DOD’s Got a Good FOIA Policy Chief but Will Renew Lobby for Bad New FOIA Exemption Anyway: FRINFORMSUM 1/7/2016
Defense Department Chief of FOIA Policy, Jim Hogan, has seen some incredible documents over the course of his 20-year-career reviewing and processing FOIA requests. He reviewed a WWII-era document signed by Hollywood star and Navy intelligence officer, Lieutenant Commander Douglas Fairbanks, Jr. He saw “papers signed by Lieutenant Colonel Colin Powell when he was a White House Fellow at OMB during the Nixon Administration.” And he sees public awareness of FOIA experiencing something of a Renaissance – which has its complications.
Hogan recently told MuckRock’s Mike Morisy, “I don’t know if the public quite really understands what [FOIA] means, how they can take advantage of it, and also, I think their expectations are, as you know, I make a FOIA request, I should be able to get this stuff within a few weeks.” This expectation – which is bolstered by the E-FOIA amendment’s requirement that agencies process FOIA requests in 20 working days – is bound to cause consternation; the average processing time for “processed perfected” complex FOIA requests across the DOD in FY 2014 was 97 days (the DIA takes 1,345 days on average, the NSA 425), and the average time for pending perfected requests is much higher – 408 days.
Hogan says of the delays – which are compounded by finite resources – “We action officers share the same frustrations that FOIA requesters do.” Hogan argues that making FOIA officers and other agency components aware of available technology that can help streamline FOIA processing is key to combating the current FOIA backlogs. Another key? Embracing the “release to one, release to all” pilot program, which the DOD is participating in under Hogan’s direction along with six other agencies. (Adam Marshall of Reporters Committee for the Freedom of the Press has published an excellent rundown of the pilot program here.)
While the public is fortunate that the DOD’s FOIA Policy team, which oversees one of the largest FOIA programs in the federal government, is committed to improving the quality of customers’ FOIA experience, it’s less fortunate that the DOD is gearing up again this year up to lobby for a new, unnecessary, and harmful FOIA exemption. Last year the agency unsuccessfully lobbied Congress to add a new exemption to the FOIA that would have allowed the DOD to “withhold information on military tactics, techniques, and procedures from release to the public” that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed. Steven Aftergood notes the proposed exemption “stops making sense where DoD ‘tactics, techniques and procedures’ are themselves the focus of appropriate public attention” – like interrogation techniques and offensive cyber operations that should be subject to vigorous public debate.
The DOD is also likely to re-introduce an amendment to nullify the 2011 Supreme Court decision in Milner v. Department of the Navy. The decision “significantly narrowed” the scope of FOIA’s Exemption 2, which concerns information related solely to the internal personnel rules and practices of an agency, and the DOD wants to “reinstate the pre-Milner status quo with its more expansive withholding authority.” The DOD cited Exemption 2 165 times agency-wide in FY2014; I would provide a point of comparison from 2010 or 2011, however the links to these DOD annual FOIA officer reports on the Department of Justice’s Office of Information Policy website are broken. Aftergood reports, “the proposed Milner amendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.”
The State Department Inspector General released a report today showing that the agency’s FOIA office gave an “inaccurate and incomplete” no-documents response to a FOIA request concerning Hillary Clinton’s email usage. In 2012, after learning EPA administrator Lisa Jackson used “an alias email at work with the name ‘Richard Windsor,’” Citizens for Responsibility and Ethics in Washington (CREW) filed a FOIA request for “records sufficient to show the number of email accounts of or associated with Secretary Hillary Rodham Clinton.” Troublingly, State’s FOIA office told CREW that it had no documents on the subject of their request, even though Cheryl Mills, Clinton’s Chief of Staff, knew both of Clinton’s personal email account and the FOIA request, and advised a close aide to keep an eye on it. The report also finds that the secretary’s office lacked written procedures for handling FOIA requests, that some requests lingered in a queue for more than 500 days without a reply, and that mistakes made while Clinton was in office were “part of a long-standing problem stretching back through previous administrations.”
The State Department released its latest batch of Hillary Clinton emails on New Years Eve. Among the 5,000 documents is a flowchart compiled by Clinton’s communications aide, Philippe Reines, about who can ride with Clinton in her limo. Is the Ambassador present tolerable? If so, then yes, the “Ambo” can go in the limo. While some might see the “hours” Reines spent getting the formatting for the chart just right as a waste of time, what he produced is “the key to the relationships the secretary has with her close aides.” The State Department has until the end of January to release the remainder of Clinton’s 30,000 emails.
Clinton joked on the campaign trail earlier this week that she would “get to the bottom” of investigating UFOs, likely exciting many UFO enthusiasts, and possibly even her campaign chair, John Podesta, who famously called for the declassification of all documents on aliens. Podesta was behind many of the Clinton administration’s important declassification decisions when he was Chief of Staff, including playing a role in E.O. 12958 that requires the declassification of most government documents over 25 years old. Unfortunately for many, Podesta tweeted that his “biggest failure of 2014: Once again not securing the #disclosure of the UFO files.” The government has, however released a number of documents on the Area 51 stealth facility in Nevada to the National Security Archive, including the first official acknowledgement of Area 51, which is contained in a CIA history of the U-2 spy plane.
The National Security Archive and the Project on Government Oversight’s FOIA fees survey is open for one more week only, so if you haven’t taken a few minutes to fill it out yet – please do! Doing so will provide a more representative view of FOIA fees for the government’s FOIA Advisory Committee, which recently distributed a similar survey – but only to federal FOIA processors. Now we need to hear from non-government FOIA stakeholders so that your views on FOIA fees can be cataloged and documented.
The Supreme Court will consider a petition for certiorari in EPIC’s FOIA lawsuit against DHS for information on its “wireless kill-switch” tomorrow. EPIC filed the petition with the Supreme Court in August 2015 after the U.S. Court of Appeals for the D.C. Circuit’s ruled DHS could “withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies.” EPIC is also challenging the interpretation of FOIA Exemption (7)(F), “which permits withholding of law enforcement information that, if released, ‘could reasonably be expected to endanger the life or physical safety of any individual.’” The FOIA request at the bottom of the case seeks information on “the 2011 Bay Area Rapid Transit (BART) disruption of all cellular service inside four San Francisco transit stations for three hours in order to suppress a mass public protest against a BART officer’s lethal shooting of a homeless man, Charles Hill.” DHS first told EPIC it had no documents responsive to their request, only providing EPIC with a heavily redacted version of SOP 303 after EPIC sued in district court.
This week’s #tbt pick is chosen with reporting that sailors aboard the USS Pueblo – an American SIGINT ship captured by North Korean forces on January 23, 1968, and the only commissioned US Navy ship still in foreign possession – have renewed hopes for compensation for their 11 months in captivity. The Pueblo’s capture was an intelligence breach of enormous proportions, and, followed by the downing of a US reconnaissance EC-121 plane over the Sea of Japan in 1969 by a North Korean MiG-17, encouraged the Nixon Administration to develop contingency plans that would allow the use of tactical nuclear weapons against Pyongyang. Sailors from the Pueblo are pushing for compensation in the wake of Congress awarding $4.4 million to each of the American hostages held for 444 days in Tehran, although some worry that a lack of awareness about the incident may hamper their efforts. A 2014 Archive posting co-authored by Archive senior fellow John Prados and author Jack Cheevers shows, among other things, that “A small committee secretly appointed by LBJ to get to the bottom of the Pueblo debacle criticized the planning and organization of the ship’s mission. But the committee’s blunt report, which was initially to be given to Congress, was instead ordered destroyed by Defense Secretary Clark Clifford.”
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It was my great pleasure to work on a special edition of Newsweek featuring documents declassified in 2015. The whole team was fantastic to work with and has done a great job producing a high quality edition that document hounds and novices alike will speedily turn the pages of. As the introduction to the edition states:
Americans take justifiable pride in having a government ‘of the people, by the people, for the people.’ But officials and bureaucrats sometimes carry out illegal or immoral acts, then hide the evidence in plain sight, burying it under a mound of public records. Fortunately, a group of dedicated patriots doggedly utilize one of the most powerful tools at their disposal –the Freedom of Information Act– to bring these misdeeds to light. Over the past 25 years, more than 10 million pages of previously classified documents from more than 200 agencies have been made public thanks to the efforts of a handful of individuals, who tirelessly comb through reams of documents and analyze the information they contain. Sometimes shocking, sometimes scandalous and occasionally strange, these are the secrets your government kept from you –out in the open for anyone curious to learn.
But beyond this excellent print edition, I wanted to publish my rough draft of the copy I provided for Newsweek to readers of Unredacted. First, because space constraints required much of the background to these fascinating declassified stories had to be cut; and second, so that our document hound readers can now click the links and read the entire featured documents themselves and see how they were presented by the “dedicated patriots” who actually filed the FOIAs and brought these government secrets into the public domain.
Again, the below is a rough draft so please treat it as such.
Spying on Black Lives Matter
The Department of Homeland Security has been routinely surveying the Black Lives Matter movement, according to documents released by the DHS in response to a Freedom of Information Act request. The redacted documents show that the DHS has been watching and providing minute-by-minute reports on protests by the movement, which began after retired Ferguson, MO police officer Darren Wilson fatally shot teenager Michael Brown. The documents show that the DHS, ostensibly created to protect the United States against terrorist attacks, is now monitoring First Amendment protected assemblies. Its Watch Desk regularly tracks Black Lives Matter social media hashtags on twitter, facebook, and vine, and has circulated near-real-time Google Maps updates of protesters’ movements. The documents show that DHS has also surveilled peaceful events in Washington D.C. such as a funk parade and the Avon Walk to End Breast Cancer.
Document mentioning Funk Parade and Breast Cancer Walk: https://assets.documentcloud.org/documents/2178942/10-2015-4-29-dc-hsema.pdf
Credit: George Joseph, The Intercept https://theintercept.com/2015/07/24/documents-show-department-homeland-security-monitoring-black-lives-matter-since-ferguson/
Petraeus and Broadwell Revealed
A US District Court Plea Agreement signed by the former Director of the CIA and Commander of CENTCOM, David Petraeus, confirms that he lied to FBI investigators about providing access to his classified “black books” to his biographer and mistress Paula Broadwell. Petraeus gave the “black books” – five by eight inch–notebooks filled with classified notes about “identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions,” and notes from National Security Council meetings and discussions with the President of the United States. Petraeus’s illegal disclosure of classified information was revealed after Broadwell became jealous of Petraeus’s relationship with Tampa socialite Jill Kelley and derided Kelly in anonymous emails to military officials. These emails sparked an FBI investigation that eventually led to Petraeus’s forced retirement and guilty plea for mishandling classified materials.
Best quotes on Page 9; Good quotes on pages 11 and 13; his “guilty signature” on page 15.
Inside Tom Brady’s Inbox
As part of the National Football League Players Association’s lawsuit that overturned Tom Brady’s 2015 suspension for allegedly deflating balls, Brady submitted over 1,000 pages of his personal emails (selected after a search for terms that could plausibly relate to deflating balls). No deflating ball turned up, but we learned that he wasn’t happy about having to pay $8,540 for a new pool cover (“why can’t we use the same cover we have on now?”). He also predicted he’d long outlast his rival Peyton Manning: “I’ve got another 7 or 8 years. He has 2. That’s the final chapter.” Once the email was made public, Brady texted an apology to Manning. Said Manning, “Everybody has been speculating on that for a long time, so I guess he’s joining the list.”
Documents: On pool cover: https://assets.documentcloud.org/documents/2202046/emails6.pdf pg 106/107
On Manning: https://assets.documentcloud.org/documents/2202050/emails8.pdf page 126
Credit: Boston Globe
The FBI’s Aerial Surveillance Program Uncovered
The FBI has a fleet of over 50 low-flying aircraft, registered to at least 13 fake companies which are used for “ongoing investigations,” usually without a judge’s approval. An Associated Press investigation uncovered the program, with planes registered to fake companies called “FVX Research, KQM Aviation, NBR Aviation, and PXW Services” and registered to PO Boxes in Bristow, Virginia – one of which is also a DOJ PO box. A Detroit News investigation followed one secret FBI Cessna as it repeatedly made nineteen identical slow, counterclockwise loops over Dearborn, Michigan. The planes contain high-tech cameras, and possibly “Sting Ray” cell phone tracking equipment.
Documents: http://registry.faa.gov/aircraftinquiry/MMS_results.aspx?Mmstxt=2072703&Statetxt=VA&conVal=0&PageNo=1 (Control F for “Bristow VA” for the lists of fake companies)
https://www.documentcloud.org/documents/2090186-fbi-surveillance-plane-documents.html (Registration documents with fake company.)
Video of Dearborn loop: http://bcove.me/3umncdon
Credit: Jack Gillum, Eileen Sullivan and Eric Tucker, Associated Press; Robert Snell, The Detroit News
FOIAed Dox Show Climate Change Denying Scientist Secretly Got $1.2 Million from Fossil Fuel Industry; Promised them “Deliverables”
For years, Wei-Hock Soon, a Scientist at the Harvard-Smithsonian Center for Astrophysics, has been an oft-cited scientist who denies that greenhouse gas emissions contribute to global warming, instead claiming that variations in the sun’s energy explain most global warming. But a recent FOIA release by the Smithsonian (a federal government institution covered by the Freedom of Information Act) shows that Soon received $1.2 million in funding from the fossil fuel industry over the past decade. Soon failed to cite this potential conflict of interest in his papers, appearing to violate the ethical guidelines of the journals which published his work in at least eight cases; he also described many of his papers, as well as his Congressional testimony, as “deliverables” to his funders.
Document: https://assets.documentcloud.org/documents/1672782/climate.pdf “deliverables” on page 11.
Credit for the FOIA: Greenpeace
DEA Agents Not Fired for Selling Drugs
Drug Enforcement Administration agents who sold drugs, attended “sex parties,” and committed other serious misdeeds were not fired, according to an internal affairs log released in response to a FOIA request. Since 2010, the DEA’s Board of Professional Conduct recommended that a DEA employee be fired in 50 instances. In only thirteen instances were the employees actually terminated –and even some of those were reinstated! The DEA did not fire agents who attended cartel-funded “sex parties” in Colombia. Nor were agents who lost firearms, committed fraud, drove while intoxicated, used drugs, or sold drugs.
Credit: Brad Heath and Meghan Hoyer, USA Today.
On January 7, 1975, DINA chief Manuel Contreras traveled to Washington D.C. for a secret meeting with the deputy director of the CIA, Vernon Walters. His real purpose, however, was to courier a one-page message from Augusto Pinochet to Henry Kissinger. “He came as a special envoy from President Pinochet with a message for you to be delivered through me,” Walters reported to Secretary of State Kissinger after meeting with Contreras for 45 minutes. Pinochet’s typed memo requested that the U.S. provide Chile with economic credits, and assistance, as well as tanks, ships, submarines, and electronic surveillance support to protect Chile from a perceived military threat from Peru. In his conversation with Walters, Contreras reported that DINA had “infiltrated a member into the Central Committee of the Chilean Communist Party,” and the regime had “completely dismantled” the armed resistance. With Kissinger planning a visit to Chile, Walters reported, Pinochet wanted him to know that his regime was “willing to take a number of steps in the direction of human rights and let you have the credit for having persuaded him to do it.”
Only six months later, again “at Pinochet’s direction,” Contreras returned to Washington on July 5 for yet another secret meeting with Walters. This time he informed him that the regime had decided to cancel a trip by the UN Human Rights Commission to Santiago to investigate the fate of the disappeared, and asked that the U.S. government veto any attempt to expel Chile from the United Nations. Contreras provided details on the “excellent liaison relationships with both the Argentine and Brazilian [intelligence] services with broad exchange of information”—a regional collaboration that would soon evolve into Operation Condor. On Pinochet’s behalf, he also lobbied again for military aid to defend Chile against the pro-Soviet Peruvians, who, he claimed, were working with the Cubans to overthrow the Banzer regime in Bolivia. “President Pinochet would like to see if there is any way the US could arrange indirect military aid for Chile through a third country,” Walters reported to Kissinger.
In a meeting at the State Department two months later, Chile’s Ambassador Manuel Trucco complained bitterly that DINA “has a separate channel to Washington,” and that the foreign ministry “had not even known that Contreras was coming” to town.
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The revelations of Pinochet’s secret communications with Kissinger are contained in dozens of newly declassified documents—an early Christmas present to history from the U.S. State Department’s historical office. On December 18, the Office of the Historian released the latest compilation of the Foreign Relations of the United States (FRUS) series, containing 1000 pages of transcribed documents on U.S. relations with the Southern Cone nations between 1973 and 1976. Among those records are more than 115 documents on Chile, and the early years of U.S. policy toward the consolidation of Pinochet’s bloody dictatorship.
Some of the documents have been seen before—released some 15 years ago as part of the Clinton administration’s special declassification of 23,000 records on Chile after Pinochet’s arrest in London. For example, the new FRUS volume contains the transcript of Kissinger’s reaction, during an October 1, 1973 staff meeting, to reports on widespread repression and executions by the new military regime: “I think we should understand our policy—that however unpleasant they act, the Government is better for us than Allende was.” It contains the transcript of his famous June 1976 meeting with Pinochet in Santiago during which he told the dictator that “In the United States, as you know, we are sympathetic with what you are trying to do here….We want to help, not undermine you.”
But the volume also contains many never-seen-before memoranda of conversations, CIA reports, cables and meeting notes that shed considerable light on Pinochet’s operations and U.S. policy toward the consolidation of his regime. And some documents which were previously released with heavy redaction—whole paragraphs blacked out by U.S. government censors—have now been released intact. Through the lenses of U.S. intelligence operatives and analysts, diplomats and high level policy makers, they tell the story of the first three years of Pinochet’s military dictatorship.
Indeed, among their many details, the documents shed light on some key, and controversial, operations between 1973 and the end of 1976:
Secret CIA Funding for Christian Democrats
The coup was widely condemned around the world. As part of an early covert propaganda effort to cast the new regime in a positive light, the CIA provided $9,000 to, according to the declassified documents, “cover travel costs for three Christian Democratic Party members to tour Latin America and Europe explaining their party’s decision to support the new Chilean government.” The CIA also requested additional funds to help the Chilean Society for Industrial Development purchase a network of radio stations to use in promoting the new regime, and sought $160,000 to assist the near-bankrupt PDC to pay its bills and continue to function as Chile’s leading political party.
The CIA’s effort to continue covert funding of the PDC after the coup set off a major debate inside the U.S. State Department, particularly between Assistant Secretary of State for Latin America, Jack Kubisch, and a top aide to Henry Kissinger, Harry Schlaudeman. They argued over the propriety of covert support, and the potential to offend Pinochet vs. the need to keep the PDC going in order to support the new regime.
During a meeting with CIA officials on November 23, 1973—an uncensored summary of the meeting is now available–Kubisch argued that covert support for the PDC was fine when Allende was President. But now that Pinochet was in power, he stood for the principle of non-intervention. “Just because we did not like a government was no reason to intervene in their countries,” he said. Shlaudeman, on the other hand, saw the sheer hypocrisy in that position. According to the memorandum of conversation, “he said that he was worried about the effects of a drastic, immediate cut off right now, especially since we had been saying ever since 1962 that our primary interest in Chile was the survival of democracy. Mr. Kubisch responded that Chilean democracy had taken the country close to disaster.”
Moreover, the U.S. didn’t want to offend Pinochet military rule by supporting a pro-democracy party. “Mr. Kubisch asked what would happen if in January or February the Junta found out that we had made money available to the PDC. They naturally would ask what the hell we were doing, were we still intervening in Chile; still meddling?”
In the end, the CIA did provide funds for the PDC through to June of 1974–not because they represented a potential return to Chilean democracy but because their support for the military takeover provided legitimacy and capabilities for new regime. “A PDC break with the Junta,” Shlaudeman argued, “could mean a breakdown in the effectiveness of the new government.”
The Horman Case
Among the hundreds of Chileans executed in the days and weeks following the coup were two U.S. citizens—Charles Horman and Frank Teruggi. Particularly the case of Horman, the subject of the Oscar-award winning film, MISSING, became a political headache for U.S. officials after the coup. His wife, Joyce, and father, Ed Horman, tenaciously pressured Embassy officials to find him after he was seized by the military at his home and disappeared on September 17, 1973.
Two of the Embassy officials they dealt with were, in fact, undercover CIA operatives posing as attaches in the U.S. Consulate. For the first time, the FRUS volume acknowledges their identities—John S. Hall and James Anderson. (To their credit, the historians in the State Department approached the CIA and requested still secret records from a file called “Chile Special Search Project”; and also asked the CIA to allow their names to be printed. The CIA agreed.) In November, the CIA station in Santiago sent a cable to Washington reporting on the contacts that Hall and Anderson had with the Horman family and the initial efforts they made to investigate Charles’ fate. The cable begins: “Embassy in general and Consulate in particular are being charged with inefficiency and negligence in handling of Frank R. Teruggi and Charles E. Horman cases. Following paragraphs contain background on more important aspects of involvement of [consular officers John Hall and James Anderson] [1 line not declassified].”
Anderson became a key actor in the saga of the search for Charles Horman; in the spring of 1974, he accompanied a Chilean intelligence officer, Rafael Gonzalez, to recover Horman’s body from an unmarked grave in the national cemetery. Soon thereafter, however, Gonzalez sought asylum in the Italian Embassy with his wife and young son and was forced to live there for several years while the Pinochet regime refused to provide him safe passage out of the country. In June 1976 he told two U.S. reporters that he had been present in General Alfredo Lutz’s office while Charles was being interrogated and that there had been an American in the room—a falsehood he says he made up to attract attention to his asylum case—and that Charles had been killed “because he knew too much.”
Gonzalez’s allegations created a major scandal in the United States where citizens, and leading members of Congress, were outraged about CIA covert operations to overthrow Allende. The new documents reveal that the outcry prompted Kissinger’s deputy, Harry Shlaudeman, to meet with Anderson in San Jose, Costa Rica, in September 1976 where he was posted in the Embassy undercover as a “political officer.”
According to a previously unknown “memorandum for the record” about that meeting, Anderson recorded all of his efforts to locate Charles Horman back in the fall of 1973, along with his meetings with Gonzalez. The memo reveals, for the first time after more than four decades, that the CIA compiled a set of investigative documents, based on interviews and reports by Anderson, of their efforts to locate Horman after his case became a cause célèbre. According to Anderson, he kept a set of memos and reports because “he prepared a draft cable for his supervisor because of the sensitivities of this case. Accompanying this draft telegram was background information for use by his supervisor in deciding whether or not to transmit the draft.”
None of these documents, however, were recovered by the State Department. But this document will allow the family and their lawyers to formally press the CIA to locate Andersen’s records and release them.
The new documents collection contains a number of declassified documents on the assassination of Orlando Letelier and the U.S. government’s knowledge of Operation Condor. They include previously released documents that show that Kissinger’s aides learned about Condor and its assassination missions in July 1976, and informed Kissinger in early August 1976. Kissinger authorized a demarche to all the military rulers in the Condor nations. But after his Ambassador in Santiago, David Popper, objected that “Pinochet might well take as an insult any inference that he was connected to such assassination plots,” Kissinger rescinded the demarche. The volume includes a description of a short cable Kissinger sent five days before the Letelier-Moffitt assassination that “instructed that no further action be taken” be taken to protest Condor operations—and a September 20, 1976 cable from his top aide, Harry Shlaudeman transmitting the order to “simply instruct the Ambassadors to take no further action, noting that there have been no reports in some weeks indicating an intention to activate the Condor.” Letelier and Moffitt were assassinated by a car-bomb planted by DINA operatives the next morning.
In the wake of a horrific act of international terrorism in the capital city of the United States, Kissinger’s office ordered the CIA station chief to meet with Contreras and effectively give him the demarche that had never been delivered to Pinochet. For the first time, a report on that meeting has been declassified in this volume.
The meeting took place on October 8, 1976. According to the report by the Station chief, whose identify is deleted from the documents, he shared his concerns about Condor with Contreras:
[The CIA] is very worried about reports it has received from various sources on the formation of Operation Condor by DINA and its counterparts in the Southern Cone and Brazil. [less than 1 line not declassified] that according to our reliable information, Operation Condor consists of two elements: the exchange of intelligence concerning extremists and the planning of executive actions—assassinations— against extremists in Europe and other foreign areas. [less than 1 line not declassified] is extremely concerned about the latter aspect. Contreras said that he was aware of our concern.
Predictably, the DINA chief lied about Condor operations: “Contreras said that our information is distorted. Operation Condor does exist, has its headquarters in Santiago, but its only purpose is the exchange of intelligence concerning the extremists within the participating countries, which include Chile, Argentina, Uruguay, Paraguay, Bolivia, and Brazil.” He revealed that the DINA maintained an official presence in both Argentina—previously known—and Brazil—previously unknown. “Contreras claimed that DINA has only two officials abroad, a liaison officer in Brazil and another in Argentina, and denied that there are any officials in Europe or Washington. According to Contreras, Colonel Mario Jahn, former deputy director of DINA, reverted back to the Air Force before leaving on his assignment to Washington.”
Incredibly, the CIA official failed to raise Letelier assassination; there is no mention of it in his report on the meeting. Perhaps more striking, U.S. officials in Washington seemed to believe that Contreras was now effectively warned not to engage in further assassinations. In a memo to Kissinger transmitting the CIA report on the meeting, Shlaudeman wrote that “The approach to Contreras seems to me sufficient action for the time being. The Chileans are the prime movers in Operation Condor. The other intelligence services are also aware of our concern [less than 1 line not declassified] and now, undoubtedly, by way of Contreras. We will continue to watch developments closely and recommend further action if that should be necessary.”
** ** **
With ongoing legal proceedings for the crimes of Condor in Argentina and Chile, and continuing legal efforts in the Horman and other human rights cases, these new documents continue to be relevant—even if they don’t fundamentally alter our knowledge of the history of Pinochet’s repression and U.S. policy and operations during the first three years of his regime. In effect, these documents provide a chronological roadmap to a particularly painful and dramatic history that, even four decades later, refuses to fully recede into history. The revelations of these records are sure to stimulate efforts to push for the declassification of more documentation—including Chilean documents because there are still secrets yet to be exposed.
Indeed, until the last page of the still-secret historical record is declassified, the history of the U.S. ties to the coup, and to the darkest days of the Pinochet regime, will remain ever in the present.
**Peter Kornbluh is a senior analyst and director of the Chile Documentation Project at the National Security Archive in Washington D.C. and author of The Pinochet File: A Declassified Dossier on Atrocity and Accountability (Barcelona: Critica, 2013).
FOIA Fee Survey, New NSArchive Nuclear History Publication, and the National Security Archive’s 30th Anniversary! FRINFORMSUM 12/17/2015
If you haven’t yet, please help the National Security Archive and the Project on Government Oversight provide a more representative view of FOIA fees by filling out and helping distribute a very quick survey! The U.S. government’s FOIA Advisory Committee recently distributed a similar survey – but only to federal FOIA processors. Now we need to hear from non-government FOIA stakeholders so that your views on FOIA fees can be cataloged and documented. The survey will remain open until January 14, 2016.
This week the National Security Archive published a new collection of more than 2,000 declassified documents on the nuclear weapons policies of the Nixon and Ford administrations. Some highlights from the new set – a publication of the Digital National Security Archive (DNSA) with the help of our partners at ProQuest – include a Top Secret August 10, 1972, memo that contains one of the most explicit declassified discussions of the Madman Theory – Nixon and his national security adviser Henry Kissinger’s belief that they could compel “the other side” to back down during crises in the Middle East and Vietnam by seeming “crazy” enough to be willing to launch a nuclear strike. Another document, a January 2, 1974, memo, recounts the SCYLLA III-73 war game showed optimism that “limited use” of nuclear weapons could be employed for signaling to avoid a broader East-West nuclear conflict. In the SCYLLA III-73 scenario, the White House authorized 85 nuclear weapons for use in order to prevent a Soviet invasion of Iran – 54 of which were used.
A recent Bulletin of the Atomic Scientists post by Matthew R. Costlow missed the point of the key 1990 President’s Foreign Intelligence Advisory Board (PFIAB) report, which was released to the National Security Archive after a 12-year fight and found that 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. Although the report concludes that Soviet military leaders may have been seriously concerned that the US would use Able Archer 83 as a cover of launching a real attack and highlighted the danger of nuclear war through miscalculation, Costlow posits that it “appears the evidence doesn’t suggest that further cuts to US nuclear weapons are a solution to future nuclear crises.” Nate Jones, the Archive’s Able Archer expert, argues that Costlow “misuses a report that concludes that the United States faced an unacceptable risk of nuclear war through miscalculation during Able Archer 83 to argue that ‘achieving a world with many fewer nuclear weapons [does not necessarily mean] we will experience fewer nuclear crises.’ In fact, in this case Reagan’s and Gorbachev’s elimination of the entire class of extremely destabilizing intermediate -range nuclear forces in Europe did precisely that.” For a more nuanced look at nuclear crises and alerts read chapter one of Nixon’s Nuclear Specter: The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War, co-authored by Jeffrey Kimball, Miami University professor emeritus, and William Burr, who directs the Archive’s Nuclear History Documentation Project. It’s also worth noting that the October 1969 nuclear crisis Costlow sites is in fact the aforementioned Madman alert, not a crisis.
Last year two bipartisan and uncontroversial FOIA bills died after being held up by Speaker John Boehner (R-Ohio); reporting by The Washington Post revealed that opposition to the bill by several key agencies – including the Justice Department – was the cause of the bills’ unceremonious defeat. The Freedom of the Press Foundation is now suing the Justice Department “for all correspondence the agency has had with Congress over proposed FOIA reform bills that died last year in Congress, despite having unanimous support of all its members.” FPF’s Trevor Timm notes, “What made the Justice Department’s reported actions particularly reprehensible was that the legislation’s language—and even more specifically, the precise part that the Justice Department was reportedly worried about—was based virtually word for word on the Justice Department’s own FOIA policy.”
A FOIA request filed by the New York Times shows that Defense Secretary Ashton Carter conducted government business over his personal email for months after it was revealed that Hillary Clinton relied on her personal email exclusively while secretary of state. Carter used an iPhone and iPad for messaging, and “a former aide to Mr. Carter said the defense secretary used the personal account so frequently that members of his staff feared he would be hacked and worried about his not following the rules.” Carter has acknowledged the use of personal email was “a mistake”, and, “As a result, he stopped such use of his personal email and further limited his use of email altogether.”
The National Security Archive requested assistance from the FOIA ombuds, OGIS, after the CIA informed us that our FOIA request for the agency’s CREST database of 11.6 million already declassified documents that are currently only available onsite at the National Archive’s College Park location in Maryland (about 250,000 pages are available on the CIA’s website) failed to “reasonably describe” the records we sought. The CIA took this unacceptable position even though it is currently processing an identical request for MuckRock and informed U.S. District Court Judge Ketanji Brown Jackson in 2015 that, in response to MuckRock’s FOIA lawsuit, it had developed a process to streamline the processing of MuckRock’s identical FOIA request. In the time it took OGIS to respond to our request for assistance (filed in September 2015), the Archive appealed the CIA’s adverse determination – only to have the CIA refuse to process our appeal. By the time OGIS did respond (December 2015), it said that it had looked into the matter but that “In cases such as this where an agency is firm in its position, there is little for OGIS to do beyond providing more information about the agency’s actions.”
Another OGIS response for assistance has gone past deadline. In October 2014, the National Security Archive joined a coalition of open government groups in asking OGIS to investigate agencies’ practice of sending “still interested” letters. These are letters that 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.
OGIS informed our office in November 2014 that it would review agencies’ practice of sending still interested letters, and recently informed EPIC that its investigation into the matter won’t be finished until March 2016. According to OGIS director Jim Holzer, the OGIS compliance team has been hampered by agency reporting on the use of these letters. (If you have any feedback on the use of “still interested” letters, let OGIS know here in the comments section.) In the time it has taken OGIS to conduct its review – a seemingly straight-forward issue as 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 – the Department of Justice’s Office of Information Policy (OIP) has issued guidance condoning the legality of a practice that has no legal basis in the FOIA.
The recent Archive posting on the Clinton White House and Climate Change suggests a number of parallels with the Obama experience. Over the course of Clinton’s presidency, a laundry list of differences arose among key international constituencies. Questions ranged from how ambitious the targets for greenhouse gas (GHG) emission cuts should be, to the respective obligations of developing and developed countries, especially the roles of China and India. Battles with Congress over priorities and possible effects on the American economy and productivity further agitated the waters. Even before the landmark Kyoto talks of 1997, the administration found itself obliged to give up many of its “most cherished ideas” and to look instead for “fallback” options across the board, according to the documents. This is the second in a series of web compilations on United States policy toward climate change. The first compilation covered the Reagan and Bush 41 presidencies and appeared on December 2, 2015.
This week’s #tbt pick is chosen with the National Security Archive’s 30th (!!!) birthday in mind, and is a throwback to our very first posting – way back in 1996 – on the US, China, and the bomb. Here’s to 30 more years of casting light on the government’s dubious secrets, fighting to strengthen the public’s right to know, and informing the debate on key US foreign policy decisions!
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 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.
1974 U.S. War Game Launched 54 Nuclear Weapons in Iran to “Save” Country from Soviet Invasion, According to Declassified Document in New National Security Archive Publication
On December 16, 2015, the National Security Archive will publish a new collection of more than 2,000 declassified documents on the nuclear weapons policies of the Nixon and Ford administrations. The collection – almost all of which is being published for the first time – covers a critical period in the nuclear age that had ramifications extending to the post-Cold War world, where nuclear proliferation, arms control, and regional arms races – from the Middle East to South and East Asia – remain at the core of public concerns over global security and peaceful international relations. The new set is a publication of the Digital National Security Archive (DNSA) with the help of our partners at ProQuest, and builds on the Archive’s earlier ProQuest publication, U.S. Nuclear History: Nuclear Arms and Politics in the Missile Age, 1955–1968.
The new collection, U.S. Nuclear History, 1969-1976: Weapons, Arms Control, and War Plans in an Age of Strategic Parity, richly documents the White House’s pursuit of a policy of achieving technological advantage over the Soviets, supporting strategic arms limitation talks, and making nuclear use threats more credible by developing limited alternatives to catastrophic nuclear exchanges. The 2,291 documents illuminate decision-making at the White House and the Defense Department, policy inputs from the State Department and the Arms Control and Disarmament Agency (ACDA), as well as strategic intelligence analyses and reporting provided to the decision-makers. The documents will provide researchers with invaluable information on the missile and bomber deployments that embodied the devastating threats and formed the underpinnings of Cold War deterrence, as well as the war plans that were designed to make good on those threats.
The principal topics and themes documented throughout the collection are:
- Offensive and Defense Delivery Systems;
- Nuclear Operations: Exercises and Alerts;
- Command, Control, and Warning;
- Alliance Nuclear Relations;
- Nuclear War Plans;
- Strategic Intelligence; and
- Strategic Arms Control.
Major document sources for the set include:
- the Department of State;
- White House National Security Staff;
- the Department of Defense;
- the Joint Chiefs of Staff;
- the U.S. SALT Delegation;
- the former Arms Control and Disarmament Agency;
- and the Richard M. Nixon and Gerald R. Ford Presidential Libraries.
The following document highlights from the collection contain explicit discussions of the Nixon administration’s madman theory, emerging concerns over the vulnerability of U.S. Minuteman missiles, West German Chancellor Helmut Schmidt’s worries about “nuclear affluence,” and war games in which nuclear weapons were used for “signaling.”
A Top Secret August 10, 1972, memo, from Assistant Defense Secretary Gardiner L. Tucker’s files, contains one of the most explicit declassified discussions of the Madman Theory – Nixon and his national security adviser Henry Kissinger’s belief that they could compel “the other side” to back down during crises in the Middle East and Vietnam by seeming “crazy” enough to be willing to launch a nuclear strike. Kissinger said: the “President’s strategy has been (in the mid-East crisis, in Vietnam, etc.) to ‘push so many chips into the pot’ that the other side will think we might be ‘crazy’ and might really go much further.” Kissinger followed the Madman strategy during the 1973 October War between Israel and a coalition of Arab states led by Egypt and Syria in order to deter Soviet intervention in the crisis.
Window of Vulnerability
A Top Secret April 27, 1972, memo from Tucker to Defense Secretary Melvin Laird focuses on Soviet ICBM developments – particularly the possibility that the Soviets were developing a missile with a throw weight that was up to 1 ½ to 2 times greater than their SS-9 missiles. The increased throw weight would give the Soviets a first-strike capability against the US’s Minuteman ICBMs by affording the Soviets two RVs (reentry vehicles) per Minuteman silo, and allowing them to “preempt Minuteman with confidence.” Tucker says, “Nothing in our presently formulated interim offensive limitation proposals would preclude this replacement.” Nitze’s concerns foreshadowed exaggerations during the late 1970s and early 1980s about what was called the “window of vulnerability.”
A memorandum of conversation from April 30, 1970, including then-German Defense Minister Helmut Schmidt, the State Department’s Director of Political-Military Affairs, Ronald Spiers, and the American Embassy in Bonn’s Jonathan Dean underscores the pressure to remove US forces from Europe and West German sensitivity about comments made by 7th Army Commander General James H. Polk about U.S. nuclear policy in Europe. During a discussion of US tactical nuclear weapons (point 5), “Schmidt said that he was absolutely opposed to the concept of pre-placing ADM’s (Atomic Demolition Munitions), pre-chambering [advance deployment] of ADM’s, or any related projects. He said he simply would not have them in Germany. He said that if the German public should ever become aware of certain American military attitudes on this subject there would be a major public controversy.” Referring to the US as an affluent society, Schmidt said that General Polk was apparently living with a concept of ‘nuclear affluence’” but Schmidt did not agree with “easy spending” of nuclear weapons.
A remarkable January 2, 1974, memo for Defense Secretary James R. Schlesinger recounting the SCYLLA III-73 war game showed optimism that “limited use” of nuclear weapons could be employed for signaling to avoid a broader East-West nuclear conflict. In the SCYLLA III-73 scenario, “In June 1976, Iraqis attempt to seize disputed territory from Kuwait by force. Iran pledges support to Kuwait and invades Iraq. As fall of Baghdad becomes imminent, USSR intervenes. Soviet military elements join Iraqis as two Soviet divisions cross USSR-Iranian border south of [the] Caucasus. US intervention considered vital to save Teheran, but insufficient conventional strength immediately available. US President directs options be prepared for use of tactical nuclear weapons in Iran.” The White House authorized 85 nuclear weapons for use in the scenario and 54 were used. Following the US launch, “Red Team (USSR) response to US nuclear attack and resultant casualties was reasoned and deliberate. Moscow understood US signals/intentions. Recognizing struggle was political — contest for world supremacy — Red reacted for maximum political gain using conventional military force.”
More than 400 federal FOIA processors filled out a recent FOIA fees survey distributed by the FOIA Advisory Committee. Respondents indicated that, among other things, they believe roughly 20 percent of all FOIA requests are charged fees, and that using fees never or rarely results in requesters narrowing their requests.
This important survey, however, was only given to government agencies (ostensibly because “logistical problems, problems about doing polls and publishing results” made it impractical to distribute a similar poll to the public).
In an attempt to provide a broader picture of FOIA fees as they affect all sides of the FOIA process, the National Security Archive and the Project on Government Oversight are distributing a similar, independent, unofficial survey to non-government FOIA stakeholders so that their views on FOIA fees can be cataloged and documented.
Please take a moment to fill out the five-minute survey and help us circulate it as widely as possible so we can provide the Committee with a more representative view of FOIA fees.
The survey parallels the FOIA Advisory Committee survey, and will remain open until January 14, 2016. The results will be made available in advance of the Committee’s next meeting – which will be held on January 19.
The survey can be found here: http://goo.gl/forms/kWNissAaC6.
FBI’s Police Shooting Tracking System a “Travesty”, British Cabinet Office Concealing War Scare Report Despite Strong Evidence for its Release, and Much More: FRINFORMSUM 12/10/2015
The FBI will replace its “travesty” of a tracking system for fatal police shootings by 2017. The new system will be shared with the public in near-real-time (the data is currently compiled at the end of each year), and will include statistics on “any incident in which an officer causes serious injury or death to civilians, including through the use of stun guns, pepper spray and even fists and feet.” The success of the system will rely on local police departments sharing the data with the bureau – an initiative only 3 percent of the nation’s 18,000 police departments have taken since 2011. The Justice Department’s Bureau of Justice Statistics is also launching a pilot program utilizing open-source data-collection efforts by The Washington Post, The Guardian, and others “to identify deaths that are not being reported. Then, BJS officials contacted police, medical examiners and other local officials to check the accuracy of the information and to gather additional facts.”
Nate Jones, the National Security Archive’s FOIA Project Director, requested a British joint intelligence committee document “that would shed fresh light on how Britain and the US came close to provoking a Soviet nuclear attack” in 1983 over a year ago. The Guardian reports that the British Cabinet Office, however, is continuing to block its release despite: the US’s release of thousands of pages of documents on the crisis; the UK’s vaunted 20-year-rule; and Michael Herman’s – former head of GCHQ’s Soviet division – call for the document’s release.
At least we can now play Able Archer 83, the “expandable strategy card game where you take command of a strategic cold war power and face off in a simulated military exercise against enemy forces” while we wait for the British Cabinet Office to uphold transparency and declassify this key document.
A recent article on ArsTechnica provides more detail on the technological factors that contributed to the 1983 War Scare – namely how the Soviet’s modeling for monitoring the balance of power between the US and the Soviet Union “nearly triggered WWIII”. KGB annual reports for the years 1981 and 1982 and posted on the Archive’s website corroborate the creation of Operation RYaN (the Russian acronym for Raketno-Yadernoye Napadenie, “nuclear missile attack”), the largest peace-time intelligence gathering operation in history to “prevent the possible sudden outbreak of war by the enemy.” The KGB software model constructed as part of Operation RYaN, however, “fed growing paranoia about the intentions of the United States, very nearly triggering a nuclear war.” As Sean Gallagher surmises, “Given all the weird inputs that the model was getting and the Soviet leadership’s predisposition to believe the worst of Reagan to begin with, the Politburo ultimately decided that Able Archer was, in fact, a cover for an actual surprise nuclear attack. They began acting accordingly.”The FOIA Advisory Committee’s latest meeting (held October 20 although the video was only made available recently, raising concerns that technical issues are hampering the Committee’s potential influence) tackled, among other things, OMB’s outdated and incomplete FOIA fee guidance. OMB’s guidance to all agencies on when and how they can charge FOIA fees dates from 1987 – well before the Internet Age and agencies’ ability to send FOIA responses via email – and is missing a key word. The Committee voted a formal “show of support” to recommend to the Archivist that he advise OMB to update its Fee Guidance, language for which will be provided in advance of the January 19, 2016 meeting. Other highlights from the meeting include discussion of the fee subcommittee survey, which was only given to government agencies (ostensibly because “logistical problems, problems about doing polls and publishing results” made it impractical to distribute a similar poll to the public). The National Security Archive and the Project on Government Oversight will soon distribute a similar, independent, unofficial fee survey to non-government FOIA stakeholders so that their views on FOIA fees can be cataloged and documented.
Matthew Aid recently highlighted a Drug Enforcement Administration (DEA) report on the threat Mexican drug cartels pose to the US on his website. Aid notes that the interesting report “is a nice compact order of battle of all the Mexican drug cartels. The DEA separately released a two page report that has a very nice map showing the respective areas of control inside Mexico of all the major Mexican drug cartels.”
The Special Inspector General for Afghanistan Reconstruction is widening its investigation into the Task Force for Stability and Business Operations for allegedly spending $43 million to build one compressed natural gas station “by [further] probing allegations that it spent $150 million, or nearly 20 percent of its budget, on private housing and security.” In a letter to the Secretary of Defense SIGAR notes that while it would have been more practical for the Task Force to live on US military bases, the Task Force – according to one official – “expressly avoided staying on military bases because ‘the goal was to show private companies that they could set up operations in Afghanistan themselves without needing military support.’” Accommodations included in the Task Force’s housing and furnished by tax payers included rooms equipped with 27-inch flat screen TVs and menu options of 3-star food, “with each meal containing at least two entrée choices and three side order choices, as well as three course meals for ‘special events.’”
A bipartisan congressional investigation has uncovered “a half-dozen previously undisclosed security breaches” at the White House since 2013, leading lawmakers to call the Secret Service an “agency in crisis”. The most eyebrow-raising finding involves new details of a September 27, 2014, Black Caucus Foundation’s awards dinner in which a man posed as Rep. Donald Payne Jr. (D-N.J.) and was escorted to meet the president. The report notes, “The agency’s recent public failures are not a series of isolated events, but the product of an insular culture that has historically been resistant to change”. Compounding “systemic mismanagement”, the agency is suffering from a “staffing crisis”, operating with only 6,315 agents – the lowest number personnel in a decade. Unsurprisingly, a recent Best Places to Work in the Federal Government poll found that only a third of Secret Service officers are happy with their job and would recommend it as a good place to work.
Mark H. Grunewald, James P. Morefield Professor of Law at Washington and Lee University School of Law, is undertaking a FOIA Oral History Project. The project seeks to document, through a series of individual interviews, the history of the implementation of the Freedom of Information Act by federal agencies, with a view toward having at least the first phase of the project completed by July 4, 2016, the 50th anniversary of the Act’s passage. If you are interested in providing voluntary feedback to Professor Grunewald you may contact him directly at 540-458-8526 or firstname.lastname@example.org. Please note that it is especially helpful if you have had frontline supervisory/ leadership responsibilities for FOIA implementation below the political level.
December 7th’s Final Jeopardy clue was “The website for this ’60s act says “First look to see if the information you are interested in is already publicly available”. The answer? The Freedom of Information Act, of course! FOIA Advisor’s Kevin Schmidt highlighted FOIA’s pop-culture moment here.
This week’s #tbt document pick is a 2003 posting on Nixon’s historic February 1972 trip to China, which includes Kissinger’s intelligence briefing to the Chinese and the complete texts of Nixon’s conversations with Zhou, including the assurances on Taiwan.
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