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FOIA and “The Football War”

October 17, 2016

fbwar2On July 15, 1969, Honduran radio networks, using the country’s recent World Cup qualifier loss to El Salvador as pretext for violence, encouraged listeners “to grab machetes or other weapons and move to the front to assist the army” in its 4-day war against their Salvadoran neighbors.

The Archive’s Nate Jones recently joined the Wilson Center’s Sports in the Cold War podcast to discuss how the contentious match combined with political tensions over immigration and an ill-defined border to spark the so-called “The Football War” – and how declassified Central Intelligence Bulletins and President’s Daily Briefs obtained through the Freedom of Information Act provide a vivid day-by-day account of the incident.  Listen here.

Jones is the author of the new book Able Archer 83: The Secret History of the NATO Exercise that Almost Triggered Nuclear War and will be giving a special presentation on his research at the Wilson Center on October 20 at 3PM, with commentary by Archive director Tom Blanton.

El Salvador defeats Honduras in Mexico City, 1969.

El Salvador defeats Honduras in Mexico City, 1969.

State Department’s 1953 Iran FRUS Past Due: FRINFORMSUM 10/13/2016

October 13, 2016
Iranian Prime Minister Mohammad Mosaddegh, overthrown in the 1953 coup.

Iranian Prime Minister Mohammad Mosaddegh, overthrown in the 1953 coup.

It is past time for the State Department to release its Foreign Relations of the United States (FRUS) volume on the 1953 Iran Coup. Malcolm Byrne – the National Security Archive’s Deputy Director and Iran Project Director – argues in a recent Politico article that the State Department’s decision to delay the release of the “long-overdue” volume over stated concerns that it would prompt a harsh response from Tehran is misguided. Byrne notes that “The problem with this rationale is that, so many years later, the administration’s anxieties over lasting damage coming from the Islamic Republic have simply not been supported by experience.”

The history of the 1953 Iran FRUS is a dramatic one. The State Department first published a 1989 volume on the coup that failed to mention the CIA’s involvement, an omission that scholars called a “fraud” and received such intense criticism that Congress passed a 1991 statute requiring the FRUS to present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations. The outrage and legislation prompted the State Department Historian’s Office to prepare a make-up volume, which, as Byrne notes, “it painstakingly compiled several years ago and expected to publish in 2013. In other words, as the Department’s own historical advisory committee noted in its latest annual report, it is finished and ready to go. But it has yet to appear.”

Rationale for withholding the history has evolved over the years – ranging from claims of needing to shield sources and methods to protecting the well-known-secret of British involvement in the coup, and obfuscation persists even though CIA documents on the United States’ role in the controversial operation were released to the National Security Archive in 2013 through the FOIA.

Byrne argues that instead of clinging to secrecy, the State Department should release the volume, giving a “boost to the president’s lofty commitment to greater openness,” and providing the “American people access to a chapter of their recent history they have every right to see” in the process.

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National Security Council, Minutes of the National Security Planning Group Meeting, “Subject: US-Soviet Relations,” June 12, 1986. [Secret]

On June 12, 1986, President Reagan told attendees of the National Security Planning Group meeting that “we do not want a first-strike capability, but the Soviets probably will not believe us.” Reagan said this made the presence of international observers even more important and argued that the US should ultimately “[a]gree to share SDI with the world.” This remarkable declassified document is one of 32 recently posted by the Archive that, collectively, reveal that many US officials treated Soviet leader Mikhail Gorbachev’s radical proposal in January 1986 to abolish nuclear weapons by the year 2000 as pure propaganda, though it was welcomed by President Reagan. The records show serious internal US debates, consultations with allies, and support by the president that ultimately helped produce the historic Reykjavik summit 30 years ago. See the posting – and the declassified documents – here, and keep an eye out for transcripts covering all of the bilateral summits from 1985 to 1991 that will appear next month in the new book, The Last Superpower Summits: Gorbachev, Reagan, and Bush: Conversations that Ended the Cold War.

A new State Department Inspector General report on classification activity is a damper on earlier Information Security Oversight Office reports that tout sharply declining number of original declassification decisions. ISOO reports on agency classification decisions rely on figures that “were understood to be estimates” but have nonetheless seen the total number of original classification decisions drop dramatically from 258,633 in 2005 to 53,425 in 2015. The new State Department report says, however, that the numbers are not estimates – they are “inaccurate and incorrect” and that classification totals reported to ISOO “will not accurately represent all of the Department’s classification decisions because not all decisions are being identified or sampled as part of the Department’s self-inspection program.” Steve Aftergood drew attention to the report on his blog earlier this week, quoting ISOO director William Cira as being unsurprised and “not especially troubled” by the IG report. Cira notes that while the extrapolation method used to calculate the figures is crude, it “has been consistently applied across many agencies for a very long time,” so while it may not be accurate it may still reliably indicate a downward trend in classification decisions. Aftergood notes, “without real quantitative and qualitative clarity, effective management of agency classification activity will be beyond reach.”

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Frank Sturgis, image via Wikimedia Commons.

The FBI is asking for nearly $3,000 for its 75,000-page file on Watergate burglar (and alleged CIA asset) Frank Sturgis, so MuckRock is organizing a Crowdfund to help get the historically significant documents released. As Michael Best writes for MuckRock, “Despite numerous denials from the CIA and assertions that Frank Sturgis was never employed by the Agency, a pair of documents have surfaced that clearly contradict this and show the Justice Department was aware of it. We won’t know the full extent of the file – which is more than four times as long as the 17,000 page FBI file on Watergate – until it’s released, but there are a number of things that are certain to be in it and which have very little official documentation available to the public.”

Thirty years ago, a Soviet nuclear submarine with about 30 nuclear warheads on board sank off U.S. shores north of Bermuda as Mikhail Gorbachev and Ronald Reagan were preparing for their historic summit in Reykjavik, Iceland. But instead of Chernobyl-style denials, the Soviet government reached out to the Americans, issued a public statement, and even received offers of help from Washington, according to the never-before-published transcript of that day’s Politburo session, posted recently by the National Security Archive. As the Archive’s Russian Programs Director Svetlana Savranskaya writes, “This was the first time the Soviets had ever delivered a public information report immediately after an accident of this type and did not view U.S. actions in the area as a provocation. Communications between the two superpowers were therefore very constructive.  Having learned how damaging to the Soviet image the secrecy surrounding the Chernobyl accident was, Gorbachev decided to truly deploy glasnost in this case.  In addition to the shadow of Chernobyl, the conduct of both sides, along with the tone of the Politburo discussion, were clearly influenced by preparations for the upcoming summit, which both leaders considered a top priority.”

On the 40th anniversary of the first and only mid-air bombing of a civilian airliner in the Western Hemisphere, the National Security Archive called on the Obama Administration to declassify all remaining intelligence records on Luis Posada Carriles to shed light on his activities, provide historical evidence for his victims, and make a gesture of declassified diplomacy towards Cuba. Toward that goal, the Archive reposted documents implicating Posada Carriles in that terrorist crime and identified still secret records to be declassified.

This week’s Cyber Vault update includes a March 2005 report from Sandia National Labs that offers some useful warnings to anyone doing penetration testing of industrial control systems: the tests themselves could not only cause property damage or wreak minor havoc with larger systems, they could even risk death. In one “real example” the report provides, a tester was almost struck by an inadvertently activated robotic arm:

While a ping sweep was being performed on an active SCADA network that controlled 9-foot robotic arms, it was noticed that one arm became active and swung around 180 degrees. The controller for the arm was in standby mode before the ping sweep was initiated. Luckily, the person in the room was outside the reach of the arm.

Other updates from this week’s Cyber Vault relate to computer security dating all the way back to the late 1990s and early 2000s – including a lengthy, 116-page U.S. Space Command internal Concept of Operations for Computer Network Defense, an early approach to an ongoing problem in our era.

Join the National Security Archive’s Nate Jones on October 20th at 3:00pm at the Woodrow Wilson International Center for Scholars for his special presentation on his new book Able Archer 83: The Secret History, with commentary by Archive director Tom Blanton. Believing Able Archer 83 could have been an actual attack, the Soviets had actively prepared for a surprise missile attack from NATO. The seriousness of this close scrape with Armageddon was declassified last October when the U.S. government released a ninety-four-page presidential analysis of Able Archer that the National Security Archive had spent over a decade attempting to free. Able Archer 83 is based upon more than a thousand pages of declassified documents that Nate Jones, Director of the National Security Archive’s FOIA project, has pried loose from U.S. government agencies, British archives, as well as formerly classified Soviet Politburo and KGB files, vividly recreating the atmosphere that nearly unleashed nuclear war. We hope to see you there! To RSVP for this event, please go here.

ramos 6This week’s #TBT document pick is chosen with today’s National League Division Series game 5 between the Washington Nationals and the LA Dodgers in mind – the winner of which will face the Chicago Cubs in the National League Championship Series. This week’s pick is an April 2016 blog post by the Archive’s resident Nats enthusiast/expert Nate Jones on the Wilson Ramos 2012 kidnapping – declassified. Go Nats!

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Happy FOIA-ing!

New CIA Access Rule Bears Watching, and More: FRINFORMSUM 10/6/2016

October 6, 2016

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The CIA has changed its rules for access to classified historical CIA records three times since 2011. Two changes, from September 2011 and August 2016, concern 32 CFR Part 1909’s rules governing access by Historical Researchers and Certain Former Government Personnel – researches like Evan Thomas, author of The Very Best Men. The differences include additional sections on subjects from “Designation of authority to waive need-to-know and grant historical access requests,” to “Receipt, recording, and tasking.” The definition of historical researcher remains similar but with one variation (change from someone “engaged in a research project leading to publication” to “historical research project that is intended for publication.”).

A September 2016 addition to the CIA’s CFR is more substantial and should be of note for those interested in the State Department’s Foreign Relations of the United States (FRUS) publications. The CIA’s September 2016 final rule adds a new CFR part – Part 1911 – that concerns “Special procedures for discretionary access to classified historical Central Intelligence Agency records requested by other federal agencies.” The FRUS is required by 1991 statute – a statute that was passed after the State Department published a 1989 volume on the 1953 Iran coup that received intense criticism for its failure to mention the CIA’s involvement in the coup (a volume that remains withheld) – to present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations. While the CIA rule is new, observers should pay close attention to ensure the end result is not a narrowing of access by State Department researches and others.

Jeffrey Scudder – a former project manager for the CIA’s Historical Collections Division whose hard-fought FOIA lawsuit forced the agency in 2014 to post online 249 Studies in Intelligence articles – is filing a new FOIA suit for 386 documents that the CIA failed to make available electronically with the hopes of ushering in a “paradigm shift” at the agency.

As part of Scudder’s 2014 case against the CIA – which only accepts FOIA requests via fax – he asked that the documents be released in electronic format – the form that they were already in. The CIA, however, continued its common practice of refusing to release soft copies of its records – ostensibly for security reasons – and told Scudder he could only have hard copies of the articles, which would cost Scudder twice as much. The CIA’s action prompted District Court judge Beryl Howell to find that, “Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

The new suit, “co-filed with academics Ken Osgood, a history professor the Colorado School of Mines; Hugh Wilford, a history professor California State University; and Mark Stout, who directs Global Security Studies at Johns Hopkins” attempts to ensure that the 2014 Howell ruling is not a one-time victory. The lawsuit claims “that researchers can literally count on one hand the number of times the CIA coughed up documents electronically to a requester.” It’s worth noting that the CIA’s anti-electronic stance – forcing researchers to travel to College Park, MD to take turns at one of four computer stations to search the CIA’s CREST database – is unique in the intelligence community; the NSA, DIA, NRO and others regularly release FOIA-requested documents electronically with no adverse consequences.

The Intelligence Community penned a letter to both Congressional intelligence committees opposing the restrictions to the Privacy and Civil Liberties Oversight Board contained in the Senate Intelligence Committee’s version of the FY2017 Intelligence Authorization Act. The September 9 letter, signed by ODNI head James Clapper, “‘strongly opposes’ part of the proposed legislation seeking to limit the jurisdiction of PCLOB to the privacy rights of Americans, and not foreigners,” and takes issue with “a provision that would require PCLOB to keep senior intelligence and congressional officials informed about its activities, an arrangement it said would present significant separation of powers concerns.” Senator Ron Wyden (D-Oregon) has a hold on the bill and in July Senator Patrick Leahy (D-Vermont) demanded the PCLOB restrictions be withdrawn.

Last year Republicans on the House Intelligence Committee successfully advanced a provision to the 2016 intelligence authorization bill blocking PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by former PCLOB chair David Medine, which argued that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

The Chicago Police Department has settled a FOIA lawsuit over documents on the city’s use of cell-site simulators, and is expected to release documents “in about a week.” The city has maintained that the devices are used primarily in high-profile cases, like terrorism cases, but hasn’t proven the use of devices is limited to cases of national security.

A recent Justice Department inspector general report faults the Drug Enforcement Administration for misappropriating millions in payments to confidential sources without appropriate oversight – including paying hundreds of thousands of dollars to one AMTRAK employee “for information that was available at no cost to the government.” The DEA also has a long history of frustrating FOIA requesters, including Providence journalist Philip Eil – who just won a multi-year FOIA lawsuit concerning thousands of pages of evidence from the public trial of Dr. Paul Volkman, which was one of the largest prescription drug trials in American history. Eil recently wrote a very good article for the Columbia Journalism Review recounting six FOIA lessons he learned during his five-year battle with the agency (and the Justice Department, which defended the agency’s bad FOIA stance in court).

The National Security Archive recently posted a collection of newly declassified documents – including transcripts of President George H.W. Bush’s September 27, 1991 phone call to Soviet President Mikhail Gorbachev giving the Soviet leader a heads-up on the imminent White House unilateral nuclear withdrawals announcement – to commemorate the 25th anniversary of the Bush initiative. The announcement drew an eager response from Soviet President Mikhail Gorbachev to produce what experts call “the most spontaneous and dramatic reversal” ever of the nuclear arms race. Other posted documents include Gorbachev’s phone call with Bush on October 5 spelling out the dramatic Soviet nuclear pullbacks that matched and in some cases exceeded the American moves and the actual Pentagon orders to U.S. military commanders on carrying out the nuclear withdrawals, the State Department reports on follow up talks in Moscow, translations of the Soviet transcripts of those talks, and internal Soviet assessments of how much the USSR would save from cutting the nuclear weapons involved in the initiative.

1962history

The Archive’s Nuclear Vault director, Dr. William Burr, recently wrote an excellent blog on excessive and unnecessary Secrets of the Cuban Missile Crisis. Burr argues that while more has been learned about the Cuban Missile Crisis in recent decades – like Soviet tactical nuclear weapons in Cuba – the US government continues to keep significant elements of the history secret, including most of the agent reports on the deployment of Soviet missiles in Cuba. Burr has filed a pending appeal for the 7th Air Division in the Cuban Crisis: A Study of Actions in the Emergency before the Interagency Security Classification Appeals Panel, and notes that it “will be an interesting test of whether the Air Force is influential enough to prevent the declassification of such basic information as the number of alert B-47s at bases in the United Kingdom during the Cuban Crisis.”

Reporters Committee for Freedom of the Press just launched a beta of its anticipated new project, the FOIA Wiki. FOIA Wiki is a collaborative FOIA resource that “is part legal guide, part community space for sharing information that aims to serve as a central hub on all manner of issues surrounding FOIA as the law celebrates its 50th anniversary.” The site features, among other things, a “forum where users can post questions and answers about FOIA, as well as discuss problems or thoughts regarding particular records or agencies;” anyone can access the Wiki, you’ll need to create a free account to make modifications. Check out the “help wanted” link to see where FOIA Wiki most needs user input.

The National Freedom of Information Coalition’s 2016 FOI Summit begins tomorrow, October 7, in Washington, DC, and runs through Saturday. There are plenty of panels to check out, including Friday afternoon’s “FOIA @ 50” panel, moderated by Miriam Nisbet, founding director of the Office of Government Information Services, and featuring Archive director Tom Blanton, political activist Ralph Nader, and Founding President of the D.C. Open Government Coalition, Tom Sussman.

jaime_garzon_semana_400In case you missed it, last week the British National Archives declassified 137 top secret files covering “a range of subjects and span the interwar years, Second World War and post-war era up to the mid 1960s. Personal files include individuals classed as Second World War double agents, Soviet intelligence officers, communists and suspected communists including Russian and communist sympathisers.”

This week’s #tbt pick is a 2011 posting by the Archive’s Colombia Documentation Project director Michael Evans on the assassination of beloved Colombian journalist and political satirist Jaime Garzón.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

 

Secrets of the Cuban Missile Crisis

October 4, 2016

7thDuring recent decades more and more has been learned about the Cuban Missile Crisis, such as the Soviet tactical nuclear weapons in Cuba and the CIA’s deployment of saboteurs in Cuba at the time of the crisis.  Nevertheless, U.S. government agencies are still keeping significant elements of the history secret, including most of the agent reports on the deployment of Soviet missiles in Cuba. A recent case of excessive secrecy is the U.S. Air Force’s release of a massively excised history of the Strategic Air Command’s 7th Air Division, which controlled strategic bombers and reconnaissance aircraft in the United Kingdom.

During the Cuban Missile Crisis, SAC’s B-47 deployments in the UK figured in the total picture of the Command’s global nuclear alert. Besides the B-52 bombers that were on expanded airborne alert, SAC B-47 bomber forces, deployed in the United Kingdom, Morocco, Spain, and Guam, also went on alert.  These were the so-called “Reflex/ Air Mail” forces which were periodically rotated in and out of overseas bases, where specified numbers of bombers were on ground alert, ready for rapid launch.  A Strategic Air Command history declassified years ago provides useful detail on strategic bomber operations during the crisis, but histories of specific units and divisions would provide a granular view of SAC activities during the crisis. Towards that end, the National Security Archive’s nuclear project filed declassification requests with the Air Force for a number of its histories.

1962history

One of the requested histories is the 7th Air Division in the Cuban Crisis: A Study of Actions in the Emergency.  The entire document is hundreds of pages long, consisting partly of lengthy annexes of supporting documents and excerpts from published British parliamentary debates (Hansard).  Some interesting information was released, e.g. arrangements for landing of “post-strike” B-52 bombers on the bases after war broke out and a stand-down of U-2 flights at the height of the crisis, but important sections are heavily excised from the narrative that is the heart of the document.  Very little comes through about the B-47 deployments, much less that the bombers were nuclear armed.  While the above-mentioned SAC history indicates that bombers, including the Reflex forces, were nuclear ready, all such references have been withheld from the 7th Air Division history on the grounds that the information is “formerly restricted data,” exempt under the Atomic Energy Act.   Even the fact of the B-47 deployments and their numbers has been excised. An initial appeal led to the release of a few phrases and sentences but significant portions of the narrative remains classified (and the Air Force even scrubbed out a few words and phrases that had been previously declassified).

Despite the Air Force’s aversion to releasing information about its nuclear role in the United Kingdom during the Cuban crisis, the story cannot be kept wholly secret.  For example, a new book by Ken Young, The American Bomb in Britain: U.A. Air Force’s Strategic Presence, 1946-1964 (Manchester University Press, 2016) provides a concise account of the role of the SAC bases during the crisis in the context of a detailed history of the U.S. Air Force strategic nuclear presence in the United Kingdom.  Starting with the “atomic handshake” in June 1946 between Commanding General of the Army Air Forces Carl Spaatz and British Chief of Air Staff Lord Arthur Tedder, Young tells how the United States secretly installed atomic bomb loading equipment at Lakenheath and Sculthorpe airbases during 1946-1948.   This was the only instance when the United States acquired overseas bases on the basis of an “informal, unwritten agreement.”  By the summer of 1950, when the Korean War broke out, the Air Force was deploying atomic bombs (although initially without the fissile cores) at the bases, although British and U.S. records differ as to whether Prime Minister Clement Atlee was involved in the decision-making.

Young’s account sheds light on the complex problems that the U.S. presence posed for British defense policy, U.S. Air Force internal politics, Anglo-American diplomatic relations, and nuclear war planning.  His conclusions are especially interesting, for example, that British leaders showed a “lack of foresight in consenting to the [U.S.] acquisition of bases in 1946.”  Because of the informal nature of the base arrangements, British prime ministers found that they had no say over whether or how U.S. nuclear forces based in the United Kingdom would be used.  It was a sensitive, life or death issue; as British diplomat Evelyn Shuckburgh wrote to a British military representative in Washington: “His Majesty’s Government hope[s] the American Air Force will not go bombing the Russians from the United Kingdom without letting us know beforehand.”  Young provides a fascinating narrative of the complex and difficult interactions between British and U.S. defense officials, with the latter making half-hearted assurances about advance consultations in the event that war was imminent.

On the Missile Crisis itself, Young’s narrative is brief but to the point. The B-47 Reflex force deployed at the British bases, sanitized in the Air Force release, is central to the story. A week before the crisis, SAC had exercised B-47 forces: 8 minutes after the klaxons signaled an alert, 18 EWO (emergency war orders) bombers went airborne.  On 31 October, the Reflex force was strengthened and additional KC-97 tankers were deployed.  SAC kept the maximum number of bombers in EWO status by postponing non-essential maintenance and by assuring that any other work could be completed quickly enough so as not to interfere with bomber launch.  The B-47s stayed on a DEFCON 2 posture until mid-November; by 21 November they were on DEFCON 3.  The hallmark of the U.S. nuclear posture at the British bases during the crisis, Young observes, was its “unobtrusiveness” so as to avoid alarming the British public. This corresponded to the alert posture of British nuclear bomber forces, which was also low-key by design.

A pending appeal before the Interagency Security Classification Appeal Panel ought to lead to the declassification of more information from the 7th Air Division history.  This will be an interesting test of whether the Air Force is influential enough to prevent the declassification of such basic information as the number of alert B-47s at bases in the United Kingdom during the Cuban Crisis.

FOIA Requests Shed Light on Who is Being Deported, Police Abuse of Law Enforcement Databases, and More: FRINFORMSUM 9/29/2016

September 29, 2016
Source: ICE data from 11/2014-04//2016, Human Rights Watch.

Source: ICE data from 11/2014-04/2016, Human Rights Watch.

A FOIA request to Immigration and Customs Enforcement has won the release of documents that shed light on who is being deported – and the figures seem to contradict President Obama’s November 2014 pledge that deportation efforts would focus on dangerous criminals. The data, from November 2014 through April 2016 and analyzed by the Marshall Project, shows that of the more than 300,000 deportations that took place over that time period, “The majority — roughly 60 percent — were of immigrants with no criminal conviction or whose only crime was immigration-related, such as illegal entry or re-entry. Twenty-one percent were convicted of nonviolent crimes other than immigration. Fewer than 20 percent had potentially violent convictions, such as assault, DUI or weapons offenses.”

A series of FOIA requests sent by the Associated Press to state and local police departments, as well as the FBI’s National Crime and Information Center, shows that “Police officers across the country misuse confidential law enforcement databases to get information on romantic partners, business associates, neighbors, journalists and others for reasons that have nothing to do with daily police work.” There is no national agency that tracks how often abuses of this nature occur, and responses to AP FOIA requests were spotty at best.

A Motherboard FOIA request has revealed that many of England’s National Health Service hospitals are running thousands of computers – storing patient data that hospitals are obligated to take reasonable measures to keep safe – using outdated and unsupported Windows XP software. Microsoft stopped supporting Windows XP in April 2014, “meaning that the company would no longer release security patches for the aging operating system. Any vulnerabilities discovered after that date would therefore be left for hackers to exploit.” Three of the NHS hospital trusts Motherboard submitted FOIA requests to issued Glomar responses – refusing to either confirm or deny they had any responsive records, “claiming it would jeopardise the health and safety of their patients.”

The State Department has agreed to process nearly 3,000 pages of Clinton emails for release, with releasable portions posted to the State Department’s website, by November 3. The new number more than doubles the original court-ordered page release of 1,050 in relation to a FOIA lawsuit filed by Vice News’ Jason Leopold. Politico’s Josh Gerstein notes that the agreement “also allows State to count toward its processed pages messages that are referred to other government agencies for review” – meaning that if documents are referred, the total posted to State’s website will be shy of 3,000.

Federal Judge Rosemary Collyer recently ruled that the government may withhold information in response to a FOIA request from the James Madison Project that “would show why the government opposed the release of the book by Matt Bissonnette that chronicled the mission that killed bin Laden.” The complaint argued that the CIA, the Department of Justice (Civil Division), the Department of Defense, the Executive Office for the U.S Attorneys, the Navy, and the Defense Intelligence Agency, all inappropriately ignored or withheld documents under FOIA. In her ruling, however, the judge upheld: the Justice Department’s Civil Division Glomar invocation – despite the very public nature of the documents; the CIA’s argument that releasing the records would shed light on its investigative techniques; and found the Navy’s arguments that it never received the request – and therefore had done nothing wrong – credible.

The CIA recently denied the release of records on fictional United States Information Agency journalist Guy Sims Fitch – whose editorials promoting private American foreign investment overseas as a bulwark against Communism appeared in countries from Australia to Brazil during the 1950s and 1960s. The CIA denied the documents citing personal privacy – presumably not for Fitch, but for the journalists and editors who wrote under Fitch’s name for the propaganda agency. The CIA told FOIA requester Matt Novak that in order to respond to his request, he must submit either proof of death of those who wrote under Fitch’s name, or verify the identities of those still living and provide documents proving they consent to having their information made public.

An article from 1965, written by editors at the USIA for consumption by the German public under the name Guy Sims Fitch. Source: PaleoFuture

An article from 1965, written by editors at the USIA for consumption by the German public under the name Guy Sims Fitch. Source: PaleoFuture

The City Council in Calgary, Alberta voted to examine a Freedom of Information and Protection of Privacy policy that would post FOIA processed documents online for all – not just to the person who requested the documents. The proposal – which, very troublingly, was introduced by City Councilwoman Diane Colley-Urquhart to “discourage reporters from filing so many requests” – has drawn backlash from journalists who argue that such a policy is a disincentive for filing FOIAs because they could lose their scoop. The arguments are similar to those made by some journalists in the US. The National Security Archive maintains that “the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole.” The Archive has long been open to compromise, however, allowing for the possibility of a “release to one, release to all” method which provides for the online posting of FOIA-processed records with a short, built-in delay. Earlier this month Reporters Committee for Freedom of the Press released the results of its survey on journalists’ opinions about a “Release to One, Release to All” FOIA policy. Adam Marshall summarizes that, “While a quarter of respondents supported the policy unconditionally, almost 60% support it only with conditions, such as a delay period. Only 13 out of more than 100 respondents who self-identified as journalists do not support the policy at all.”

Steve Aftergood reported that the Intelligence Community will be giving out a new award “for certain kinds of dissidents and whistleblowers.” The news comes a week after the DOD Inspector General report on whistleblower reprisal cases as Fort Meade. Aftergood posits that “Whether or not the IC intends to celebrate its own internal critics, it seems to want to encourage and now incentivize them, providing improved channels for dissent and whistleblowing that will not inevitably be career-enders or needlessly disruptive in other ways.” The Electronic Frontier Foundation also reported this week that FOIA requests showed that “even when Congress allowed agencies to offer cash rewards to government employees to be less secretive, nobody has been collecting the money.”

A CIA special intelligence assessment in 1987 concluded that Chilean General Augusto Pinochet ordered an “act of state terrorism” on the streets of Washington, D.C., that took the lives of former Chilean diplomat Orlando Letelier, and his 25-year-old colleague, Ronni Moffitt, forty years ago this week. The CIA report, along with other documents, were handed over to Chilean President Michelle Bachelet by Deputy Secretary of State Heather Higginbottom during a somber 40th anniversary commemoration today at Sheridan Circle – site of the car bomb assassinations in 1976 – last week and were posted online by the Archive. “This CIA evaluation has come to be considered the Holy Grail of the Letelier-Moffitt case,” according to Peter Kornbluh who directs the Archive’s Chile Documentation Project. “With this gesture of declassification diplomacy, the Obama administration has finally provided the missing link in the paper trail of evidence that leads to Pinochet’s doorstep.”

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The Archive’s FOIA Project Director and Able Archer 83 expert Nate Jones will be giving a special presentation at the Wilson Center on October 20 for his new book, Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War. Jones has spent well over a decade fighting for the release of records on “this close scrape with Armageddon,” achieving front-page news last October when the US government released a ninety-four-page presidential analysis of Able Archer that Jones and the Archive had working to get declassified. The presentation will also feature commentary from Archive Director, Tom Blanton.

This week’s Cyber Vault update includes a document of special significance. The document is a 2001 US Space Command (USCINCSPACE) report, entitled “Implementation Plan for Computer Network Operations,” that was produced to implement a key milestone in the evolution of US military cyber operations – the merger of cyber defense and computer network attacks activities under a single commander. Of particular note in this document is the policy guidance section (pp. 1-4 to 1-5), which provides information on additional key documents – that the National Security Archive is filing follow-up FOIA requests for, and the intelligence section (pp. 2-1 to 2-5), which provides a good description of the assorted intelligence tasks related to CND and CNA operations.

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This week we celebrated the 14th annual International Right to Know Day by highlighting a sampling of stories – selected from a much longer list curated by Toby McIntosh at FreedomInfo.org – that made news this year thanks to people capitalizing on RTK laws in 113 different countries. These stories include:

  • India’s public records law revealed that thousands had contracted HIV through hospital blood transfusions, and attention from the story forced the government to pledge to improve blood safety screenings and introduce technology to ensure zero HIV transmission,
  • A Pakistani newspaper used RTK laws to show a dangerous lack of doctors in the Punjab, compelling the government to publicly promise to fill the vacancies, and
  • The Jamaican FOI law helped citizens hold the government accountable after a building collapse.

Visit FreedomInfo.org for more.

If you are a recent college or graduate school alumnus – or are soon to be one – who is looking to work on international peace and security issues in DC, check out the Scoville Peace Fellowship. The deadline to apply is October 7, 2016.

This week’s #tbt pick is a 2008 posting on the Soviet plan to destroy Guantanamo. The posting documents – which were also featured in Michael Dobbs’ One Minute to Midnight – show that US intelligence identified the Soviet nuclear-tipped cruise missiles geared to destroy the naval base as “unidentified artillery” pieces, when they were actually armed with Hiroshima-sized nuclear devices.

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Happy FOIA-ing!

 

Declassified Damage Assessments May Shed Light on IC’s Snowden Assessment: FRINFORMSUM 9/23/2016

September 23, 2016

915The debate over a presidential pardon for Edward Snowden intensified after the House Intelligence Committee sent President Obama a “startling” September 15 letter that called Snowden a criminal and argued that a pardon would “severely undermine America’s intelligence institutions and core principles.” The letter, which was roundly criticized for perpetuating “numerous false statements and misrepresentations,” and the ensuing debate, is adroitly summarized and analyzed by Steven Aftergood  (who also has an interesting read on President Clinton’s 2001 pardon of Samuel Morison, a Navy intelligence analyst who was convicted under the Espionage Act in 1985 for leaking classified satellite imagery to Jane’s Defence Weekly).

The September 15 House letter was accompanied by a three-page unclassified executive summary on Snowden’s disclosures that argues, among other things, Snowden was not a whistleblower but “was, and remains, a serial exaggerator and fabricator.” The letter also references the Intelligence Community’s still-classified damage assessment of a portion of the documents leaked by Snowden.

Several high-profile damage assessments of classified information leaks have been declassified by the IC, and may shed light on the Snowden assessment. The National Security Archive obtained the CIA’s 1987 damage assessment of Jonathan Pollard; MuckRock posted the Edward Lee Howard damage assessment; the Aldrich Ames damage assessment is available here; and Robert Hanssen’s here.

2006 CIA release on the left, ISCAP 2012 release on the right.

2006 CIA release of 1987 damage assessment on the left, ISCAP 2012 release on the right.

Aftergood’s analysis of the pardon debate also points out that, with its letter, the House Intelligence Committee missed an opportunity to assess its own role in the Snowden leaks. Daniel Schuman, policy director at Demand Progress, argues that if the Committee had “held up a mirror,” it would have seen that congressional reform is needed to ensure that the “cycle of revelation, scandal, and failure” does not repeat itself. Demand Progress, R Street, Freedom Works, and the Electronic Frontier Foundation published a bipartisan white paper last week that would be an excellent road-map for the committee’s self-evaluation. The paper lays out realistic, actionable reforms that could be taken to strengthen congressional oversight of the IC, including the establishment of “secure mechanisms for whistleblowers to talk to members of Congress” and the creation of a congressional whistleblower ombudsman. (As Nate Jones pointed out last week, it also contains important improvements for the declassification of congressional records.)

The 7th Circuit Court of Appeals ruled in favor of the Reporters Committee for Freedom of the Press in its quest to unseal the 1942 Chicago Tribune grand jury transcripts from a Department of Justice effort to prosecute the paper for publishing classified government information, which is the only time the government has attempted to prosecute the mainstream press under the Espionage Act of 1917. In 1942 the Tribune published a series of stories, based on leaked information, inferring that the U.S. broke a secret Japanese code that significantly assisted the U.S. Navy in winning the Battle of Midway. The National Security Archive joined the filing – with senior Archivist John Prados submitting an affidavit.

Tom Steinberg of CIVICIST recently – and correctly – argued that former White House Office of Information and Regulatory Affairs Administrator Cass Sunstein’s calls for less input transparency  (roughly defined as policy discussions) and more output transparency (roughly defined as regulatory information people can use in their daily lives) misses the mark on what kind of information the government should make public. Sunstein has been on the receiving end of criticism from the National Security Archive and others in recent years for his backwards stance on transparency: in 2014 he criticized an uncontroversial, bipartisan, bicameral  FOIA reform bill – that eventually died – that aimed to curb FOIA’s oft-abused Exemption 5 (which exists to protect “input transparency” and remains one of the most abused FOIA exemptions around), and recently told a packed house at Columbia School of Journalism’s FOIA @ 50 conference that input transparency is “often a bad idea, certainly isn’t a great idea.”

Sunstein’s call for less transparency has, unfortunately, gained traction, including from the Atlantic’s Jonathan Rauch and Vox’s Matthew Yglesias.

Nate Jones recently penned a rebuttal to some of these arguments, including highlighting just a few important news stories made possible by “input” transparency – like emails from Flint, Michigan that exposed both the cost-driven decisions not to add corrosion controls to Flint water supply, and the cover-up to hide the grave mistake, and an email from the State Department’s Press Secretary to the Secretary of State boasting of how the Department successfully “planted” questions on 60 Minutes. Jones’s rebuttal also cites the must-read defense of transparency authored by Gary Bass, Danielle Brian, and Norman Eisen.

"...Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs."

“…Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs.”

Archivist of the United States David Ferriero sent the FOIA Federal Advisory Committee’s recommendations on updating outdated FOIA fee guidance to the Office of Management and Budget. The Archivist’s letter follows the committee’s April 19 vote to recommend that OMB update it’s three-decade-old guidance that is currently missing a key word.

U.S. District Court John McConnell, Jr. recently ordered the Drug Enforcement Administration (DEA) to release thousands of pages of evidence from one of the largest prescription drug trials in American history in response to a FOIA lawsuit brought by Providence journalist Philip Eil. Eil filed a FOIA request in 2012 with the DOJ’s Executive Office of U.S. Attorneys for the federal trial evidence used to convict Dr. Paul Volkman, deemed by the DOJ to be the “largest physician dispenser of oxycodone in the United States from 2003 to 2005,” and who received four consecutive life sentences as a result of the trial. The DOJ transferred the request to the DEA eight months after receiving Eil’s request, at which point the DEA “began to review 15,000 pages and over time processed portions of them, releasing about 1600 pages to Eil and redacting much of the information under” FOIA Exemption 7. Eil was forced to file suit over the egregious withholdings, and while Judge McConnell’s ruling is “a ringing endorsement of the public’s right to know and the importance of an open judicial process,” Eil should never have had to wage a dogged, four-year fight for the documents in the first place. Hopefully the ruling will encourage the DEA and other agencies to fulfill their obligations under the FOIA after receiving a request, not after being sued.

The National Security Agency has released a 72-page monograph on nearly 100-year-old SIGINT information. Many thanks to Matthew Aid for highlighting “Issues in British and American Signals Intelligence, 1919-1932,” which “provides an excellent overview of the relative importance of SIGINT during World War I.”

The Archive’s Peter Kornbluh has written an opinion piece for the Washington Post on “Why the Obama administration is giving old state secrets to Latin American allies.” Kornbluh argues that, “Alongside the traditional instruments of statecraft, the Obama administration has developed an entirely new tool: declassifying decades-old secrets of state to share with other governments and their societies. President Obama has used this declassification diplomacy to mend fences with other countries, advance the cause of human rights and even redress the dark history of Washington’s support for repression abroad. Allies are grateful and historians are delighted. And given the depth and range of still-secret U.S. Cold War records, declassified diplomacy has the potential to go much, much further.” Read the rest here.

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Happy FOIA-ing!

 

Congress Needs to Declassify Its Records, Too FRINFORMSUM, 9/15/2016

September 15, 2016
These secrets need to be declassified too.

These secrets need to be declassified too.

[Ed. Note: Pinch Hitting again for Lauren this week.  Will do my best!]

This week, the National Security Archive joined over thirty organizations calling for strengthening congressional oversight of executive branch intelligence activities.  The strategy and tactics for this strengthening are laid out in an excellent bipartisan white paper drafted by Demand Progress, The Electronic Frontier Foundation, R Street, and FreedomWorks.  The white paper argues that the best, most realistic method  to achieve this reform is to update the rules of the House Permanent Select Committee on Intelligence (HPSCI) at the outset of the 115th Congress.

Read the white paper for a briefing on the abundance of achievable rules changes that the House could make to increase intelligence oversight.  I want to flag four of the paper’s reforms that are near and dear to the Archive, and should be pushed by all historians and document hounds.

•Regularly—and no less frequently than every two years—oversee declassification reviews of closed-session transcripts and publish them;

• Establish a process to review and process historical records for declassification;

• After 25 years has elapsed, apply the procedures outlined in the Executive Order on Declassification to the Congressional Record and classified legislative histories; and

• Publish current and historical reports on Committee activities online.

For more on Secret Sessions, see Unredacted’s So What Does Congress Talk About During Its Secret Sessions?

DOJ Civil's enthusiasm for defending government withholdings is disturbing and costly.

DOJ Civil’s enthusiasm for defending government withholdings is disturbing and costly.

The Government Accountability Office has released a report on FOIA litigation costs, which included several startling facts.  First, GAO reported that the DOJ, responsible for  “oversee[ing] agencies’ compliance with FOIA requirements,” does “not track any expenses related to FOIA lawsuits” –as their case management systems apparently “were not designed” to do so.  (Seventeen agencies could provide GAO with this information.)  As such, GAO was forced to use other, public data to complete its study, including data from the indispensable FOIA Project. 

According to the report, there were 1,672 Freedom of Information Act (FOIA) lawsuits between 2009 and 2014.  Of these, GAO identified 112 where the plaintiff substantially prevailed.  (It’s important to note that just because a plaintiff does not “substantially prevail” does not mean they did not “win;” very often, agencies, realizing their position is untenable, agree to release documents after they are sued but before a judgement is made.

According to the report, “For fiscal years 2009 through 2014, [] agencies collectively reported costs totaling $144 million for all of the FOIA lawsuits that they defended.”  And if you read the report closely, it appears likely that this number is an underestimation by the GAO.

So, to summarize: If someone at DOJ had decided that these 112 cases were fiscally or morally indefensible and simply released the information when it was requested, rather than fighting and losing a lawsuit before releasing the documents anyway, taxpayers’ coffers would be at least $144 million dollars fuller.

This week DOJ published its Template for Agency FOIA Regulations.  They will need a thorough scrub from the requester community to ensure that the recommended language complies with the law and is in step with the President’s and Attorney General’s guidance on FOIA.

On first blush there appear to be major problems with the DOJ’s section on FOIA fees, which diverges far from the principles recommended by the Federal FOIA Advisory Committee in April, 2016.  From my reading, the DOJ’s guidance appears to present fees as a cudgel to deter FOIA requests, out of step with the Presumption of Openness. The Template presents an overly strict definition on “news media,” not stipulating that online-only sources qualify; they do not recognise that FOIA fees cover less than one percent of the reported FOIA cost; and they do not advise that agencies may use their administrative discretion (rather than a formal fee waiver) to decide not to charge FOIA fees when in the interest of the United States Government.

It would be a great tragedy if agencies updated their regulations (as required by the FOIA Improvement Act) to actually inhibit the public’s right to know.

Troublingly, according to Adam Marshall, two agencies have already updated their FOIA regulations without providing for public comment.

Some dox:

partial

91 percent!

A “partial release.”  It’s important to remember that when a DOJ or other Obama official cites a “91 percent whole or in part” FOIA release rate, this, and millions of pages like it, is counted as a “release in part.”  The government also does not count requests denied over fees, referrals, “no records” responses, and requests “improper for other reasons” in this dubious statistic.

 

Tapes?

Tapes?

Here is an index of some of Secretary of Defense Donald Rumsfeld’s meetings in 2003.   It’s unclear to me what exactly the “tapes” refer to.  All are FOIA or MDRable…

odni

In theory.  Astonishingly, the ODNI makes the claim that it has “no documents” related to any of the widely reported March, April, and May 2011 National Security Council meetings where the potential location of Osama bin Laden was discussed.  Either the ODNI FOIA shop is incompetent (though the FOIA response signatory, Jennifer Hudson, assures us that additional searches were conducted “to verify the accuracy” of the denial), or the US government has successfully snubbed its nose at the public’s right to know, and conspired to put these documents behind the reach of FOIA –-probably by transferring ODNI documents to the CIA, which can claim the “Operational Files Exemption” to hide them forever.  The legality of this transfer is certainly legally dubious.  I wonder if IContheRecord will be willing to explain why it cannot find documents about this critical moment in history.

And some exciting news!  Mark your calendars for November 2, at 3:00 ET.  I’ll be doing an Ask Me Anything on Reddit, talking about my new book on Able Archer 83, the National Security Archive, FOIA, secrets, and anything else!

Finally, here’s a #TBT to one of my favorites, Acoustic Kitty.