDC. The president instructed the NDC that “further referrals of these records are not required except for those containing information that would clearly and demonstrably reveal [confidential human sources or key WMD design concepts].” Previous large declassification review projects have also shown that a “one set of eyes–one decision” review is possible, effective, and desirable. Both the JFK Assassination Records Review Board and (to a lesser extent) the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group have shown that declassifiers can effectively be unleashed from the bonds of mandated equity re-review.
Thankfully, if belatedly, the National Declassification Center is beginning to slowly reduce equity re-reviews. Now, after agencies are alerted by the NDC about documents that they may have “equity interest” in, agencies are given a hard deadline of one year to review. If they do not review the documents within that period, agencies will lose their ability to claim an “equity,” and the NDC will use its authority for release. While this reform still falls short of the “one document, one review” ideal espoused by the PIDB, President Obama, and other advocates, it is a step in the right direction of increased declassification efficiency and increased NDC authority. Hopefully more steps will follow.
The NDC also reports that it is improving its methods to prioritize which series of records are scheduled for declassification. Researchers of the 77 million pages declassified so far have described them as “low hanging fruit.” Indeed, one early NDC report stated that just one percent of all documents in the backlog were “high interest, easy to process.” This means “high interest documents were very likely to be withheld under ‘pass/fail’ review.”
While some have warned of the potential danger of damaging archival provenance by selection of prioritized series (“Swiss cheese declassification”)—and it would be a critical mistake to corrupt the provenance of record series—series-level prioritization will ensure that the NDC’s resources are going to the documents most in demand and that will be most viewed by the public.
Perhaps the best candidates for series-level declassification by the NDC are the records held by NARA’s presidential libraries, the bulk of which are being declassified at a glacial pace due to lack of resources, apparent lack of urgency, and the wasteful equity referral re-review system.
After presidential records, the NDC should consider the declassification of records from principal policy makers, including records of the Secretary of State, Secretary of Defense, Chairman and Joint Chiefs of Staff, and the director of the Arms Control and Disarmament Agency. Because policy makers impact a broad range of issues, declassification of their records will meet a wide variety of researcher interests in terms of geographic and topical subject areas.
The National Declassification Center also has the important opportunity to gain public support and demonstrate its declassification clout by using its authority to declassify the remaining 1,171 distinct documents related to the John F. Kennedy assassination held by the National Archives whose release to the public was postponed until as late as 2017.
Despite criticisms of the National Declassification Center’s low release rate and inability to declassify high-interest documents, it is heartening to see one of President Obama’s most important transparency initiatives continue to improve. Archivists, researchers, historians, and public access advocates must work to ensure that it is preserved—and funded—into the next administration and beyond. If the NDC improves the speed, efficiency, quality, and quantity of its declassification reviews, it will make it all the easier to advocate for.
Finally, the Verdict of History On Pinochet’s Role in an Act of Terrorism
When the U.S. Secretary of State John Kerry met with President Bachelet on Monday, October 5, he engaged in an important act of what I call “declassified diplomacy.” He gave her a pen drive on which was stored 1000 pages of once TOP SECRET U.S. national security documents relating to Pinochet’s role in an act of terrorism in the capital city of the United States—the 1976 assassination by car bomb of Orlando Letelier and his colleague, Ronni Karpen Moffitt.
In a rather extraordinary act of diplomatic collaboration both the Chilean foreign ministry and the U.S. Department of State are posting them on their websites for all U.S. and Chilean citizens, and indeed the entire world community, to read and evaluate.
These records are among the most sensitive and secret in the holdings of the CIA, FBI, Defense and State Departments, because they shed light on the worst pre-9/11 act of international terrorism in Washington D.C. Had these documents been declassified at the time they were written in the aftermath of the car-bombing, they might have resulted in the indictment of the dictator himself.
Indeed, in a now declassified report to President Ronald Reagan, titled “Pinochet and the Letelier-Moffitt Murders: Implications for US Policy,” his own secretary of state George Shultz wondered whether Pinochet should be indicted in the U.S. for the car-bomb assassinations. The CIA had “convincing evidence,” Shultz reported to the president, that Pinochet had “personally ordered” his secret police chief, Manuel Contreras, to assassinate Orlando Letelier in Washington D.C. Shultz called Pinochet’s role in the car-bombing “a blatant example of a chief of state’s direct involvement in an act of state terrorism, one that is particularly disturbing both because it occurred in our capital and since his government is generally considered to be friendly.”
Pinochet managed to escape legal accountability as an international terrorist. But almost 40 years after that heinous crime, this form of documentary evidence remains vital for the verdict of history on his role.
The genesis of this unique collection dates back to the time of General Pinochet’s arrest in London in 1998, when the families and key agencies in Washington, including the Institute for Policy Studies where Letelier and Moffitt worked and my organization–the National Security Archive–pressed the Clinton Administration to re-open a formal investigation into Pinochet’s personal role in the car-bombing assassination of Orlando Letelier and Ronni Karpen Moffitt, and his efforts to hide his regime’s culpability. Our argument to the Clinton White House was that the United States had stronger legal reason to prosecute Pinochet than did Spain, and that he should be extradited to Washington to stand trial for the murders of Letelier and Moffitt.
U.S. Attorney General Janet Reno actually approved an FBI/Justice Department inquiry; indeed, in April/May 2000 a team of U.S. government investigators were in Santiago working with the Chilean PDI on this case. They eventually concluded, in a still secret report, that Pinochet should be indicted. But by that time, Clinton had come to the end of his tenure and George W. Bush had been elected. The Bush administration refused to pursue the prosecution of Pinochet, even after a major terrorist attack on September 11, 2001, made the fight against terrorism the President’s number one priority.
The investigation into Pinochet’s role had one unforeseen consequence: it resulted in important documents being withheld from the Clinton Administration’s special declassification project on Chile. That project resulted in the centralization, review, and declassification of 23,000 CIA, State Department, Defense Department, White House and FBI records. Among those documents were hundreds of records implicating Pinochet personally in the Letelier-Moffitt assassinations. But instead of being released along with the thousands of other records, these documents were withheld as potential evidence for the investigation.
An internal report on the special declassification obtained by my office states: “some 250 documents related to the Letelier/Moffitt case will be withheld for further review by DOJ prosecutors as part of a renewed effort to investigate the case.”
For the sake of truth and justice, these 250 documents tying Pinochet to an act of international terrorism in Washington D.C. were among the most important in the secret archives of the United States. After Pinochet died, my organization, the National Security Archive, attempted to obtain the declassification of these records, without success.
It has taken until now for all the stars to align to make this important declassification possible. With the reelection of Michelle Bachelet, Chile had key diplomats, among them Canciller Heraldo Munoz, and Ambassador Juan Gabriel Valdes (who was working with Orlando Letelier in Washington D.C. at the time of his assassination) who had a personal commitment to this advancing the cause of justice in this atrocity. Inside the Obama administration were key policy makers who understood the value of “declassified diplomacy”—for the families of the victims, for the appropriate use of U.S. documentation to advance the cause of human rights, and for the simple sake of history. They proved to be very receptive to a formal initiative earlier this year (with the strategic support of the National Security Archive) to obtain this documentation.
Secretary Kerry’s trip to Santiago this week provided an opportunity to turn over the records that have been recovered so far to the Chilean government and make them public.
More documents relating to Augusto Pinochet that will be made available to Chile in the near future. Moreover, this positive and successful effort at “declassified diplomacy” also creates a useful and important precedent for the future release of still-secret U.S. documents relating to cases that remain judicially unresolved: among them the case of disappeared U.S. citizen Boris Weisfeiler, the death of former president Eduardo Frei, as well as the origins and activities of Operation Condor which facilitated the assassination of Orlando Letelier and Ronni Moffitt.
Pinochet will never stand trial for this atrocity and the thousands of others he committed. But this special declassification on the Letelier-Moffitt case dramatically demonstrates how important U.S. government documents can be—in the court of history where the ultimate public verdict can be rendered.
EEOC’s Vacant FOIA Reading Room, Upcoming FOIA Advisory Committee Meeting, and Much More: FRINFORMSUM 10/8/2015
The Equal Employment Opportunity Commission (EEOC) recently announced the launch of its new FOIA portal, FOIAXpress, which “will speed up the processing of FOIA requests by allowing EEOC staff and FOIA requesters the ability to electronically exchange pertinent documents.” FOIAXpress replaces the agency’s in-house FOIA Tracking System and will allow requesters to monitor the status of their FOIA requests and appeals. The EEOC, which receives an estimated 18,000 FOIA requests a year, was designated an “E-Delinquent” in the National Security Archive’s latest E-FOIA Audit, which assessed agencies’ compliance with FOIA’s requirements for posting requested records online in electronic reading rooms, among other rubrics. The Audit found that the EEOC earned its E-demerit “by only maintaining a physical FOIA library, not even an Electronic Reading Room per the 1996 E FOIA requirements, making it impossible for the public to view previously requested records.” This gives the EEOC’s new FOIA portal, which also maintains an online FOIA Library, some much needed potential. The portal’s FOIA library, however, is currently unpopulated. For the EEOC to earn a better grade in online FOIA compliance, it will need to maintain a commitment to populating the portal’s FOIA library with FOIA-released documents, as well as proactive disclosure of documents likely to be of public interest –not just purchase new FOIA software.
The National Security Archive joined ten other open government and accountability organizations in submitting comments on the proposed Department of Homeland Security (DHS) FOIA regulations. As OpenTheGovernment.org notes in a recent posting, “The letter expresses concerns that certain provisions of the proposed regulations could hinder the FOIA process, and provides recommendations on how the new provisions can go further to ensure greater access to public interest information.” The comments emphasize the need for DHS FOIA regulations to “conform with the Attorney General’s guidance on the presumption of openness.”
The FOIA Advisory Committee’s next meeting will be held on October 20. The Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration, consists of ten government and ten non-governmental FOIA experts – including the Archive’s FOIA Project Director Nate Jones – and previously identified proactive disclosure, fee issues, and oversight and accountability as their primary focus areas. Despite the Committee’s charge to help “modernize” the FOIA, its latest meetings have not been live streamed. So to see the meeting live, you must attend in person. Video will be posted online after the meeting’s conclusion.
Just Security’s Steve Vladeck recently highlighted USA Today‘s Brad Heath’s discovery that, in denying his FOIA request to the Justice Department for any OLC memos relating to the applicability of the Authorization for the Use of Military Force to uses of force against ISIL, the DOJ cited FOIA’s exemption 5 – the deliberative process exemption – rather than the national security exemption. Vladeck notes that the denial will likely be litigated, and reiterates that in January 2014 the D.C. Circuit’s decision in Electronic Frontier Foundation v. Department of Justice “took a rather expansive view of Exemption 5 as applied to OLC memos.”
A State Department email, released in a batch of Hillary Clinton’s emails, shows the Department “planted” anti-WikiLeaks interview questions for CBS’ 60 Minutes to ask Julian Assange during a 2011 interview. The email is from former State Department spokesman PJ Crowley and notes, “60 Minutes assures me that they raised a number of questions and concerns we planted with them during the course of the interview. We will be prepared to respond to the narrative Assange presents during the program.” Crowley resigned from his position a few weeks later after criticizing the treatment of Chelsea Manning, at that time locked in solitary confinement for her leak of documents to Assange’s organization.
The fallout from Hillary Clinton’s sole use of a personal email address and server while secretary of state continue to mount this week. The FBI has expanded its probe – the one it can neither confirm nor deny the existence of – of the security of Hillary Clinton’s private email server to a second technology company, Datto, which was charged with providing backup emails for Clinton’s email accounts beginning in May 2013. Datto “expressed concerns over the summer that the system was inadequately protected and vulnerable to hackers,” but its recommendation to upgrade the security on the backup systems was rejected by Platte River, the company managing Clinton’s account. A spokesman for Platte River said, “It’s not that we ignored them, but the FBI had told us not to change or adjust anything.”
Judicial Watch, in only one of nearly 40 ongoing FOIA lawsuits connected to Clinton’s email use, is pressing for the State Department’s “Undersecretary for Management Patrick Kennedy to appear in court to explain who greenlighted Clinton’s private server and who kept it running.” In yet another case brought by Judicial Watch, a federal judge declined the group’s request that the court ask Clinton to hand over any copies of the 31,000 emails Clinton deemed personal and deleted. District Judge Reggie Walton said, “I just don’t see what my authority under FOIA would be,” going on to note that, “It seems to me, having not used State Department devices … it would be difficult … for me to conclude… that the information contained on her private server … is information that the State Department possessed.”
The European Court of Justice this week “struck down an international agreement that allowed companies to move digital information like people’s web search histories and social media updates between the European Union and the United States.” The court found the agreement flawed because it granted the US government too much authority to access Europeans’ online information. The ruling comes after the Director of National Intelligence’s General Counsel, Robert Litt, penned an op-ed for the Financial Times in which he argued that the US does not indiscriminately survey European’s private data. Of PRISM, one of the National Security Agency’s (NSA) bulk surveillance programs revealed by former NSA contractor Edward Snowden, Litt said, “Prism is focused and reasonable. It does not involve ‘mass’ and ‘unrestricted’ collection of data.”
The Pentagon, thanks to a FOIA request, recently released 82 pages of records on contamination on the US’s military base in Okinawa, believed to be “the first time such comprehensive records regarding U.S. military contamination in Japan have been made public.” The documents – which date from the 1970s through the 1990s – reveal “mass deaths of sea life, burials of toxic chemicals and the possible exposure of base workers at U.S. Marine Corps Camp Kinser in Urasoe, Okinawa Prefecture. The documents also highlight the frustrations of the U.S. military as it struggles to tackle contamination in the face of previous inept cleanups and bureaucratic obstacles.”
The Century Foundation’s Barton Gellman has a terrific — if not depressing — posting on the effects universities forming relationships with the government to perform classified research has on scholarship. Gellman recounts a recent incident in which Purdue University scrubbed all references to a 90-minute presentation he made about the NSA and Edward Snowden for the university’s “Doom and Gloom” conference on the pretext that some of the slides contained material — that, while readily publicly available, is is still classified. After the incident Eugene Spafford, a Purdue professor, wrote Gellman: “We have a number of ‘junior security rangers’ on faculty & staff who tend to be ‘by the book.’ Unfortunately, once noted, that is something that cannot be unnoted.” Gellman notes, “Now the security apparatus claims jurisdiction over the campus (‘facility’) at large. The university finds itself ‘sanitizing’ a conference that has nothing to do with any government contract. Where does it stop? Suppose a professor wants to teach a network security course, or a student wants to write a foreign policy paper, that draws on the rich public record made available by Snowden and Chelsea Manning? Those cases will be hard to distinguish from mine.”
This week senior Archivist William Burr and Professor Jeffrey Kimball will be discussing their new book, Nixon’s Nuclear Specter – The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War, at an event hosted by the Wilson Center’s Cold War International History Project. In addition to an extensive use of declassified documents, the book draws on research in participant interviews “to unravel this intricate story of the October 1969 nuclear alert. [The authors] place it in the context of nuclear threat making and coercive diplomacy since 1945, the culture of the Bomb, intra-governmental dissent, domestic political pressures, the international nuclear taboo, and Vietnamese and Soviet actions and policies.”
A declassified cable from the US Embassy in Mexico City – obtained by the Archive under the FOIA – shows US Ambassador to Mexico Earl Anthony Wayne saying that “evidence of heavy-handed police tactics” was “strong and disconcerting” after a 2011 clash with student protestors from Ayotzinapa normal school left two youths and a gas station employee dead and several others wounded. The cable is the focus of an article published this week by the award-winning team of investigative journalists at Mexico’s Aristegui Noticias.
This week’s #tbt pick was inspired by an OGIS Twitter trivia question, which asked where the text of the original FOIA is kept. In response, former House legislative director Anthony Clark noted a little known piece of FOIA history – that the FOIA we think of as original was repealed before it became effective.