The National Archives and Records Administration is accepting comments on what people think should be in their next Open Government Plan. NARA has done a very good job improving its services to greater benefit the public over the last few years. This includes expanding its easy-to-use online catalog (especially the user annotations and tagging!) and establishing the History Hub, a type of message board where NARA employees quickly field queries from the public. Other federal agencies would do very well to follow NARA’s lead in encouraging and expanding public engagement.
While the innovations described above are valuable and necessary, the actual, physical act of providing the public access to records that were once classified or unavailable remains the essence of Open Government. The comments and suggestions below from the National Security Archive therefore focus on what needs to be a primary focus of the Open Government Plan — declassification.
Ramp Up and Expand the National Declassification Center
The National Declassification Center must continue improving its release rate of declassified documents to as high as possible; it is not yet “releasing all it can.” The Center has clearly made gains —not least of which is “indexing on demand,” where the NDC provides records that were previously inaccessible to researchers within days— but to become President Obama’s successful flagship initiative, the NDC must continue to improve. As the Public Interest Declassification Board has recommended, “wasteful, expensive” pass fail review and unnecessary equity referrals need to end as soon as possible.
A survey by the Society for Historians of American Foreign Relations confirms widespread desire for more of a NARA-led focus on promoting efficient and credible declassification. Seventy percent of 784 researchers surveyed described the importance of declassified documents to historical research as “very important and indispensable,” another fourteen percent described declassified documents as “important and necessary.” But twenty eight percent of the respondents described the availability of declassified documents at NARA as “very worrisome” or “disappointing.”
The National Archives and National Declassification Center should work to be standard-bearers of the “3.1 (d) Public Interest Test.” Section 3.1(d) of Executive Order 13526 is the provision that allows agencies to declassify documents even if they are technically “properly classified” –like the Pentagon Papers or the the History-101 fact that there were Jupiter missiles in Turkey during the Cuban Missile Crisis.
To do this, NARA’s Open Government Plan should formally adopt the Director of National Intelligence James Clapper’s and DNI General Counsel Bob Litt’s instruction to declassify historic documents even when they may be technically “properly classified.” Two Sunshine Weeks ago, Litt stated that those with classification and declassification authority must ask themselves “not can we classify, but should we?” Litt pointed to Section 3.1 (d) of the Executive Order on Classification 13526, and claimed that declassifiers of historic documents should already be using this authority. In practice, however, they are not.
Section 3.1 (d) states: “In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”
The National Declassification Center’s still too low but rising declassification rate of 59 percent for documents 25 years old or older is an indicator of over-classification and under-reliance of the “public interest declassification clause” at NARA itself. NARA’s next Open Government Plan could remedy this problem by establishing a procedure so that declassifiers at NARA, including the National Declassification Center, can easily request that EO 13526 section 3.1 (d) be used to declassify technically “properly” classified information that is in the public interest and no longer needs protection.
Declassify the Presidential Libraries
After the National Declassification Center has established its bona fides of as having the highest declassification rate of any entity in the federal government, it should focus on ending the backlog at the Presidential Libraries. Currently when a user submits a FOIA to the Libraries, they must wait (often years) only to be told that the documents they requested are classified and need to be requested again under Mandatory Declassification Review (MDR), which also often takes years!
The NDC is nearing the perfect position to systematically and proactively declassify the documents of all Presidential Libraries without forcing customers to submit painstaking FOIA and MDR requests.
NARA has spent great effort asking the public which documents it should prioritize the declassification of. The answer is the highest level documents, the documents at the Presidential Libraries.
Additionally, I suggest that Presidential Libraries should constantly update their finding aids online, providing customers with exact data on which collections are now open, which are still secret, and when the public will likely be allowed to access them.
Celebrate the Release of the Final JFK Assassination Records
NARA’s next Open Gov plan should herald and celebrate NARA’s role in finally releasing the remaining 41,000 JFK assassination documents. NARA should frame the issue not so much as a legal requirement, but as celebration that it is finally able to release these extremely-frequently requested documents to the public. NARA should also point out that many of the records released under the JFK Assassination Records Act could have been withheld as “properly classfied” under the current classification regime. Their release (and similar releases by the the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group) show that many historic records that are technically classified can be released to the public with great benefit and minimal harm.
As it celebrates the final release of the JFK Assassination records, NARA’s Open Government Plan would also do well to reexamine some of the recommendations made by the Assassination Records Review Board, including the fact “that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task.”
Call the Torture Report What It Is: a Federal Record
Finally, the next Open Government Plan should establish the mechanism for the Archivist of the United States to use the power granted to him by the Presidential and Federal Records Act Amendments of 2014 to “direct and effect the transfer of records of a Federal agency determined by the Archivist to have sufficient historical or other value to warrant their continued preservation by the United States Government to the National Archives of the United States.”
As the National Security Archive has written, it is extremely troubling that the Archivist has not already done this for Senate Intelligence Committee’s full report on the Central Intelligence Agency’s use of torture. According to a November 5, 2015 letter written by Senators Patrick Leahy of Vermont and Dianne Feinstein of California, “personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the study constitutes a federal record under the Federal Records Act because the FOIA case is pending.”
Even if it cannot currently be declassified, the Senate Report on Torture –which was transferred from the Senate to executive branch agencies– is clearly a federal record, and, more than that, an important record of the history of the United States.
The Presidential and Federal Records Act Amendments of 2014 explicitly granted the Archivist the power to declare documents like this federal records (even if they cannot currently be released to the public). He should do the right thing, establish the authority of the National Archives to use this power, and declare the Torture Report a federal record –even if it complicates a DOJ FOIA case.
Without this act, many will question the sincerity of the National Archives’ commitment to the essence of truly Open Government.
The National Archives Should Establish Itself as the Principled Leader on Declassification
The National Archives is America’s largest repository of classified documents, and is also the institution best situated to force the enactment of President Obama’s Open Government classification reforms –described in both Open Government Partnership National Action Plans, his Executive order on Classification, and his Memo establishing procedures at the National Declassification Center.
NARA is also home to the Sunlight-promoting Office of Government Information Services, Information Security Oversight Office, and Interagency Security Classification Appeals Panel –which overrules agency classification decisions in over 68 percent of its cases.
The US National Archives has a major role to embrace in improving the declassification system in America. It should use its next Open Government Plan to establish itself as the federal government’s principled leader on declassification.
Privacy Oversight Chair Steps Down Two Years Early, ODNI Adamant Intel Sharing Plan Doesn’t Violate 4th Amendment, and More: FRINFORMSUM 3/31/2016
David Medine, chairman of the Privacy and Civil Liberties Oversight Board (PCLOB) – an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties – is stepping down two years before the end of his contract for a position in the private sector. PCLOB has made a number of important contributions to the surveillance debate, including last year publishing a chart “on how U.S. intelligence agencies use a Reagan-era executive order  to collect Americans’ private information,” that shows most agency guidelines are woefully outdated. “Most agencies have not revisited their handling of data collection since the early 2000s, and in some cases not since the 1980s.” A 2014 PCLOB report found that the National Security Agency’s (NSA) surveillance of foreign communications is lawful, but that elements of Section 702 come “close to the line” of being unconstitutional.
The Washington Post’s Ellen Nakashima reported in June 2015 that Republicans on the House Intelligence Committee advanced a provision to the 2016 intelligence authorization bill that would block 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 Medine arguing 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.”
Director of National Intelligence (ODNI) James Clapper recently responded to a March 21 letter from Representatives Ted Lieu (D-Calif.) and Blake Farenthold (R-Texas), which voiced concerns that a proposed intelligence sharing plan would “violate Fourth Amendment privacy protections because the collected data would not require a warrant before being searched for domestic law enforcement purposes.” Clapper assured the representatives that the NSA’s plan of sharing “unevaluated signals intelligence” with other agencies would be lawful and not violate privacy rights of US citizens.
ODNI General Counsel Bob Litt built on Clapper’s arguments in a recent article for Just Security. Litt says the proposed changes do “not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes.”
Steve Aftergood reports that the Obama administration has begun its second Fundamental Classification Guidance Review “in an effort to eliminate obsolete classification requirements and to reduce national security secrecy.” The first review, which took place from 2010-2012, reduced the DOD’s non-compartmented security classification guides by 20%. Aftergood notes that environmental changes, congressional disclosures, FOIA requests, and leaks can all make even good classification guidance obsolete; “Faced with this growing disconnect between a realistic threat appraisal and the information security response, the Fundamental Classification Guidance Review represents the secrecy system’s own attempt at self-correction.”
How do you prevent a cyber “Pearl Harbor”? This is the question former NSA head Keith Alexander left open-ended in a 2012 document, in which he noted “Adversaries are only 12-18 months away from having the capability to conduct a cyber Pearl Harbor against the U.S.” This intriguing record is just one of many available in the National Security Archive’s newly-launched Cyber Vault, an online resource documenting various aspects of US government cyber activity, including hacking and defenses against hacking, cyber intelligence, and cyberwar.
Another gem from the Vault is an October 2011 report authored by the National Counterintelligence Executive on Foreign Spies Stealing US Economic Secrets in Cyberspace. This report, produced by an ODNI component, consists of three major sections. One is the vulnerability of US technologies and trade secrets to cyberspace operations and the appeal of cyberspace collection. Another examines the threat from specific collectors, including Russia, China, and US partners. The third provides an outlook for the future, divided between sections on “near certainties” and “possible game changers.”
Directed by Jeffrey T. Richelson, an international expert and widely published author on intelligence and national security issues, the Cyber Vault project will add to its holdings on a regular basis. All materials will be fully searchable and permanently stored on the project site.
The FBI submitted a classified declaration to a federal judge in connection with a Vice News FOIA lawsuit for records concerning Hillary Clinton’s email that addresses, among other things, why the bureau can’t reveal any details about its investigation into Clinton’s email usage. The FBI’s FOIA chief, David Hardy, submitted a separate public declaration noting that, while the FBI has a number of exchanges with the State Department concerning Clinton’s email and server arrangement, any release would adversely affect the FBI’s investigation. The FBI also requested that the court dismiss Vice’s lawsuit “on grounds that the documents it does have about Clinton’s private email server are located in files pertaining to a pending investigation that is exempt from disclosure because their release would interfere with active law enforcement proceedings.”
The FBI currently has dozens of personnel working on the investigation, which The Washington Post reports has accelerated in recent months to “avoid the possibility of announcing any action too close to the election.”
The Post also notes Judge Emmet G. Sullivan’s growing frustration with the State Department’s response to a separate FOIA lawsuit for records related to Clinton in a long and worthwhile read on the evolution of the email fiasco. In February Sullivan allowed Judicial Watch to pursue discovery of Clinton’s aides regarding her email use after finding that there was “reasonable suspicion” that Clinton and her aides tried to evade FOIA; discovery is an uncommon practice in FOIA lawsuits, but one that can include legal depositions. Sullivan said, “We’re talking about a Cabinet-level official who was accommodated by the government for reasons unknown to the public. And I think that’s a fair statement: For reasons heretofore unknown to the public. And all the public can do is speculate,” going on to say “This is all about the public’s right to know.”
U.S. District Court Judge Royce Lamberth followed Judge Sullivan’s example and this week granted Judicial Watch discovery in another suit in pursuit of “details about how Hillary Clinton’s private email account was integrated into the State Department recordkeeping system and why it was not searched in response to a Freedom of Information Act request.” Lamberth cited the government’s wrongdoing and bad faith in his ruling, and chastised the “constantly shifting admissions by the Government and the former government officials.”
Radovan Karadžić, the former President of Republika Srpska (RS) and Supreme Commander of its armed forces, was recently convicted of genocide, crimes against humanity, and violations of the law of war by the International Criminal Tribunal for the former Yugoslavia (ICTY). The National Security Archive’s Genocide Documentation Project worked tirelessly for three years to assemble a cohesive collection of declassified documents to map the atrocities committed in Srebrenica, Bosnia and Herzegovina in July 1995. Now 70 years old, Karadžić was sentenced to 40 years’ imprisonment for the war crimes committed by the Serb forces he led in the conflict in Bosnia from 1992 to 1995.
When asked how dozens of trips in a Pentagon-provided car service to and from restaurants helped accomplish the Defense Intelligence Agency’s (DIA) mission, former DIA deputy director David Shedd explained to the Defense Department inspector general that “the food at the DIA cafeteria was poor.” The DOD IG report – obtained by The Washington Post under the FOIA – found Shedd abused a Pentagon vehicle service to the point it “could be characterized as a personal limousine service based solely on reasons of rank, position, prestige or personal convenience.” Shedd, a career-CIA officer who was hired by the DIA to improve its human intelligence capabilities, brushed the report off as “an IG run amok.”
This week’s #tbt pick is a December 2000 memo obtained and published by the Archive that shows the NSA has been pushing to “rethink and reapply” its application of the Fourth Amendment since before 9/11. This was necessary, it argued, to attain a “powerful, permanent presence on a global telecommunications network.”
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New Cyber Vault Will Acquire and Publish Primary Documents on All Aspects of Cyber Activity“Trusted insiders” were a large point of concern in 2008’s The United States Government-Wide Cyber Counterintelligence [CI] Plan, a heavily-redacted Top Secret/SI/NOFORN document authored by the National Counterintelligence Executive, the Office of the Director of National Intelligence, and the Justice Department. Two years before Chelsea Manning and WikiLeaks made headlines, the Cyber CI Plan — which was obtained through a Freedom of Information Act (FOIA) request — notes that, “Trusted insiders can steal information electronically or facilitate remote access to unprecedented amounts of data and they may be ideally positioned to inflict devastating damage to U.S. Government networks through espionage and/or sabotage.”
Privacy protections were also a stated priority; the document makes clear that to protect US citizens’ privacy and civil liberties, “each participating organization…will consult with offices of general counsel and privacy and civil liberties officers, as appropriate, to ensure compliance with law and with Attorney General approved guidelines safeguarding U.S. persons.”
The core of the prescient document discusses the six objectives of the government’s Cyber CI program. Two of the objectives are redacted from the document; the four objectives that are disclosed include: detecting, deterring, disrupting and mitigating internal and external cyber threats through defensive counterintelligence; strengthening collaboration on cyber issues by, among other things, sharing CI information at the lowest classification level possible; conducting all-source counterintelligence analysis; and establishing and expanding cyber counterintelligence education awareness programs.
The 2008 Cyber CI plan is just one of the newly-published documents researchers can find in the National Security Archive’s Cyber Vault – an online resource documenting various aspects of US government cyber activity, including hacking and defenses against hacking, cyber intelligence, and cyberwar. The Vault also includes documentation on foreign government and international organizations’ cyber activities. Currently numbering more than 150 curated items, the list will grow with new additions on a weekly basis.
The documents in the Vault’s holdings include US government documents that have been pried loose and made publicly available thanks to systematic use of the FOIA and Mandatory Declassification Review process by Archive staff – led by Dr. Jeffrey Richelson, who directs this new project. Additional primary sources come from industry, academia and other cyber actors – all materials are searchable in this robust online publication in permanent open access formats.
Other documents found in the Vault include a set of Top Secret/COMINT/NOFORN April 12, 2013, talking points, entitled, “Topic: Iran – Current Topics, Interaction with GCHQ,” prepared for National Security Agency (NSA) head Keith Alexander. The talking points, which note that “our posture on Iran will serve us well going into any crisis or Event,” were created before Alexander’s meeting with the head of the United Kingdom’s Government Communications Headquarters, and includes a section devoted to Iranian cyber-attacks on US financial institutions and Saudi Arabian oil company, Aramco. Regarding the Iranian attack on Aramco, the document says that while it was the first such attack Iran carried out, that Iran “demonstrated a clear ability to learn from the capabilities and actions of others.”
An earlier unclassified memorandum, dated March 23, 2012, and authored by Alexander, is his strategic assessment for operating in cyberspace and “Preventing a Pearl Harbor Environment.” In the memo Alexander provides his perspective concerning the prospects of a cyber “Pearl Harbor” and discusses the risks of failure in the cyber domain, his assessment of why the US could not prevent a major cyber-attack, what an adversary would need to conduct such an attack, and what would be required to prevent a major attack. Alexander argues that the US is not currently prepared to prevent a major cyber-attack, noting later “Adversaries are only 12-18 months away from having the capability to conduct a cyber Pearl Harbor against the U.S.”
Another secret document, an article entitled “Thinking Out Loud About Cyberspace” written by senior NSA official William Black and published in Cryptolog, XXIII, 1 (Spring 1997), notes that the NSA was assigned the mission of computer network attack in March 1997, and argues that the world was on the verge of a new age — “the information age” — and that the future of war would be warfare in cyberspace. The article also expresses confusion that the public could see the government as a threat; “Specifically, the focus is on the potential abuse of the Government’s application of this new information technology that will result in an invasion of personal privacy. For us, this is difficult to understand. We are the ‘government,’ and we have no interest in invading the personal privacy of U.S. citizens. Regardless, the public’s concerns are real and have an impact upon us.”
Bosnian Serb Leader Karadžić Convicted of Genocide; National Security Archive Document Collection Maps Atrocities
By Sarah Chaney Reichenbach
The Archive’s Genocide Documentation Project worked tirelessly for three years to assemble a cohesive collection of declassified documents to map the atrocities committed in Srebrenica, Bosnia and Herzegovina in July 1995. Today, Radovan Karadžić, the former President of Republika Srpska (RS) and Supreme Commander of its armed forces, was convicted of genocide, crimes against humanity, and violations of the law of war by the International Criminal Tribunal for the former Yugoslavia (ICTY). Now 70 years old, Karadžić was sentenced to 40 years’ imprisonment for the war crimes committed by the Serb forces he led in the conflict in Bosnia from 1992 to 1995.
While the Karadžić will most likely live out the remainder of his years imprisoned in the Hague, critics argue the sentence is far too short for the number killed under his leadership. Among the charges brought against him, Karadžić was convicted of genocide for the 1995 Srebrenica massacre, which culminated in the slaughter of more than 8,000 Muslim men and boys in the United Nations-designated “safe area.” He is also being held responsible for the 1,425-day siege of the Bosnian capital of Sarajevo, the longest in modern history, which led to the death of over 11,000 Bosnians. Karadžić’s 40-year sentence is shortened by the eight years he has already served since his arrest. This amounts to a 32-year sentence for the death of nearly 20,000 people, or about 15 hours served for each victim.
Since his arrest in 2008, Karadzic has proclaimed his innocence, arguing that rogue individuals outside of his control committed atrocities for which he should not be held responsible. It has been the prosecution’s responsibility to “draw a direct line of culpability from the men who committed crimes on the ground to [Mr. Karadžić] in person.”
The National Security Archive’s Genocide Documentation Project’s Srebrenica collection contains documents from multiple sources alluding to Karadžić’s involvement in the war crimes carried out by his followers, including some that speculate why he might maintain his innocence in the face of an eight-year trial.
A September 5, 1995, secret intelligence report from the CIA explains perhaps why Karadžić denied responsibility for atrocities committed during the war:
A sense of “victimhood” coupled with a rapid accumulation of power and resources indicated he was possibly not “prepared to go down” for the Serb cause, even after the end of the war and his indictment and arrest.
Documentary evidence speaks to the contrary of the denial of his responsibility. International leaders wrote many letters to Karadžić throughout the duration of the war, urging him to protect civilians and abide by international law and warning him of the consequences should he fail to do so.
One such letter, written on October 1, 1992, by Major-General Philippe Morillon, the acting commander of United Nations Protection Force (UNPROFOR) in Bosnia, expresses his disappointment, having “received the dismaying news that [Karadžić’s] forces have proceeded with the forced expulsion of nearly three hundred persons from Grbavica.”
Another letter, sent to Karadžić on June 15, 1995, (approximately one month before the Srebrenica massacres took place) by UN officials Sadako Ogata and Yasushi Akashi, expressed concern over the conditions in Bosnian towns “[d]ue to obstructive actions by forces under [his] control.” The letter condemned his force’s treatment of Bosnian civilians and warned that he was expected to ensure the compliance of those under his authority with international agreements. They added, “We refuse to accept lame excuses, false allegations and suspicions or reference to uncontrolled elements to justify interference with free movement of humanitarian goods and staff.”
The most damning comments of Karadžić are recorded first-hand in the diaries of Bosnian Serb military leader Ratko Mladić. In one translated excerpt from May 28, 1993, Mladić wrote that Karadžić was recorded as saying, “We do not believe that anything except a defeat of one of the sides can end the war.”
Karadžić and Mladić were indicted by the ICTY in 1995 and today, over twenty years later, one of them was brought to justice. UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein describes the verdict as “hugely significant” and adds that the trial “should give pause to leaders across Europe and elsewhere who seek to exploit nationalist sentiments and scapegoat minorities for broader social ills.” Whether or not the conviction will support reconciliation efforts in Bosnia, however, remains to be seen.
The Genocide Documentation Project, launched in January 2013 in partnership with the United States Holocaust Memorial Museum, explores the failures of the international community to prevent or effectively respond to past cases of genocide. Through detailed case studies, the project’s research seeks to inform international policies regarding the prevention of and response to genocide and mass atrocity. By examining the role of the international community in past incidents of genocidal violence, these case studies help shape the views of a new generation of policymakers both within the United States and around the world.
Time is Now to Submit Comments Protesting ODNI’s Astronomic MDR Fees, How Obama Can Improve Openness Legacy, and More: FRINFORMSUM 3/24/16
The National Security Archive recently submitted comments to the Office of the Director of National Intelligence stating our concern over its proposed regulation change that would charge requesters as high as $72 per hour for Mandatory Declassification Review requests and 50 cents per page for photocopying. The rule goes against ODNI’s Transparency Implementation Plan, previous transparency initiatives, instructions from ODNI’s General Counsel Bob Litt, and the President’s January 21, 2009, transparency memorandum.
The ODNI’s MDR fee structure should remain consistent with FOIA’s fee structure. The FOIA statute mandates that no fees may be charged for the “first two hours of search time or for the first one hundred pages of duplication.” The FOIA further instructs that fees surpassing the first two search hours and 100 pages of duplication be reasonable, and as such, the ODNI’s FOIA fee policy only charges 10 cents per page for photocopying and provides an automatic waiver for fees that are less than $10.
ODNI has indicated in response to public comments that it plans to modify the proposed rule. No official notification has been given, however, and the public comment period remains open – until March 28.
OpenTheGovernment.org (OTG) will also be submitting comments.
The CIA tried — and failed — to enact the same bad, astronomically high MDR fees in 2011. After public backlash against the CIA’s proposed regulations, the agency, “as a courtesy to requesters,” withdrew the rule in 2012. Why the ODNI copied the CIA’s failed and misguided fee change –and who is behind the proposals– is a mystery; but it shows that transparency advocates need to keep an eye on other agencies trying to sneak through the same barriers to access.
The Archive also recently joined OTG and a dozen other groups in encouraging President Obama to take concrete and feasible steps to improve his open government legacy – ones that lives up to his Day One promise of being the most transparent administration in history – during his last year in office. These steps include advocating the presumption of openness in the FOIA that is present in both the House and Senate’s FOIA reform bills and releasing the Senate report on the CIA’s torture program.
Reinforcing the Obama administration’s “declassified diplomacy” and efforts to declassify historical records on Argentina’s dirty war during Obama’s visit to that country, the National Security Archive this week posted examples of the kinds of materials in US government files that would most likely enhance public understanding of that troubled period in Latin American history. In the case of other countries like Chile, Guatemala and El Salvador, declassified US intelligence, defense and FBI records have been key to supplying critical information about local command structures, clandestine operations, and human rights violations. Still-classified documents in US files undoubtedly describe similar operations against Argentine insurgents, dissidents and opposition, and their release would advance public comprehension of another historically significant episode of military repression in the region.
This isn’t the first time that the Obama administration has practiced “declassified diplomacy.” In 2014 Vice President Joe Biden announced during a meeting with Brazilian president Dilma Rousseff that the administration would “would undertake a broader review of still highly classified U.S. records on Brazil, among them CIA and Defense Department documents” to assist in finalizing the Brazilian Truth Commission Report. In October 2015 Secretary Kerry personally provided Chilean president Michelle Bachelet with several hundred documents on the Letelier-Moffitt assassinations in Washington, D.C. on September 21, 1976.
Planning on filing a FOIA request with the CIA? A recent court ruling spells out what “magic words” requesters need to use for the CIA to search for records. Requesters must ask for documents that “mention” or “reference” what you’re looking for, not documents that “pertain to”, “relate to”, or “concern” the subject of your request. This very useful information is thanks to a FOIA lawsuit for Nelson Mandela records filed by MIT PhD candidate Ryan Shapiro after the CIA argued unsuccessfully that his request was too burdensome. The judge in the case, U.S. District Judge Christopher R. Cooper, ruled against the CIA, finding that, “Regardless of how onerous it might be to locate them, there can be no dispute about which items are being requested – records in the CIA’s possession that ‘mention’ Nelson Mandela or his three listed aliases,” going on to note that “FOIA’s reasonable-description requirement does not doom requests that precisely describe the records sought, even if compliance might overwhelm an agency’s response team.” See page 7 of the recent ruling in Shapiro’s case for more information on wording a FOIA request to the CIA.
There is a “substantial likelihood” that the Pentagon inspector general’s office destroyed evidence in the prosecution of whistleblower and former National Security Agency official Thomas Drake, according to a new Office of Special Counsel (OSC) report. OSC, the office charged with protecting whistleblowers, sent its conclusions to the Justice Department, which in turn promised to open an investigation no later than June 1. OSC’s findings support Drake’s long-standing claims that the Pentagon IG – which has jurisdiction over the NSA IG – did not “did not properly maintain his confidentiality after he cooperated in 2002 and 2003 with congressional inquiries and a Pentagon inspector general audit of the National Security Agency’s controversial surveillance programs.” Drake was charged by the government in 2010 under the Espionage Act. The charge was dropped in 2011 in a case that US District Court Judge Richard Bennett called “unconscionable,” adding that it didn’t “pass the smell test.”
The Justice Department is declining to prosecute Robin Raphel, a career diplomat that was investigated by the FBI for allegedly providing US secrets to Pakistan. The investigation into Raphel began in 2014 after officials eavesdropped on a call between Raphel – who has been integral to shaping foreign policy towards Pakistan for decades – and a Pakistani official, which seemed to indicate that she “was passing American secrets to Pakistan.” The FBI found classified information when it raided Raphel’s home in 2014 – but the information wad decades-old.
The Navy –under Congressional pressure—is denying Rear Adm. Brian L. Losey’s promotion for retaliating against suspected whistleblowers. Losey was investigated five times “after subordinates complained that he had wrongly fired, demoted or punished them during a vengeful but fruitless hunt for the person who had anonymously reported him for a minor travel-policy infraction.” Senator Ron Wyden (D-Ore.) forced the Navy to reconsider Losey’s promotion by blocking Janine Davidson’s nomination to become the Navy’s second-ranking civilian leader and Sens. John McCain (R-Ariz.) and Jack Reed (D-R.I.), the chairman and ranking Democrat on the Senate Armed Services Committee, sent a joint letter over concerns with the promotion. Rejecting the promotion was a tough sell even with Congressional attention; “a promotion board consisting of Navy admirals recently recommended in a majority vote that Losey be promoted anyway”, a recommendation that was only overruled by Navy Secretary Ray Mabus.
Chelsea Manning recently obtained a 31-page document on the government’s Insider Threat program. The document reveals that “Thousands of US government employees under permanent surveillance are being investigated” to prevent unauthorized leaks. The beginning of the document outlines the eight characteristics that are “telltale signs” of employees likely to leak secrets. These characteristics include “ideology”, “divided loyalties”, and “disgruntled or wants revenge.” Steve Aftergood notes that focusing on these kinds of characteristics harken to an ineffective Cold War strategy. Aftergood also points out that, “The government has already put about 100,000 military and civilian employees and contractors under what it calls ‘continuous evaluation.’”
Officials speaking on the condition of anonymity have indicated that the Defense Department sought administrative and non-judicial actions rather than criminal charges against more than a dozen military personnel involved in an October 2015 airstrike that destroyed a hospital in Afghanistan, killing at least 42. The full results of the investigation are expected to be released shortly.
An ACLU FOIA request to the US Marshals has won the release of documents showing that agents hid their work using controversial cellphone surveillance technology with classification labels, “even though Justice Department officials have said that such methods are normal court-approved law enforcement, not spying or intelligence tactics.” The documents show that the Marshals paid more than $10 million over a five-year period for the surveillance technology, and suggest “a mingling of law enforcement with national-security and espionage work—two areas usually kept distinct in order to protect Americans’ privacy.”
The National Security Archive’s Peter Kornbluh — recently in Cuba as part of President Obama’s press group — told Voice of America this week that, “I think in just five or six years, you’re going to see full access to the Internet in Cuba, you’re going to see a really, a fully mixed economy in Cuba, and we’ll be in the post-Castro era where frankly, political evolution is not only likely, but inevitable.”
Today’s #tbt pick is chosen with today’s conviction of Bosnian Serb leader Radovan Karadzic of genocide, war crimes, and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia, in mind. Today’s pick is a June 15, 1995, letter from the United Nations to Karadzic saying, “We expect you to take responsibility for ensuring that those under your authority comply with all existing agreements and obligations…” Keep an eye out for an upcoming blog on the incriminating documentation regarding Karadzic gathered by the National Security Archive’s Genocide Documentation Project.
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FOIA Bill Passes Senate But Government Still Not Prioritizing Email: A Sunshine Week Wrap-Up FRINFORMSUM 3/18/2016
The Defense Intelligence Agency (DIA), the Department of the Treasury’s Comptroller, and the Nuclear Regulatory Commission (NRC) are among a handful of agencies that have already admitted they will not meet the December 31, 2016, deadline for electronic management of official government email – like Hillary Clinton’s – in their mandatory, annual self-assessment report to the National Archives and Records Administration (NARA).
The State Department, the Department of Defense, and the Energy Department – some of the government’s largest agencies – all filed their reports, which were due by January 29, more than a month late, and one in six agencies did not even bother to turn in their own self-assessments at all, according to a new Email Alert released by the National Security Archive to mark Sunshine Week.
The Archive’s Email Alert concludes that to get agencies to take email preservation seriously further steps are clearly needed. Useful ways to get agency attention include:
* a stern reminder from OMB and NARA that self-assessments are mandatory,
* a Government Accountability Office survey of agency email preservation, and
* congressional hearings showcasing the email savers along with the laggards.
The Archive nominated the Energy Department for the Electronic Frontier Foundation’s FOILIES Award for the most extraordinary and egregious FOIA request responses for withholding a 1978 letter on the Comprehensive Test Ban Treaty (CTBT) in full under FOIA’s oft-abused Exemption Five. DOE withheld the letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the CTBT saying that releasing any part of the document could “confuse the public about the Government’s later policy decisions.” DOE took this untenable stance even though the State Department has published declassified information on the CTBT – and Agnew’s negative views on it – in three Foreign Relations of the United States publications.
The CIA and the Justice Department used the same “confusion” argument last year when the Archive went to court to have a history on the Bay of Pigs invasion released. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge.
Proving again that FOIA “may be the last bastion of bipartisanship in Washington DC, Senators Patrick Leahy, John Cornyn, and Chuck Grassley” marked Sunshine Week by passing the FOIA Improvement Act of 2016 – via Unanimous Consent. The Archive’s FOIA project director Nate Jones notes that to pass the bill by Unanimous Consent, “the senators amended the bill that passed out of the Judiciary Committee to make it slightly less strong than the bill that the Senate passed last session. The section on Exemption Five reform was changed so that the 25-year sunset now only applies to the “Deliberative Process” privilege of Exemption Five (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed. The Presidential Records Act forbids the use of any Exemption Five privilege beginning twelve years after the president leaves office.” This will still prevent the DOE and CIA from their aforementioned abuse of Exemption Five.
There is a possibility that the Senate could reconcile its bill with the House’s bill so that the strongest parts of both remain, but Rep. Elijah Cummings called on Speaker Paul Ryan to pass the Senate version, meaning that the House’s strong B5 reforms may have to wait until the next congress. (MuckRock has a very good comparison of what’s in both bills here.)
The White House indicated this week that it would sign the FOIA reform bill passed by the Senate, and that it would like to see FOIA apply to Congress. The announcement comes a week after a FOIA lawsuit revealed that the Obama administration and the Justice Department “aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.”
The House Oversight and Government Reform Committee is trying to shine a light on the Justice Department’s Office of Legal Counsel memos and opinion-making process. Committee Chairman Jason Chaffetz and Ranking Member Cummings sent a letter to the DOJ noting that a “recent news report indicates that Central Intelligence Agency General Counsel Caroline Krass stated at an event that more frequent requests under the Freedom of Information Act (FOIA) and concerns about opinions being made public ‘has served as a deterrent to some in terms of coming to the OLC to ask for an opinion.’” The Committee is seeking, among other things, documents showing how many FOIA requests for OLC opinions OLC received between 2005 and 2015, and “Documents sufficient to show whether OLC, or the Department more generally, utilizes any automatic program, such as Capstone, for Federal Records Act purposes.”
The Defense Department is seeking – for the second time – a new FOIA exemption that would protect “military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive.” Steve Aftergood notes that this is the second time in as many years that the DOD has requested the exemption. (Aftergood also has some sobering comments on the Senate’s FOIA reform bill at the bottom of this post that are worth a read.)
The ACLU recently filed a FOIA request with all intelligence agencies to learn more “about the standards governing prepublication review and the way those standards are applied.” The intelligence community has for decades – through “a variety of secrecy agreements and a patchwork of regulations” required current and former employers to submit their work, whether it is fiction for non-fiction, for security review before publication – a system that is seen by many as broken. Just Security reports that the major hurdle in fixing the system is lack of information on how it works, making it difficult to suggest fixes for “egregious delays, overbroad censorship, and discrimination against those who seek to speak critically of the government.”
The Energy Department and its contractors continue to retaliate against employees and contractors that spoke to Government Accountability Office investigators, according to a recent McClatchy report. Senator Ron Wyden (D-Or), one of the three senators that requested the 2014 GAO investigation – itself into whistleblower retaliation – said that, “It defies belief that an Energy Department contractor would fire an employee who cooperated with a Government Accountability Office investigation into whistleblower retaliation,” going on to note that it shows the culture of retaliation is “alive and well” at the Energy Department.
Dan Metcalfe – founding director of the Justice Department’s Office of Information Policy – recently wrote an op-ed for Politico on the feebleness of Hillary Clinton’s defense for having both personal email and a personal server while serving as secretary of state – including many of the arguments Nate Jones and I make here. Intriguingly, Metcalfe says that when he retired from the Justice Department in 2007, “I had weathered many a Clinton records scandal during the 1990s—about two dozen, all told, including two that amazingly have still never become public.” Metcalfe argues that “both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better.”
The Archive’s John Prados will be speaking at the Presser Auditorium at Ohio Northern University on Monday, March 21, discussing if there “Is There a Future for the CIA?” Prados has written a number of books, including: The Family Jewels: The CIA, Secrecy, and Presidential Power; The US Special Forces: What Everyone Needs to Know; and A Streetcar Named Pleiku: Vietnam 1965, A Turning Point. Stop by if you’re in the area!
As President Obama prepares to go to Argentina next week on the 40th anniversary of the military coup, the National Security Archive hailed his decision to declassify hundreds of still secret CIA and Defense Department records on the repression during the military dictatorship. The documents, whose release the Archive’s Carlos Osorio says demonstrates “tangible and concrete U.S. support for the pursuit of human rights and justice in Argentina,” are likely to shed significant light on the detailed U.S. knowledge of the repression during the dictatorship.
To provide a historical context for the President’s decision to declassify more records on Argentina, the National Security Archive today posted a unique collection of documents that reveal initial support by secretary of state Henry Kissinger for the abuses of the Argentine generals.
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Archive’s Nomination of DOE for FOILIES Award for Egregious B5 Invocation Reminder Why FOIA Reform Necessary
The National Security Archive nominated one especially bad FOIA response from the Energy Department for the second-annual FOILIES Awards – presented for the most extraordinary and egregious FOIA request responses. Spearheaded by the Electronic Frontier Foundation (EFF), the “winners” of the FOILIES Awards were announced earlier today.
The Department of Energy earned the dubious distinction from the Archive for its lack of “sense and segregability” and spurious use of FOIA’s Exemption Five.
Specifically, the Department of Energy is withholding a 1978 letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the Comprehensive Test Ban Treaty (CTBT) in full – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject. The DOE cited the national security exemption and FOIA’s “withhold it because you want to” Exemption Five for its needless secrecy, saying that releasing any part of the document could “confuse the public about the Government’s later policy decisions.” The DOE is taking this implausible stance even though the State Department has published declassified information on the CTBT – and Agnew’s negative views on it – in three Foreign Relations of the United States publications. It appears the Energy Department may be the confused one – forgetting that FOIA’s Exemption Five is not designed to withhold embarrassing or inconvenient information decades after the fact, and the FRUS publications should allow the DOE to release at least some parts of the document.
The Archive’s nominations for last year’s FOILIEs also included a bogus argument that a FOIA release could cause confusion. The Archive nominated the CIA and the Department of Justice for arguing that a volume of a CIA history on the Bay of Pigs should also be withheld under the Exemption Five because it could “confuse the public”. Amazingly enough – they won. And then won again after our appeal was denied in the DC Court of Appeals. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge.
Yesterday’s passing of S337 – introduced by Senator John Cornyn (R-Tx) and cosponsored by Patrick Leahy (D-Vt) and Charles Grasssley (R-Ia) – will help prevent agencies from making such egregious claims in the future by preventing agencies from invoking Exemption Five for documents 25 years are older — however the sunset only applies to the “Deliberative Process” privilege (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed. The Archive’s Nate Jones notes that while the Senate’s language on B5 is “weakened from the reform that passed in 2014, the most egregious abuses will still be sunset (like the CIA’s withholding of its Bay of Pigs History.”
The House passed a similar bill in January, which has much stronger Exemption Five reform that does not have Attorney Client or Work Product privileges cut-outs and includes a strong test needed to pass to withhold modern records.
Both bills — which should be reconciled so the best parts of both are preserved — also:
- Codify the presumption of openness mandated in Obama’s Day OneFOIA Memo, which “directs agencies to withhold information requested under FOIA only when there is ‘foreseeable harm’ to one of the interests protected by a FOIA exemption;”
- Strengthen the FOIA ombuds OGISby granting it the “ability to communicate directly with Congress and issue advisory opinions in mediation.” However, the House bill also has a troubling carve-out for the frequently FOIA-ed 17 agencies that make up the Intelligence Community, exempting them from certain provisions of the bill and necessary reforms to the consultation process;
- Improve public access to digital records;
- Require agencies to update their FOIA regulations within 180 days after the passage of the bills. Currently, over halfof federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.