IG’s Want to Open Security Referral into State Department’s Handling of Clinton Records; Focus on Trees and Not Forest of FOIA/Classification Problems.
The inspectors general for the State Department and the intelligence community have asked the Department of Justice to open a security referral to determine if the Department of State inadvertently released Hillary Clinton emails that contained classified information. (The IGs did not ask the DOJ to launch a criminal inquiry “into whether sensitive government information was mishandled” as initially reported by the New York Times.) The IGs requested the review after determining five emails in the trove of tens of thousands Clinton turned over to the State Department contained information from five intelligence agencies that, while not marked classified at time they were on her server, were in fact “secret.” The request for a security referral, according to Secrecy News’ Steven Aftergood, “is a recipe for paralysis,” and the Archive’s Director Tom Blanton says, “The government would be better off dropping any classification claim, both as a matter of security, and of resources.”
State’s Under Secretary of State for Management, Patrick Kennedy, said in a June 29 memo that they were seeking the referral over concerns that Clinton’s personal account housed “hundreds of potentially classified emails.”
Clinton has maintained that none of the emails in her personal account were classified.
While Clinton undoubtedly should have taken measures to preserve her emails with the State Department (the Archive’s full analysis of her sole use of private email can be found here), the IG’s request for a security referral, and the likely retroactive classification of documents that would result, underpins broader problems of government-wide overclassification that ought to be at the fore of the debate.
Unredacted reported earlier this month on the State Department’s release of 3,000 pages (the first batch out of a total of 55,000 pages) of Clinton’s emails – at 9 PM on a Tuesday night, and the Department’s decision to ultimately redact portions of two dozen of them – even going out of its way to fully redact a 16-page speech Clinton gave to the Council of Foreign Relations in 2009 using the “withhold it because you want to” Exemption 5. The State Department hid this unclassified document in its entirety despite the incredibly high public interest in the records and Clinton’s expressed desire to see all of the emails released in full. Archive FOIA Project Director Nate Jones said at the time that using the oft-abused Exemption 5 to withhold this document is an “egregious waste of time and money.”
All of the redacted emails out of the first batch of releases are unclassified, and while “their contents were apparently not sensitive enough to national security at the time to have required a higher classification status” they must now, confoundingly, be redacted in part or in full.
What’s worse is that this “egregious waste of time and money” will balloon exponentially with a security referral. The Justice Department has yet to announce if they will open one, and hopefully they will decide in the negative.
In 2010 National Security Archive director Tom Blanton appeared before the House Judiciary Committee, providing testimony concerning the Espionage Act and whether it should be amended to prosecute Julian Assange and Chelsea Manning. Blanton showed the Committee estimates over the years of how much information gets classified that doesn’t deserve to be. Blanton noted that Ronald Reagan’s own executive secretary for the National Security Council said 90%, and that the Republican head of the 9/11 Commission who saw all the most recent Osama Bin Laden intelligence said that 75% of what he saw that was classified should not have been.
Need another example of overclassification? The latest report from the Information Security Oversight Office (ISOO), housed at the National Archives and responsible to the President for policy and oversight of the government-wide security classification system, showed that the Interagency Security Classification Appeals Panel (ISCAP) continues to overrule agency classification decisions in Mandatory Declassification Review appeals nearly 75% of the time.
Blanton noted in regards to Clinton during his Senate testimony earlier this year that, ironically, because of the State Department’s terrible electronic record keeping,1 Clinton’s use of a private “likely preserved more of her e-mails there than the State Department systems would have done had she exclusively used a state.gov account.” The public will likely get to see many more of them much sooner, too.
The DOJ should decide that it doesn’t make any sense to spend finite resources to retroactively classify emails that were in Clinton’s possession when, in all likelihood, there are no real secrets there, and the State Department and intelligence community officials should spend their own time and resources fixing systemic issues with their respective FOIA administrations rather than focusing on one felled tree in a forest of FOIA failures.
1. A 2015 Department of State OIG report found State’s e-mail archiving system, ironically named SMART, goes almost entirely unused. The report found that State Department “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.'” In 2011 State Department employees only created 61,156 record e-mails out of more than a billion e-mails sent. In other words, roughly .006% of DOS e-mails were captured electronically.↩
FOIA Oversight Reports, Possible Security Referral over Clinton Emails, and Much More: FRINFORMSUM 7/31/2015
The National Security Archive recently updated its listing of previously released reports on agencies’ compliance with the FOIA with more than two dozen various Inspector General reports. The Archive is publishing the reports in an effort to assist the FOIA Advisory Committee’s FOIA Oversight and Accountability Subcommittee, which Archive FOIA Project Director Nate Jones sits on, identify what current authorities for oversight exist, and areas where there are opportunities for additional oversight. The subcommittee continues to encourage members of the public to submit reports that the subcommittee might have missed, and help studying the content of the reports. Suggestions of additional documents and FOIA Oversight and Accountability strategies may be submitted to https://ogis.archives.gov/foia-advisory-committee/contact-us-submit-comments.htm.
Last week the New York Times erroneously reported that the inspectors general for the State Department and the intelligence community asked the Department of Justice to launch a criminal inquiry “into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.” The real story was that the IGs asked the DOJ to open a security referral to determine if the Department of State inadvertently released Clinton emails that contained classified information. The IGs requested the review after determining that five emails in the trove of tens of thousands Clinton turned over to the State Department contained information that five intelligence agencies claimed was “not marked classified at the time they were stored on her private server but that the contents were in fact ‘secret.’” The request for a security referral, according to Secrecy News’ Steven Aftergood, “is a recipe for paralysis,” and the Archive’s Director Tom Blanton says, “The government would be better off dropping any classification claim, both as a matter of security, and of resources.”
The Office of the Director of National Intelligence (ODNI) recently posted an official statement on the National Security Agency’s (NSA) retention of phone data collected under Section 215 of the USA Patriot Act. The statement follows the June passing of the USA Freedom Act, which, among other things, ended the NSA’s bulk collection of American phone records, instead ordering them to be stored with private phone companies that the NSA will need to obtain a court order to retrieve. After the law’s passage, “the Obama administration gained approval from the Foreign Intelligence Surveillance Court to keep the old bulk phone records program going” during the stipulated six month transition period. ODNI’s latest statement laid out that, pursuant to the USA Freedom Act, NSA analysts “will no longer be permitted to search a database holding five years of Americans’ domestic calling records after Nov. 29.” NSA technicians will be able to view the historic phone records for three additional months for “data integrity” purposes. Prior to this week’s announcement it remained unclear what the NSA would do with the database of historic phone records it had amassed before the program was upended.
In April the NSA declassified 52,000 pages of documents pertaining to the Friedman Collection, which concerns cryptographer William Friedman, arguably the founding father of the intelligence agency and the US’ scientific approach to code-breaking. The documents were subsequently scoured by the BBC, which reports that the documents shed light on American and British intelligence’s secret relationship with the leading Cold War encryption company, Crypto AG. Specifically, the documents reveal a secret relationship between Friedman and the founder of Crypto AG, Boris Hagelin – a relationship known as the “Boris Project.” The BBC reports that the NSA documents show Hagelin kept “the NSA and GCHQ informed about the technical specifications of different machines and which countries were buying which ones.” The BBC further notes, “In one document, Hagelin hints to Friedman he is going to be able ‘to supply certain customers’ with a specific machine which, Friedman notes, is of course “easier to solve than the new models.’”
The Department of Homeland Security (DHS) released documents in response to a FOIA request filed by The Intercept this week that show the department monitored the Black Lives Matter movement since former Ferguson, MO police officer Darren Wilson fatally shot African American teenager Michael Brown last year. Documents show “DHS circulated information on a nationwide series of silent vigils and a DHS-funded agency planned to monitor a funk music parade and a walk to end breast cancer in the nation’s capital,” begging obvious questions about whether or not this surveillance infringes on First Amendment rights. Last week Vice’s Jason Leopold reported, also thanks to documents obtained through the FOIA, that DHS attempted to preemptively stymie the release of any protest surveillance documents concerning the announcement of whether or not Wilson would be indicted because of concerns the documents would be requested under the FOIA.
The New York Times obtained three statements made by Joyce Mitchell – a former employee of New York’s Clinton Correctional Facility who pleaded guilty to helping two men escape from the prison – through the FOIA. (While not explicitly stated by the Times, the FOIA was likely filed with the New York State Department of Corrections.) The statements show that Mitchell did favors for one of the convict’s daughters, that she performed sexual acts with that same prisoner, and that she snuck “tools past guards for use in an audacious escape from a maximum-security prison.”
Over 100 pages of CIA contracting documents were turned over to Jason Leopold and Ryan Shapiro as part of a FOIA lawsuit. The documents show that the agency paid the contractor Centra Technology, Inc. more than $40 million “for administrative support and other tasks related to the Senate’s work [investigating the agency’s torture program]. Those tasks included compiling, reviewing, redacting, and then posting to a server set up by the contractor the more than 6 million pages of highly classified CIA cables and other documents about the torture program Senate Intelligence Committee staffers pored through during the course of their probe.” Senator Dianne Feinstein (D-Calif.) told Vice, “These documents confirm and offer context for what I said in December: CIA spent roughly $40 million in order to hamper the Senate Intelligence Committee’s report on the CIA detention and interrogation program, while the committee operated within its existing budget.”
A FOIA request for materials on Dick Cheney submitted by Colette Neirouz Hanna, the coordinating producer for the Kirk Documentary Group, recently won the release of never before seen photographs taken by Cheney’s staff photographer from 9/11. The photos show, among other subjects, “Cheney watching footage of the World Trade Center attack in his office. Other photos show Cheney and other senior staffers meeting in the President’s Emergency Operations Center, or the secure bunker deep underneath the White House.”
A 38-page Department of Defense review found “systemic problems with irradiation and testing procedures” for an Army laboratory’s handling of anthrax. The review was ordered after reports “that Dugway Proving Ground in Utah inadvertently shipped live samples of the deadly bacteria that reached at least 86 commercial and government laboratories in seven foreign countries, 20 U.S. states and the District of Columbia.” While the review determined serious problems with Dugway’s procedures, the root cause of the inadvertent distribution remains unknown.
Jonathan Pollard, a former Navy intelligence analyst convicted of spying for Israel, will be released after serving 30 years of a life-long prison sentence this November. Pollard’s supporters have long-petitioned successive presidents for Pollard’s release (Clinton only dropped the idea after CIA director George Tenet threatened to resign if he did), but the move remained strongly opposed by the intelligence community. Pollard is currently being released because, “At the time that Mr. Pollard was sentenced, federal law required that he be reviewed for parole after he had served 30 years of his life sentence.” A 2013 Archive posting details what secrets Israel asked Pollard to steal, and includes a declassified 1987 CIA damage assessment of Pollard’s spying. The CIA assessment notes the specific subjects Pollard’s Israeli handlers wanted information on – “primarily for nuclear, military and technical information on the Arab states, Pakistan, and the Soviet Union – not on the United States.” Late last year Pollard’s Israeli handler, former Mossad agent Rafi Eitan, revealed that Pollard had bungled a pre-arranged escape plan that would have delivered him safely to Israel; Pollard blew his escape when he diverted from the plan and went to the Israeli Embassy in Washington, D.C. seeking asylum, at which point Eitan ordered the embassy to kick Pollard out in an attempt to avoid further complications.
The House Committee on Government Oversight and Reform chair, Rep. Jason Chaffetz (R-Utah), who earlier this year told the Department of Justice’s Office of Information Policy (OIP) Director Melanie Pustay that she must be living in “la-la-land” if she thought FOIA was being properly implemented, informed the National Journal that he plans to have a committee vote on a strengthened FOIA bill in September. According to the Journal, the committee is looking to tighten the bipartisan bill, H.R. 653, by identifying “ways to make agencies face consequences for failing to comply with FOIA requests, and reduce the number of exemptions that agencies can use to justify withholding information.” The bill currently amends the FOIA in two key ways: it codifies both that agencies cannot use FOIA’s “withhold it because you want to” Exemption 5 to withhold information that is older than 25 years, and states that “records that embody the working law, effective policy, or the final decision of the agency” cannot be withheld under that same exemption.
Jim Holzer, the chief FOIA watchdog at the Department of Homeland Security, will take over as the head of the federal FOIA ombuds office, the Office of Government Information Services (OGIS) – and not a moment too soon. Prior to the announcement of Holzer’s appointment, which was made at this week’s Federal FOIA Advisory Committee meeting, the position for leading the small federal office, which is responsible for providing FOIA mediation and compliance services for the entire federal government, had been left vacant for six months. The Archive looks forward to continuing to work with the FOIA ombuds office under Holzer’s direction.
FreedomInfo.org’s Toby McIntosh recently posted an excellent article examining one of the most controversial aspects of the recently announced “Release-to-One: Release-to-All” pilot project, namely whether or not “first requesters should get a priority look at the documents released before they are made available to the public.” Interviewing OIP director Pustay vie email, McIntosh reports that OIP has no position on whether or not to provide first-requesters with a lead time on FOIA releases, noting it is something OIP will be examining throughout the six-month pilot program. McIntosh notes that although sub-components of seven agencies are participating in the program, “Those in the pilot differ in what they post and how they do it,” begging broader questions about not only first-requester priority, but also how results of the study will be extrapolated government-wide.
Anticipating protests in response to the announcement of whether or not Ferguson, MO police officer Darren Wilson would be indicted in the shooting death of African American teenager Michael Brown last year, the Department of Homeland Security (DHS) worked on a surveillance plan to conduct of the protests. Vice’s Jason Leopold reports – thanks to over 700 heavily redacted pages he obtained in response to a FOIA request – that DHS attempted to preemptively stymie any protest surveillance documents’ release because of concerns they would be requested under the FOIA. Specifically, “an employee with DHS’s National Protection and Programs Directorate distributed an email on November 11, 2014 reminding personnel to mark all electronic communications ‘for official use only’ because of ‘recent events and FOIA requests.’” FOIA’d documents also show that the agency investigated claims that Muslims had “co-opted” the protests based on “intelligence” from Fox News reporting “on how the Council of American and Islamic Relations (CAIR) was trying to raise awareness about the 2009 shooting death of Luqman Ameen Abdullah, an imam at a Detroit mosque.” One document also shows that DHS officers were looking forward to reuniting with old colleagues in Ferguson and St. Louis, with one writing, “Looks like we are working together again,” and another, “Long time since [Hurricane] Katrina. LOL.”
President Obama’s national security adviser, Susan Rice, allegedly presented Secretary of Defense Ashton Carter with a “memo stating that he would have 30 days to make decisions on newly proposed transfers” of Guantanamo detainees at a cabinet-level “principals committee” meeting last week. Carter’s delay in transferring the detainees since taking office is prompting anxiety among the Obama administration, which wants to close the facility before the president leaves office in 18 months. Mr. Carter did not commit himself to the administration’s 30-day timeline.
US District Court Judge Richard Leon berated the State Department and its Justice Department lawyers over DOS’ handling of a 4-year-old Associated Press FOIA request last week. AP received no response from the State Department on its request, which sought records about former Secretary of State Hillary Clinton’s schedules and staffers, including Clinton Deputy Chief of Staff Huma Abedin, now vice chairman of Clinton’s presidential campaign, until filing suit. Judge Leon harangued the government’s representatives, saying “The State Department, for reasons known only to itself … has been, to say the least, recalcitrant in responding.” Leon also told DOJ lawyers that they were responding to questions about why AP’s request was being delayed because of State’s handling of Jason Leopold’s much more recent request for Clinton’s emails with “convoluted gobbledygook.”
Wired reported recently that a staggering 89% of all wiretaps are fueled by drug cases, an increase of 27% in the last 25 years, and a strong indicator of how the War on Drugs shapes government surveillance. Reporter Andy Greenberg notes “that constant swell in drug-focused wiretaps may help to explain the general increase in all American wiretaps. In total, the count of US state and federal wiretaps has jumped from 768 in 1989 to more than four times that number today. But take out those drug cases, and the collection of wiretaps of all other kinds increased only 29 percent in those 25 years, from 297 in the year 1989 to just 384 last year.” Greenberg reports that one of the reasons drug-related wiretaps far outpace others is the money they can generate: “a wiretap costs an average of $39,485 in 2014 according to the latest report—and unlike other types of crimes, those seizures mean that drug cases can pay for themselves.”
The biggest revelations from the newly-released Rosenberg grand jury testimony shows that Ethel’s brother, David Greenglass, lied about his sister’s involvement to conceal the minor role played by his wife, Ruth. The testimony was obtained thanks to a court order in case brought by the National Security Archive and a coalition of Historical and Archival Associations. The most important passages from Greenglass’ testimony are on page 12, in which he says, “My sister has never spoken to me about this subject,” and on page 30, where he states, “I never spoke to my sister about this at all.” Ruth Greenglass’ testimony, released in 2008, undermined the core charge against Ethel, “struck the keys, blow by blow, against her own country in the interest of the Soviets.” Of the Rosenberg case Brad Snyder says, “This historical import of the David Greenglass’s grand jury testimony is bigger than the guilt or innocence of Julius and Ethel Rosenberg. It is about how the American criminal justice system treats even the most despised and politically unpopular defendants. It is about the role of the Supreme Court in policing the behavior of government prosecutors.”
In a huge win for transparency and corporate accountability, Chiquita Brands International lost its bid to hide Colombia terror documents from the public (again) in a suit brought by the National Security Archive. Last week a federal appeals court in Washington, D.C., ruled that the US Securities and Exchange Commission (SEC) should release to the Archive 9,257 pages of records produced by Chiquita to the SEC as part of an investigation of the company’s illegal payments to a Colombian terrorist organization, the United Self-Defense Forces of Colombia (AUC), a group responsible for egregious acts of violence during Colombia’s civil war. In April 2011, the Archive published some 5,500 pages of Chiquita’s records released by the Department of Justice in response to similar FOIA requests. Those records revealed that Chiquita benefitted from its transactions with both AUC “paramilitary” groups and insurgents from the FARC and ELN guerrilla groups. The records call into question the Justice Department’s determination, spelled out in the 2007 plea deal, that there was no evidence of a quid pro quo with the illegal groups.
The Archive’s latest posting commemorates the 40th anniversary of the Church Committee investigation of CIA abuses, and details how that probe foreshadowed post-9/11 executive/congressional battles. Documents posted this week show, among other things, that: the White House of President Gerald R. Ford, spearheaded by deputy assistant to the president Richard Cheney, quickly seized control of the administration’s response to the congressional investigations; lists of records to which the Church Committee requested access for its investigation were reviewed in detail and Mr. Cheney ultimately decided whether to provide them in each case; and CIA accommodation measures were explicitly designed to keep Church committee investigators away from its most important records.
This week’s #tbt document pick is chosen with the recent Chiquita ruling in mind, and is one of the most startling documents released to the Archive in April 2011. This week’s #tbt pick is a January 4, 1994, Chiquita memo indicating that leftist guerrillas provided security at some of Chiquita’s plantations. The general manager of Chiquita operations in Turbó told company attorneys that guerrillas were “used to supply security personnel at the various farms.”
By Michael Barclay
On July 11, 1970, the United States Air Force launched an ATHENA V-123-D rocket from Green River Launch Complex in Utah. While its intended target was the White Sands Missile Range in New Mexico, it impacted “180-200 miles south of the Mexican border,” according to a recently released memorandum sent from the desk of Henry Kissinger, then serving as National Security Advisor to President Nixon. The document cites “abnormal re-entry into the atmosphere” as the reason why the rocket landed in the Mapimi desert, a “sparsely populated” area in the Northeast corner of the state of Durango. While the three-paragraph memorandum may seem as though the mishap was nothing to be concerned about (noting the Mexican Government’s “willingness to grant clearance and assist in any search efforts”), the cleanup effort was long, costly, and included the construction of a road through the Mapimi desert to excavate hundreds of tons of soil from the impact site. The scale of the cleanup was due to the fact that the rocket was carrying two small vials of cobalt 57, an isotope used to enhance radioactive fallout with the intention of contaminating large areas of land (commonly referred to as a “salted bomb”).
According to a 1971 report from the Office of Air Force History, the ATHENA rocket tests at Green River were part of the Advanced Ballistic Reentry System (ABRES) program. The program “developed and tested promising reentry vehicles and penetration aid devices for use on present and future ballistic missile systems.” While the Atlas test flights under the same program “gathered valuable reentry vehicle performance data” that contributed to the development of multiple independently targetable reentry vehicles (MIRV), the Athena launch program was “suspended in July 1968 after three consecutive flight failures.” But the report notes that after its reactivation in November of the same year, the program yielded “thirteen successful Athena launches” that “carried a variety of payloads” and aided the development of “reentry vehicles [that] altered their ballistic paths upon command.“ But despite these advances, “ABRES program funding dropped from $147.7 million to $105 million” between 1966 and 1969, which forced the Air Force “to postpone development of the improved Athena H booster.” Since MIRV research and development was the program’s main concern at this time, “test range operations—deeply cut in fiscal year 1970…would have to be slashed even more than before.” Combined with the Athena program’s flight record prior to the 1970 test range budget cuts, the ATHENA rocket misfire that occurred at Green River on July 11th of the same year doesn’t seem like as much of an unexpected anomaly as Kissinger’s memorandum to President Nixon makes it sound.
In fact, there seems to be a good amount of evidence pointing to the fact that the ramifications of a misfired rocket impacting foreign soil were not only considered prior to the construction of Green River Launch Complex, but were taken seriously enough to halt launch plans at other facilities for fear of triggering an international incident. On August 11, 1963, a memorandum entitled “Report on Peacetime Launch From ICBM Operational Sites” was sent to the Joint Chiefs of Staff suggesting that despite “the limited record of past performance of [the Air Force’s] liquid–fueled missiles…we do not have high confidence that such tests would be completely successful.” The report goes on to note that “public acceptance of overflight by test shots in the vicinity of our national ranges has been encouraging and the public is willing to accept some risk if such tests appear necessary in the national interest.”
Several months later, an Air Force General responded to claims of political and safety concerns by noting that “system reliability can no longer be considered a limiting factor” to rigorous ICBM testing. But within a matter of days, another Air Force memorandum reiterated that the “concern of possible international and political implications” resulting from overflight “remain[ed] as the major constraint against launching Minuteman missiles from existing operational sites at [the] time.” While this may seem like an unnecessary concern if the Air Force were to take proper precautions in the construction of its launch sites and testing ranges, the description of an overflight make the author’s fears seem well warranted. In reference to the launching of Minuteman missiles from Malstrom Air Force Base in Montana, he notes that “examination of the planned flight profile indicated first stage impact just short of the Canadian border; second stage in the Hudson Bay; with re-entry vehicle impact in the North Atlantic area off the coast of Greenland. Since a malfunction similar to the failure of thrust termination control experienced on the first Minuteman Operational Test launch could result in overflight of Canada and Western Europe with flight termination in Africa, the political aspect [is] of much greater concern.” Clearly, this was a scenario worth being concerned about, which is why these tests were eventually fired from Vandenberg Air Force Base in Lompoc, California.
At the very least, these internal Air Force communications beg the question of why so many ICBM tests were conducted with insufficient funding after their safety and political concerns were made so abundantly clear. A National Intelligence Estimate of the USSR’s nuclear arsenal, signed by former CIA Director Richard Helms on October 20, 1966, sheds a fair bit of light on why military strategists were so anxious to begin ICBM testing despite multiple experts advising that overflight was a real and legitimate concern. Their urgency was fueled by protracted concerns of the Soviet Union matching the United States’ nuclear force. The 1966 CIA report voiced concerns that not only would the USSR “have reached approximate numerical parity with the currently scheduled US force of ground-based ICBM launchers” by 1971, but that this quantitative parity would allow the Soviets to develop a nuclear arsenal that would be qualitatively superior.1 In this frame of mind, the deployment of “multiple, independently-guided re-entry vehicles (MIRV) and other suborbital or fractional-orbital long-range ICBMs” that boast “a considerable improvement…in re-entry technology” seemed not only inevitable, but swiftly approaching.2 This explanation may seem like somewhat of an oversimplification, but the 131 ATHENA rocket test flights launched from Green River between February 4, 1964, and September 17, 1971, stand as an undeniable testament to the lengths that American policy makers and military strategists were willing to go to maintain a nuclear advantage over the Soviet Union. The fact that these launches happened despite multiple test failures, a dwindling budget, and the looming possibility of an international political incident is further confirmation of the extent to which nuclear force parity had become central to American foreign policy by the beginning of the 1970’s.
While it could easily be written off as a military and scientific blunder, the ATHENA V-123-D launch on July 11, 1970, has a very rich back story that has a lot to teach us about the ways in which genuine diplomatic, security, and logisitical concerns can be swept under the rug in the face of myopic policymaking. In this sense, it seems almost fitting that the area of the Mapimi desert that was impacted by the rocket has become much less a symbol of the Cold War arms race than it is a magnet for paranormal and extraterrestrial folklore. Commonly referred to as the Mapimi Silent Zone, locals have latched on to the legends of radio silence and alien sightings as a means to boost tourism in an area that would have had none otherwise. While it is referenced in several news articles and Wikipedia entries, the ATHENA misfire that occurred on July 1970 rarely outshines the reports of UFO’s and paranormal activity that it provides a scandalous backstory for.
1. Soviet Capabilities for Strategic Attack, Top Secret, National Intelligence Estimate, Excised Copy, NIE 11-8-66, October 20, 1966. p. 37.↩
2. Ibid. pp. 37, 40.↩
Open Gov Groups Still Interested in OGIS Reviewing Agency Practice of Sending “Still Interested?” Letters; DHS’s Mobile FOIA App Misses the Mark, and Much More: FRINFORMSUM 7/9/2015
This week the Department of Justice’s Office of Information Policy (OIP), tasked with ensuring government-wide FOIA compliance, issued new guidance on agencies issuance of “still interested?” letters. These are letters agencies send requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. The OIP guidance is, on its face, pretty good: it requires agencies to limit the instances in which they send such letters; it requires that agencies provide requesters a reasonable amount of time to respond to the query (30 days at a minimum); and it mandates that requesters should not be disadvantaged if they miss the letter’s deadline by only a “reasonable” amount.
The overall premise behind the “still interested” letters, however, is 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. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted. While the “still interested” letters can be useful, any guidance that condones an agency closing a FOIA request without legal authority provided by the FOIA is misguided and should be revised.
The silence from the Office of Government Information and Services (OGIS), the FOIA ombuds office, on this issue is of additional concern. In response to several Archive requests for OGIS assistance concerning agencies’ practice of issuing such letters (and in some instance only allowing a requester 10 days to respond before closing the request), OGIS informed our office in November 2014 that “On October 30, 2014, a group of organizations including the National Security Archive contacted OGIS about agencies’ practice of sending still interested letters, citing EPA, among other agencies. As you are aware, OGIS’s review team determined that it will take a close look at this matter.” Eight months later OGIS has yet to take any action on this issue, and OIP has taken advantage of OGIS’s silence and issued guidance condoning the legality of a practice that has no legal basis in the FOIA.
The Department of Homeland Security (DHS) launched an app to submit FOIA requests this week – perhaps a little too quickly. According to Huffington Post Technology and Science editor, Alex Howard, “Instead of launching a better way for the public to make and track requests or teaming up with the Department of Justice to fund work on a universal FOIA request feature at the government’s openFOIA website, the federal agency that receives and responds to the largest number of FOIA requests in the country actually made the experience of submitting one worse.” Among the app’s sticking points are: the microscopic font; the keyboard obscures the text of the FOIA request being drafted; and the fact that the app doesn’t retain a user’s contact information. Additionally, “The app’s permissions, at least on the Android store, state that it requires access to your approximate location.” This is according to Reporters Committee for Freedom of the Press’ Adam Marshall, who went on to say, “There is absolutely zero reason for the DHS to have access to the location of my phone, and I’m not going to install an app from the federal government that allows for that functionality. FOIA is designed to ensure that the public knows what the government is up to, not the other way around.”
DHS FOIA funds would have been much better used to make its current FOIA website responsive to mobile browsers rather than creating a clunky, hard to use, unneeded app.
Last week the Senate Intelligence Committee approved legislation that would require social media sites to report content posted by suspected terrorists, although it doesn’t require the companies to remove the content. While the committee claims the bill, which doesn’t require companies to monitor their sites if they do not already do so, is a “pretty low burden,” it’s received criticism for being technically difficult – in part because “Social media sites generally do not monitor their sites for terrorism or any other content except child porn” – and vague in its wording. The legislation is contained in the 2016 intelligence authorization act and has not yet been voted on by the Senate.
A hack of the for-hire hacking company Hacking Team has revealed that the FBI, the DEA, and the Army have all bought the Italian company’s controversial software that allows “users to take remote control of suspects’ computers, recording their calls, emails, keystrokes and even activating their cameras.” The Intercept reported this week that emails, financial reports, and other Hacking Team documents show that the FBI’s Remote Operations Unit has been using the software since 2011, and that the CIA, the Pentagon’s Criminal Investigative Service, the New York Police Department, and Immigration and Customs Enforcement were all communicating with Hacking Team about potentially purchasing their software. Hacking Team reported that it had lost control of the controversial software in wake of the hack, saying “it believed anyone could now deploy its RCS software ‘against any target of their choice.’”
Multiple Somali and African Union officials have confirmed the existence of a secretive US drone base operating out of Kismayo, Somalia. These officials allege that, “a team of special operators from the Joint Special Operations Command, the elite U.S. military organization famous for killing Osama bin Laden, flies drones and carries out other counterterrorism activities” from the Somali base. The US has yet to acknowledge operating a drone base on Somali soil. The CIA’s “substantial presence” in Mogadishu was also recently reported by The Nation, which detailed the agency’s training of a clandestine Somali commando force called “Shield.”
A United Nations (UN) panel has found that new evidence concerning the September 1961 death of UN Secretary General Dag Hammarskjold, whose plane was shot down over what is now Zambia, warrants further investigation. A 2013 UN inquiry uncovered “persuasive evidence that the aircraft was subjected to some form of attack or threat as it circled to land.” As a result, in 2014 Sweden, Hammarskjold’s home country, appealed to all UN member states to disclose unpublished documents on Hammarskjold’s death. This appeal was likely “a reference aimed largely at securing the declassification of American and British files, particularly intercepts thought to have been made at the time by the National Security Agency.” The NSA continues to withhold two of three 50-year-old documents requested by the Archive regarding the incident on national security grounds. Despite the new evidence and calls for further investigation into the crash, the NSA holds that “files classified as top secret from the National Security Agency would not be released,” a sentiment echoed by the British.
David E. Hoffman’s “The Billion Dollar Spy: A True Story of Cold War Espionage and Betrayal,” published this week, relies on 944 declassified CIA cables to help tell the story of Adolf Tolkachev, once the CIA’s most valued and successful spy in the USSR. Tolkachev, an engineer and specialist in airborne radar, provided the CIA with “documents and drawings had unlocked the secrets of Soviet radars and weapons research years into the future. He had smuggled circuit boards and blueprints out of his military laboratory.” Tolkachev spied for the CIA from 1979 through 1985, before ultimately being compromised, arrested, and executed. A selection of the declassified CIA cables on Tolkachev are available at davidehoffman.com.
Declassified documents recently published by the National Security Archive shed new light on the 2012 creation of the DOD’s Defense Clandestine Service, the expansion of Army and Air Force HUMINT operations since 2002, the work of the Iraq Survey Group, and much more. Read the whole story on the evolution of the Pentagon’s spy units through the Obama administration here.
This week’s #tbt document pick is chosen with the possible re-opening of the Dag Hammarskjold investigation in mind. This week’s pick is a 1994 CIA History Staff document by Nicholas Cullather entitled, “Operation PBSUCCESS: The United States and Guatemala, 1952- 1954,” and is a narrative history of the CIA’s role in planning, organizing and executing the coup that toppled President Jacobo Arbenz Guzmán on June 27, 1954. One portion of the document (page 85) describes international condemnation of the plan, noting that UN Secretary General Dag Hammarskjold charged that “the United States was completely at variance with the (UN) Charter.”
Dozens of Unclassified Clinton Emails Redacted in State Department Release, “Massive Cache” of Photos from CIA “Black Sites” Discovered, and Much More: FRINFORMSUM 7/2/2015
The State Department released 3,000 pages of emails from Hillary Clinton’s tenure as Secretary of State at 9 PM on Tuesday night, and ultimately redacted portions of two dozen emails – even going out of its way to fully redact a 16-page speech Clinton gave to the Council of Foreign Relations in 2009 using the “withhold it because you want to” Exemption 5. The State Department hid this unclassified document in its entirety despite the incredibly high public interest in the records and Clinton’s expressed desire to see all of the emails released in full. Archive FOIA Project Director Nate Jones said using the oft-abused Exemption 5 to withhold this document is an “egregious waste of time and money.” All of the redacted emails are unclassified, and while “their contents were apparently not sensitive enough to national security at the time to have required a higher classification status” they must now, confoundingly, be redacted in part or in full.
In anticipation of the State Department’s release, open government advocates argued it would be important to see how much the emails were redacted pursuant to both the”withhold it because you want to” Exemption 5 and the national security exemption. Jones told Vice News’ Jason Leopold prior to the release that the amount withheld “should be very little. The emails were unclassified, so if will be eyebrow-raising if any more content is retroactively classified by State.” Unfortunately, a few eyebrows have indeed been raised.
Most of the released documents focus on day-to-day scheduling conflicts and Clinton navigating the new administration. None concern Benghazi (Clinton previously provided the House Benghazi Committee a separate batch of 847 documents, which call into question the extent of her reliance on adviser Sidney Blumenthal).
A State Department spokesman, John Kirby, insisted that in spite of its late hour, the timing of the release was not intended to minimize media coverage; rather, it was a result of a federal judge’s instructions that the Department release the first batch of the 55,000 pages of documents Hillary Clinton returned to the State Department by Tuesday. The judge had additionally set the State Department the task of releasing seven percent of the 55,000 pages for the first release, a mark the Department fell nearly one thousand pages short of.
The State Department expects to finish releasing the Clinton emails by January 26, 2016.
The discovery of the existence of a “massive cache” of photos – nearly 14,000 – of the CIA’s “black site” prisons, primarily in Poland, Afghanistan, and Thailand, is expected to complicate ongoing Guantanamo trials. The discovery was made while military prosecutors reviewed the Senate Intelligence Committee’s report on the CIA’s torture program and “learned there were more pictures available than those contained in the full report.” The defense attorneys for Guantanamo detainees Khalid Sheik Mohammed, Abd al-Rahim al-Nashiri, Abu Zubaydah, and Waleed bin Attash, said that they had yet to be informed about the existence of the photographs. Zubaydah’s attorney, Joe Margulies, said, “Why is it we are still learning about this stuff? Who knows what is still out there? What else is there? That’s what is appalling.”
CIA director John Brennan recently confirmed that despite the agency’s long-standing pledge to diversify its workplace, the CIA is failing at recruiting minorities and promoting minorities into senior executive positions. The CIA has lost ground recruiting black employees since 2004, despite increased recruitment from 1984 to 2004, and “Racial and ethnic minorities — defined by the CIA as anyone other than whites of European descent — comprise 23.9 percent of the entire workforce, but they are below 20 percent of the elite job categories of operations officer and intelligence analyst.” Most strikingly, the CIA’s senior executives are comprised of only 10.8 percent minorities. Brennan noted that although the agency has vowed to increase diversity before, “We’re not kidding. This is real, this time.”
Recorded Future, a company backed by the CIA’s venture capital arm In-Q-Tel, has found logins and passwords for 47 government agencies across the internet. According to reporting, Recorded Future, a social data mining and “threat intelligence” company, deployed software that scanned more than 680,000 web sites and found the credentials “in plain sight, on what are called paste sites such as Pastebin.” The Associated Press notes, “at least 12 agencies don’t require authentication beyond passwords to access their networks, so those agencies are vulnerable to espionage and cyberattacks.”
Even though the CIA has yet to respond to the National Security Archive’s 2014 FOIA request for information on its Osama bin Laden doll, codenamed “Devil Eyes,” a model was auctioned off by the Nate D. Sanders auction house last week. In June 2014 a Washington Post article revealed that the agency had plans to make the scary doll – whose face was designed to frighten children and painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings” – and to distribute them in Afghanistan or Pakistan. In response to our FOIA, the CIA said it was busy processing a similar request for another requester, and would notify us when processing was complete. So far not a word. The son of Donald Levine, however, a former executive at Hasbro who helped design the doll, auctioned off one of three known copies of the doll last week. Another doll sold last year for $11,879. Levine also helped create a board game called Snakes and Ladders, which features “comical” depictions of “prominent terror leaders such as Osama bin Laden and Saddam Hussein.”
There is a potential conflict brewing between the United States Court of Appeals for the Second Circuit and the Foreign Intelligence Surveillance Court (FISA). Earlier this week FISA ruled that the National Security Agency (NSA) may continue its bulk collection of domestic American phone records for the next six months – the timeline stipulated in the USA Freedom Act to allow agencies and phone companies to move to a new system wherein phone companies will store the records, not the government. The ACLU said in response to the FISA ruling, however, “that it would ask the United States Court of Appeals for the Second Circuit, which had ruled [May 7th] that the surveillance program was illegal, to issue an injunction to halt the program.” The Second Circuit stopped short of issuing an injunction halting the collection in May, instead deferring to the then-ongoing USA Freedom Act debate. Sen. Ron Wyden (D-Or.) condemned the FISA ruling, saying “I see no reason for the Executive Branch to restart bulk collection, even for a few months. This illegal dragnet surveillance violated Americans’ rights for fourteen years without making our country any safer.”
The Clinton Library has digitized a number of declassified document collections on topics including US-Russia relations, Iran, and Kosovo, and posted them to their website this week. Matthew Aid reported that among the releases, “There is also a special collection of documents about genocide in the former Yugoslavia, the war on terrorism, and a mildly interesting collection concerning Osama bin Laden.”
The National Security Archive and the Nuclear Proliferation International History Project (NPIHP) published documents this week that shed light on the step-by-step process by which the Eisenhower administration came to be concerned about the potential of the gas centrifuge – the same technology currently fueling US-Iranian negotiations. The records reveal that long before Iran’s nuclear enrichment capabilities became the center of international negotiations, the US tried to deny that same technology to any country that sought it, including Brazil in 1954. The documents also show how the administration reached the conclusion that secrecy and export controls were necessary, and sought an understanding on classification policy with the British, Germans, and Dutch.
The Archive also helped sponsor this week’s conference, “International Decision-Making in the Age of Genocide: Srebrenica 1993-1995” held at The Hague. In cooperation with The Hague Institute for Global Justice and United States Holocaust Memorial Museum, the “oral history” conference marking the 20th anniversary of the July 1995 Srebrenica massacre considered the international community’s role in the tragedy. Archive director Tom Blanton said of the event, “The archival documents allow us to look over the shoulders of the people who struggled with life-and-death decisions during the run-up to Srebrenica. We can get inside the private sessions of the UN Security Council and the heads of decision-makers in The Hague, London, Washington, Zagreb, Pale, and Sarajevo, in a way that was impossible just a few years ago.” An official transcript will be published following the conclusion of the conference.
This week’s #tbt document pick is chosen with the Freedom of Information Act’s upcoming 49th birthday in mind. Grudgingly signed on July 4, 1966, by LBJ, documents from the LBJ Library show that the President refused even to hold a formal ceremony for the FOIA, personally removed strong openness language from the press statement, and only agreed to approve the bill after the Justice Department –still in charge of “monitoring FOIA compliance”– suggested a signing statement that undercut the thrust of the law. Read the documents on LBJ’s reluctant signature here.
FACA Surveys, ICE’s “Egregious” FOIA Violations, the FBI’s Convoluted FOIA Search Process, and Much More: FRINFORMSUM 6/25/2015
The FOIA Advisory Committee’s subcommittees on both fees and oversight and accountability have each sent out surveys to learn more about their respective issues. The federal FOIA Ombudsman, OGIS, recently reported that the oversight and accountability subcommittee – which the Archive’s FOIA Project Director Nate Jones sits on – issued a survey to each federal agency’s FOIA public liaison (FPL), who are statutorily mandated to reduce FOIA delays, increase transparency, understand the status of FOIA requests and resolve FOIA disputes. While the role of the FPL is “described in an Executive Order (Executive Order 13392, Improving Organization Disclosure of Information) and legislation (the OPEN Government of Act of 2007), the Committee has observed that how FPLs work within a particular agency seems to vary widely.” The subcommittee hopes that the survey results will shed light on what actions FPLs take at individual agencies to fulfill their mandate. For its part, the fees subcommittee sent out a survey to determine how to cut down on both the frustration and the confusion surrounding the administration of FOIA fees. Both surveys are available here.
US District Chief Judge Marsha Pechman found that the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) egregiously violated the FOIA when it ignored Prison Legal News’ request for information on the telephone costs for immigrant detainees. ICE ignored two consecutive FOIA requests from the advocacy organization despite FOIA’s clear instruction that agency’s have 20 business days to respond to requests, absent clearly stated extenuating circumstances. Judge Pechman awarded Prison Legal News attorneys fees and costs for pursuing the lawsuit.
A FOIA lawsuit seeking FBI records related to the 1995 Oklahoma City bombing is shedding light on the FBI’s convoluted FOIA search process. According to the Reporter’s Committee for Freedom of the Press (RCFP), “The latest testimony from the Trentadue case shows that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records ‘systems’ that they need to specify in order for a comprehensive search to take place.” These systems include the Automated Case Support system (ACS), which searches the FBI’s Central Records System. The ACS itself is split into three parts: the Investigative Case Management system (ICM), the Electronic Case File (ECF), and the Universal Index (UNI). The RCFP notes that “the ICM is a case management tool for documents involved in an ongoing investigation. The ECF is broader and contains all FBI law enforcement documents uploaded to the CRS except for some aged documents, or documents not uploaded for unknown reasons. Importantly, the ECF searches the text of the documents themselves.” Because the FBI routinely acts in bad faith when responding to FOIA requests and does not search the majority of its records systems unless specifically asked, FOIA requests to the FBI should include language requesting the bureau search all components of the ACS: the ICM, the ECF, and the UNI.
A Foreign Intelligence Surveillance Court judge ruled this week that a public advocate is not needed in cases where “the legal question is relatively simple.” The ruling comes on the heels of the passing of the USA Freedom Act, which “directed that the court, which typically hears only the government’s side of surveillance cases, appoint ‘amicus curiae’ or a panel of technical experts to offer an alternative perspective in ‘novel’ or ‘significant’ cases.” The Cato Institute’s Julian Sanchez said of the ruling, “I’m a little worried. If the point is to ensure the court is hearing a different perspective, whether the [amicus provision] kicks in shouldn’t depend on whether an issue seems obvious before the court has heard any counter arguments.”
WikiLeaks released documents this week showing the National Security Agency (NSA) has spied on the last three French presidents. The documents detailing the snooping include “summaries of conversations between French officials on the global financial crisis, the future of the European Union, ties between [French President Francois] Hollande’s administration and German Chancellor Angela Merkel’s government.” The Intercept also reported this week that documents leaked by former NSA contractor Edward Snowden show that the NSA and its British counterpart, the GCHQ, tried to compromise anti-virus software to track users, and tracked the email traffic of anti-virus companies “for reports of new vulnerabilities and malware” as part of Project CAMBERDADA.
The Obama administration announced a change in its hostage policy this week, noting that the Department of Justice will not prosecute families who raise ransom money for Americans who have been taken hostage overseas. The change is announced as part of a larger overhaul to the US’s hostage policy, which has been criticized for being dysfunctional and disjointed. The overhaul does not include the appointment of a “hostage czar,” an idea that had been broached to lead the multi-agency response to hostage crises. Instead, the administration announced the creation of a “fusion cell” that will be housed at the FBI and report to the White House through the National Security Council.
While the Senate Intelligence Committee reported last year that US Bureau of Prisons (BOP) officials visited a secret CIA prison in Afghanistan, the BOP responded to an ACLU FOIA request stating that it had no documents on the trip. BOP’s response to the FOIA request is confounding, considering the SSCI reports that BOP officials were “wow’ed” by the tour, having “never been in a facility where individuals are so sensory deprived.” The ACLU appealed the denial, arguing that “It’s completely implausible, we’re talking about federal employees traveling to an active war zone, making an inspection of a detention facility, making recommendations and training employees of another federal agency.” The Bureau of Prisons, unlike law enforcement and intelligence agencies, does not have the authority to classify records.
A computer glitch that hit the State Department’s system for running security checks on foreign visitors has ground the issuing visas to a halt. The glitch, which is rooted in a post 9/11 security measure that runs automatic scans of biometric data, hit US embassies around the world, and the State Department says “it will take time to catch up with two weeks of backlog, built up at an average of 50,000 visa applications every day.” The State Department attempted to use a backup system for the checks after the problems with the main system were discovered, but found the backup system “damaged and unusable.”
Documents obtained through the FOIA by the Washington Post show that the DOD reprimanded the Army’s deputy commander for operations in the Middle East, Maj. Gen. Dana J.H. Pittard, for his “excessive involvement” in awarding a $492,000 contract to his West Point classmates. The reprimand was issued this February after the Army’s Inspector General conducted a three year investigation, spurred by a whistleblower’s allegations that the general had “abused his authority by awarding lucrative renewable energy contracts to his friends.”
NPR’s Caitlin Dickerson reported this week, relying on documents obtained by the FOIA and interviews, that the Army ran chemical experiments on WWII soldiers according to their race. The DOD declassified documents in 1993 revealing that it had exposed some 60,000 enlisted men to mustard gas and other chemical agents, but concealed that the tests were conducted by race. According to Dickerson, African-American, Japanese-American and Puerto Rican enlisted men served as proxies “so scientists could explore how mustard gas and other chemicals might affect” enemy troops. The white soldiers were used as scientific control groups. One of the documents won by FOIA that contributes to the reporting is a DOD report dated June 20, 1944, entitled, “Tests on the Sensitivity of Whites and NISEI to Mustard Gas and Lewisite (Including Tests for Allergic Sensitization to Mustard Gas Following Experimental Exposure).”
This week’s #tbt document pick is chosen with North Korea’s ongoing, historic drought and potential for increased food shortages in mind. This week’s #tbt pick is an October 2006 posting entitled, “North Korea’s Collapse? The End Is Near – Maybe.” The posting contains 19 FOIA-released documents, many of which are from the State Department’s Bureau of Intelligence and Research (INR), which attempt to answer how the food crisis of the mid-90s would affect North Korea politically and the rationale for supplying food aid.