Root Cause of FOIA Problems not Addressed, says OGP Report; Army Generals Discuss Delaying FOIA Response for PR Purposes, and Much More: FRINFORMSUM 10/1/2015
This week OpenTheGovernment.org released a progress report – with the contribution of the National Security Archive and 15 other civil society organizations – on the Obama Administration’s Open Government Partnership transparency commitments. The report finds that overall the Administration has failed to take advantage of the OGP platform and capitalize on transparency initiatives, noting that, “certain areas of secrecy continue to cast a dark shadow over the entire OGP process.” Concerning the Administration’s commitment to modernize the FOIA, the report laments that: commitments “have not addressed the root causes of the problems with the FOIA process”; the highly-touted consolidated FOIA portal fell “vastly short” of its potential; and that commitments “have not led to a measurable increase in the speed of disclosures or in the amount of information released, or a reduction in the high use of exemptions, such as b5, to withhold information.” OpenTheGoverment.org argues that in order for the US to meet its transparency benchmarks, the next National Action Plan should ensure that agencies update their FOIA regulations and adopt the key provisions included in model regulations, and include enforcement mechanisms to ensure that guidance on proactive disclosure is implemented.
A leaked Army document shows two generals discussing delaying a response to a New York Times FOIA request on concussions at West Point for public affairs reasons. The Times FOIA request sought information on concussions resulting from a mandatory boxing class, and Army surgeon general, Lt. Gen. Patricia D. Horoho, suggested that rather than promptly replying to the request, “trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.” An Army official who opposed encouraging other publications to run a more favorable story leaked the document to the Times. “After learning of the [leaked] document, the Air Force Academy and West Point quickly released concussion numbers.” The Pentagon’s press secretary is currently looking into the issue, and the Archive will be watching this case develop to see if appropriate disciplinary actions are taken.
A growing number of state legislatures are passing laws requiring state and local law enforcement to obtain court orders to use StingRays, electronic devices that mimic cell phone towers “that can covertly track criminal suspects and is being used with little public disclosure and often under uncertain legal authority.” The ACLU reports that agencies in at least 21 states using StingRay devices or similar; Washington, Utah, Virginia, and California have already approved legislation requiring court orders for such devices, and thousands of cases in Maryland are being re-examined to determine if police deployed the technology legally. Vice News’ Jason Leopold recently published a non-disclosure agreement between the FBI and the D.C. Metropolitan Police Department (MPD) obtained under FOIA on the MPD’s use of the technology, in which the MPD agreed not to discuss any details about it and to alert the FBI “if the department learned that any technical details about the surveillance technology was at risk of being exposed during a judicial proceeding, MPD would contact the FBI so the bureau could ask MPD to ‘seek dismissal of the case’ in order to continue protecting the overall secrecy of the Stingray.”
Last week a federal judge “heard the first oral arguments in a case challenging the ‘upstream‘ bulk collection of data by the National Security Agency (NSA).” Government attorneys argued that the case – brought by the ACLU and several other prominent organizations – was “speculative” and filed a motion for dismissal. The judge, however, noted that forcing the plaintiffs to show standing in this case is “a very difficult burden,” going on to say that the government was effectively arguing that, “just because you all keep things secret, the constitutionality can’t be questioned”.
The Foreign Intelligence Surveillance Court recently appointed a public advocate “to weigh in on whether the government can retain millions of telephone records that it has collected in bulk since at least 2006.” Prior to the passing of the USA Freedom Act in June the government was the only party permitted to argue its case before the spy court; now, however, a public advocate is required “to argue opposite the government in cases deemed by the court to present a novel or significant legal issue.” The Court ruled in June that a public advocate is not needed in cases where “the legal question is relatively simple.”
The Secret Service, in a move that some say “threatens the integrity of the investigation”, is helping the Department of Homeland Security inspector general investigate how information on Rep. Jason Chaffetz (R-Utah) was leaked in the wake of his high-profile criticism of the agency. Shortly after Chaffetz rebuked the Secret Service for its repeated failures in recent years, documents on his application to — and rejection from — the Secret Service in 2003 were circulated across the agency. After Chaffetz’s remarks, Secret Service assistant director Edward Lowery sent an email saying, “Some information that he might find embarrassing needs to get out,” continuing, “Just to be fair.”
According to reporting by the Washington Post, inspectors from the Secret Service internal affairs office sat in on more than 40 interviews about the leaks, in some cases contacting witnesses directly. The Secret Service’s involvement in its own investigation is problematic, in part because it “could deter internal whistleblowers from coming forward with additional allegations of misconduct for fear of retribution by their bosses.” Eric Feldman, who worked at four IG offices under both Democratic and Republican administrations, says the IG offices exist precisely to avoid this kind of conflict of interest. Feldman argues, “You just don’t do it. You don’t have the agency you’re investigating involved in the investigation.” The DHS IG’s office countered that, “generally speaking, it is not unusual” for the their office to receive help from internal affairs units within DHS. “Most of the Secret Service employees interviewed by investigators have been reprimanded, given one- or two-day suspensions or told they will face such disciplinary measures for accessing Chaffetz’s personnel file without a legitimate work reason, people familiar with the inquiry said.”
A Drug Enforcement Administration internal affairs log released under the FOIA shows agents routinely kept jobs despite serious misconduct. Out of 50 instances since 2010 where the DEA’s Board of Professional Conduct recommended an employee be fired, only 13 were actually terminated (and in some instances agents were reinstated by the federal Merit Systems Protection Board). None of the agents that attended “sex parties” in Colombia were fired, for example, and while the Board of Conduct recommended firing an agent for selling drugs, the agent received a 14-day suspension instead. None of the agents who left a college student handcuffed in a holding cell without food or water for five days were fired. James Capra, the former head of operations for the DEA, said “The general feeling throughout senior leadership at DEA was that it’s a ridiculous system.”
Google Chrome security team member Robert Sesek recently posted the Director of National Intelligence’s index of Intelligence Community Directives, which establish policies and standards for the intelligence community and that he obtained under the FOIA. Sesek notes “There are two ICDs not listed in the index that was returned via FOIA but are listed on the DNI’s website. Those two documents are also dated from 2015, and so if the released document was processed in 2014, that would explain their absence. In addition, the DNI’s website does not list the following two directives. It is unclear why these have remained unpublished.”
This week’s #tbt pick is chosen with Pope Francis’ recent beatification of slain El Salvadorian Archbishop Oscar Romero in mind. Today’s #tbt pick is a 2011 posting commemorating the 35 anniversary of Romero’s 1980 assassination by “by right-wing assassins seeking to silence his message of solidarity with the country’s poor and oppressed.” The posting contains a dozen documents that describe the months before Romero’s death, and is one of many Archive postings on the US government’s support for the brutal El Salvadorian regime, funneling billions of dollars to the tiny country to support the dictatorship at the expense of leftist groups supported by Cuba and the Soviet Union. One of the documents obtained by the Archive was recently featured in a Foreign Policy in Focus article on Salvadoran union organizer David Ayala-Zamora, who survived torture by US-backed security forces “and took his activism north of the border.” Ayala-Zamora calls being tortured the best experience of his life because “It taught me how committed I am in the struggle for justice. And it’s kind of fortified me in some ways, because you learn how much capacity you have in this body.”
Ed. note: This article has been cross-posted from FreedomInfo.org
By Toby McIntosh
Some 140 groups have charged that the Commission on Freedom of Information announced in July is biased.
The letter to the British Prime Minister David Cameron by media bodies, civil society groups and and others states, “The government does not appear to intend the Commission to carry out an independent and open minded inquiry.”
The terms of reference for the commission indicate that “its purpose is to consider new restrictions to the Act,” according to the letter.
The commission’s five members include two former home secretaries, a former permanent secretary and the chair of a body subject to the FOI Act. One of the members, former Home Secretary Jack Straw, “has repeatedly maintained that the Act provides too great a level of disclosure,” the letter says.
Another commission member is Dame Patricia Hodgson, chair of Ofcom, the UK communications regulator. In 2012, Ofcom stated that “there is no doubt’ that the FOI Act had had a ‘chilling effect” discouraging the proper recording of information by public authorities, according to the letter.
Whether the FOIA chills intra-governmental discussion is on the commission’s assigned topics.
The letter also expresses concern at government proposals to introduce fees for tribunal appeals against the Information Commissioner’s FOI decisions.
This article originally appeared JohnPrados.com, the website of National Security Archive Senior Fellow John Prados.
September 17,2015–I wanted to be wrong this time. I really did. I was hoping that the intelligence folks had broken with their past and were really doing what they said, releasing a mountain of information to permit historians and citizens to forge a new understanding of our past. What we have is a mountain of paper, with nuggets of new detail but vast expanses of gaps. You read it here first. Before the Spooks’ Show began in Austin yesterday I said that this material would be “opened for research,” and predicted the documents would be laced with deletions of words, sentences, passages and whole pages (“Freeing the President’s Daily Brief,” September 16, 2015). That’s exactly how it is.
Someone at the event held at the Lyndon Baines Johnson Presidential Library used the figure 80 percent to quantify the amount of the material released. That claim is completely phony. It can only have been derived by including every blank back cover and front title page (and many of the 2,500 PDBs have four of them) as a page of declassified content. I’ll come back to secrecy in the PDBs further along but first there are points to be made about the practice of these CIA events and the specifics of this one.
Joe Lambert is the CIA official who runs the agency office called Information Management Services. This unit houses the CIA’s declassification unit, its Historical Review Panel, the Publications Review Board, and more. At Austin Lambert bragged the PDB event is the twenty-third such conference held by the agency since 2003, when one was organized around release of the agency’s official biography of Richard Helms. This would be admirable–or more admirable–except for the CIA’s penchant for taking double or triple credit for every thing it does. I noted in the last post how CIA had been forced into a review of the class of documents called PDBs as a result of court order. At Austin agency officials spoke as if the Historical Review Panel had noodled the idea of declassifying PDBs all by themselves. So they have to do the thing–so they have a “conference” to “release” the material.
This is not the first time. Not long ago another one of these conferences dealt with the CIA’s role in bringing Boris Pasternak’s novel Doctor Zhivago to the public. There, a reporter had FOIAed the documents on the CIA op, the agency looked good, it declassified, cooperated, and capitalized on the public’s surprise by holding the conference. At one conference on the Missile Gap most of the documents had been declassified previously, except for passages from the agency’s U-2 history it was being forced to relinquish. Veterans of the CIA proprietary Air America, originally called Civil Air Transport, were agitating to go public with their own history, and when they did that at one conference, CIA followed up with another. Caught holding lemons, each time the agency chooses to make lemonade. And those thousands of pages of cover sheets in the PDB? You can bet that when the time comes to report to overseers the amount of material the CIA has declassified this year, every one of those covers will count as content.
A few words on the actual event in Austin. The practice of hosting these kinds of events began under George Tenet, and at that time the conferences were authentic, with the CIA voluntarily choosing to release material, multiple panels to cover different facets of the material, bringing together numerous agency veterans and a significant number of outside historians. The conferences today are pro-forma, more often than not (though not always) focused on material coming to light by necessity. There may be just one panel. The panel itself may be indifferent to the material. In Austin CIA director John Brennan delivered the keynote address, marking this as one of the more serious CIA events. Brennan devoted roughly half his time to the present and future of CIA. He managed to layer in a bit of nice background on the real documents, but relied upon chief CIA historian David Robarge to make sure the bases were covered. Both Brennan and Bobby Inman, former deputy director of central intelligence, emphasized secrecy–Inman used part of his time to denounce Edward Snowden. John Helgerson, a former deputy director of the unit that produced the PDBs, talked about CIA briefings of presidential candidates. The most substantive of the panelists were former CIA director Porter Goss, who recounted spending more of his time on the PDBs than any other single task; and Peter Clement, an officer who has participated in all aspects of producing and briefing the PDB. William McRaven, the former SEAL chieftain who took down Osama bin Laden, spoke for fifteen minutes and said “PDB” exactly twice. The supposed outside historian, William Inboden, extolled the range of material. General James Clapper ended the day by gushing over Admiral McRaven, John Brennan, and Bobby Ray Inman.
As an introduction to the President’s Daily Briefs this event rated a C – at best. It gets an A as a demonstration of the CIA’s m.o.
Now to the material itself. You’ve heard me rail at the keepers of the keys in the secrecy system. In his remarks John Brennan talked of President Obama’s dedication to bringing the American people “a clear picture of the work done on their behalf–consistent with common sense and the legitimate requirements of national security.” I submit the PDBs demonstrate my concerns, not Mr. Brennan’s clear picture. Let me give a few examples.
Some historians consider October 27, 1962 the most dangerous day of the Cold War. Amid the Cuban Missile Crisis, with nuclear-tipped Soviet rockets attaining an operational status, anti-aircraft missiles shoot down a U.S. U-2 aircraft and the generals want to retaliate. The report to the president for that day has about half the Cuba item deleted. Among the crucial issues of this history which historians debate is whether or not the U.S. knew that the Soviets’ tactical missiles we called “FROGs” had nuclear warheads. The report specifies that photographic intelligence had found “FROGs” and then deletes the details and any analysis. It also deletes everything regarding Soviet ships bound for Cuba–where maps that illustrate precisely where every Russian vessel was located have long since been declassified. Roughly half of everything in the report on reactions to the crisis in the Soviet bloc is out. Director Brennan shook his head, during his speech, in wonderment that PDBs might contain comments on the reception of the New York City Ballet performing in Russia. It turns out that that item appears in this very report–and isn’t it perfectly understandable intelligence officers might want the president to hear that at this moment of extreme tension Russians were turning out for the ballet as if things were normal.
Much was made at the Austin event of the very first of these reports, handed to President Kennedy as he sat by his swimming pool. Deleted from that report is everything about Brazil, Japan, and Egypt. Actually, during the early 1960s Egypt fought a counterinsurgency war in Yemen. Survey the PDBs and you will find Egypt and Yemen material gutted at every turn. The presidential report for August 28, 1963 came at a time when Kennedy was considering CIA support for a coup against South Vietnamese dictator Ngo Dinh Diem. Excluding the back cover this report totals six pages. Though the Vietnam item remains largely intact, nearly four and a half pages of the rest are deleted save for a comment about European squabbles over Common Market poultry pricing. The coup actually took place on November 1 of that year. There the report is sparse on the coup, as the next day it is uncertain over the murder of Diem and his brother Ngo Dinh Nhu.
In the August 31, 1965 PDB a full page is denied along with much of the substance of an item about fighting in Kashmir that started the Indo-Pakistani war of that year. Take out the cover, back page, and 1 1/2 pages deleted and the majority of this report is on the cutting room floor. Fast forward a year and we are in the run up to the Soviet invasion of Czechoslovakia. The 11-page PDB for August 17, 1968–one of those with four pages of covers–loses another 4 1/2 pages to deletions including the item about the Czechs and East Germany.
Many of those extra covers result from President Johnson’s desire, continued for at least a year and starting in 1967, for a special section on North Vietnam. I surveyed 20 of these PDBs, including the ones just prior to the Tet Offensive and the Soviet invasion, but most at random. In nearly every case the North Vietnam material is gutted. Think about that for a minute. The secrecy rules provide that agencies must obtain specific presidential authorization to keep secret material over 50 years old. We are observing the 50th anniversary of the Vietnam escalation, and in three years we’ll be passing 50 on the whole Johnson presidency. The Vietnam war is over. South Vietnam doesn’t exist anymore. North Vietnam doesn’t exist anymore. Today we have the Socialist Republic of Vietnam (SRV). Granted that is the successor state to the old North, but that’s hardly enough. The secrecy regulations require identifiable damage to U.S. national security, and place this material in a category where the predisposition should be to release. American relations with the SRV are excellent. The revelation that the U.S. spied on North Vietnam during the war is not going to affect them. Not only is there no identifiable damage to the national security, all of this is in service of secrecy authorities that will soon sunset.
Quite a lot of the bases for secrecy I see in these redactions of the PDBs are equally flimsy, even where it relates to specific weapons. Where is the national security damage in showing what the report says about FROGs in Cuba? In contrast, the PDBs are laced with references to sources (as in “sources and methods”)–U.S. embassies and consulates, foreign politicians, BLACK ORCHID (SR-71/A-12 flights), and so on. Whatever the secrecy mavens think they’re up to, it isn’t protecting sources and methods–and it’s not what Bobby Inman thundered about yesterday.
Because of what was done here, every single PDB that was supposedly “declassified” yesterday will have to continue to live in an expensive SCIF–a Sensitive Compartmented Information Facility–under 24 hour guard because it contains any secret information at all. Requests to release every little snippet in these documents will have to be separately decided, by platoons of officials. Same with the appeals after those officials deny. All that costs. The dollars add up. This is neither common sense nor is it a legitimate requirement of national security. Shame on John Brennan. Instead of Barak Obama sending the CIA flowery letters congratulating them for making this artificial concession to openness, he should be telling them to get on with the job.
This article originally appeared on Archivist John Prados’ website.
September 16, 2015 – Today the big pooh-bahs of the security services–Fearful Leader Clapper, the Machiavellian Brennan, former SEAL chieftain Admiral McRaven, and a number of their predecessors, have gathered in Austin, Texas, at the Lyndon B. Johnson Presidential Library. Their purpose is to preside over an event at which the government agencies and the National Archives formally open for research the key intelligence reports for the ages. Today these are called the President’s Daily Briefs (PDBs). Jack Kennedy knew them as the PICKL (predictably, “pickle”), or President’s Intelligence Checklist; Dwight D. Eisenhower’s staff had even more awkward names like “Synopsis of Intelligence Items Reported to the President.” (They never could find an acronym for that one.)
If you’re familiar with the PDB at all it is probably due to the now-notorious issue of August 6, 2001, in which CIA analysts reported their sense that Al Qaeda terrorists were likely to employ large aircraft as weapons. The Bush White House, which paid no attention, moved heaven and earth to keep that PDB out of the hands of 9/11 investigators. Michael Morrell, Mr. Bush’s CIA briefer, went on to great things at the agency after his time with the PDB, so you can see it’s serious business.
The PDB is literally the president’s daily secret newspaper. The Johnson Library alone has 38 boxes (an archival box typically contains roughly 2,500 pages). Kennedy another 17, and Eisenhower records together possibly contain that many more. Who knows how many boxes of PDBs accumulated during the Nixon, Carter, Reagan, Bush (I and II), Clinton, and Obama administrations.
These documents have a long and storied past. The very first PDB was crafted on February 15, 1946. In Ike’s day they were written right inside the White House by the president’s trusted staff secretary, Colonel Andrew Goodpaster, and started simply as his notes. He, and John S. D. Eisenhower, the president’s son–and Goodpaster’s assistant–had the advantage of knowing precisely what the president worried himself about.
But like most things that go to presidents, the PDBs became the focus of fierce jockeying. (Still today: In an attempt to assert that it was always the oracle of the PDB, the CIA maintains that its publications Current Intelligence Bulletin and Central Intelligence Bulletin, precursors to the National Intelligence Daily, all lower-level organs, were “PDBs.”) Responsible for the actual information utilized in the PDB the CIA sought to gain control over the drafting. They succeeded when John F. Kennedy occupied the White House. The PICKLs, as they were then known, were delivered by the president’s military aide, General Chester V. Clifton. Then a focus of infighting became who would be present when the president received his daily dollop of intel. McGeorge Bundy often attended, Walt Rostow wanted to be a recipient of the document himself, Henry Kissinger did not want the PDB delivered if he wasn’t there to hear it; Zbigniew Brzezinski, I am told, sought to prevent CIA director Stansfield Turner from delivering the document, to take over the delivery duty himself, or at least be there for the event. In Ronald Reagan’s time security advisers did not trust the president to understand the issues and were almost always in attendance.
Bill Clinton started off by reading PDBs as part of his morning national security briefing. Then he read them only when he was in Washington, often cancelling the remainder of the briefings. People at the agency got the sense the president was not interested. When that got reported in the media, Clinton made a show of the PDBs, receiving them together with Vice-President Al Gore, both their national security advisers, and deputies, and White House chief of staff Leon Panetta. George W. Bush read the documents and plied his CIA briefer with questions. Bush’s father, having once headed the CIA, paid careful attention to the PDBs. Barack Obama has the big multi-official palavers on Friday mornings and small briefings every day. (See more on the PDBs and see some samples on the National Security Archive website, http://nsarchive.gwu.edu/.)
The CIA might have gotten control of the process, but it had no handle on the president’s interests. The customer has always been the problem for the intel pookies. President Kennedy would question Mac Bundy or General Clifton and they would pass the queries along to the agency. LBJ went through Rostow and Nixon through Kissinger. Carter often relied upon Vice-President Walter Mondale, who had been a member of the Church Committee, as his conduit to the intelligence agencies. CIA director Bill Casey heard President Reagan express a desire for more information on Poland and had the PDB redesigned to include a special Polish section. Casey arranged for Richard Lehman, head of his PDB unit and the designated briefer, to discuss the president’s mood and concerns after his return each day. These “backbriefs” have remained the standard procedure ever since. (After Bill Clinton appeared to shun PDB reports the CIA tried spicing them up with foreign inside gossip and direct reporting from clandestine sources.) The final printed edition of the PDB went to the White House on February 15, 2014. Mr. Obama now receives his daily intel on a secure tablet.
With whatever exceptions exist, all this vein of rich historical material will remain classified even after today. I say “opened for research” because those who control declassification at the agency have demonstrated a proclivity for gutting the record in the name of information security. The big brass aren’t coming to Austin to give out the PDBs, only to acknowledge they have become fair game in the secrecy jousts.
Return, with me, to the days of Clinton, when the Cold War had ended and the winds were so fair that a serious political philosopher could ventilate about the “end of history.” Secrecy was already a problem then, and Clinton recognized it with a project to institute “automatic declassification” of records older than 25 years, with “exceptions” to be carved out by agencies requesting “exemptions.” The overall project failed (the Air Force and CIA claimed exemptions for 100% of their work), but the specific angle for the Presidential Daily Briefs was CIA boss George Tenet’s assertion that the PDBs needed secrecy to protect intelligence sources and methods. That marked the beginning of an Alice in Wonderland story that ended only today.
“Sources and methods” are spookspeak for intelligence tradecraft or for specific agent identifications or information compartments (such as overhead imagery, communications intelligence, or the like). But the PDBs are information reports, not efforts to create new intel channels or technologies. Names of agents and whatnot can easily be removed from ancient documents or are, in a number of instances, already known from the CIA’s declassification of specific cases. (For example, Tenet asserted sources and methods protection for PICKLs of the Cuban Missile Crisis in spite of the fact the agency had already released portions of those very documents, plus the actual transcripts of interviews with its Soviet spy Oleg Penkovskiy, whose information lay at the heart of that reporting.) A number of PDBs, bearing on Vietnam, Chinese nuclear weapons, the Six-Day war in the Middle East, and other subjects had already been declassified, with the secrecy apparatus considering them as simple information reports. Currying favor with the press and enhancing his stature as maven of top-level information, Henry Kissinger permitted the PDB to be photographed, a picture published in Newsweek on November 22, 1971. There’s no way a true “sources and methods” issue would have been treated in such a cavalier fashion. But suddenly the sources and methods bugaboo descended to chill the entire declassification process.
In 2004 the National Security Archive joined scholar Larry Berman to challenge this idiocy. Berman had requested and had been denied release of a pair of innocuous PDBs. The Archive joined him in a lawsuit for release of the material as is provided under the Freedom of Information Act. Though we lost the suit for the two specific PDBs in the 9th Circuit Court of Appeals in 2007, the justices ruled that CIA could no longer claim a blanket exemption for the class of documents, and that PDBs from the Kennedy and Johnson eras had to be considered for release.
What is happening at the LBJ Library today is a direct result of that court battle. Notice that the agency took its sweet time–8 years– to cough up any of this material. Without seeing the rest of the documents I nevertheless expect the collection will be laced with redacted passages, pages, and whole documents. The organizers of this event promise that PDBs will be posted on the CIA website, presumably today after the event. I have argued elsewhere that the agency’s declassification process has been corrupted. It functions to protect proper secrets only at the margin and is far more concerned with preventing embarrassment–a stance explicitly prohibited in the regulations supposed to govern secrecy and declassification. I’ll have more to report on the PDBs once I get the chance to see what the agency has done.
DOJ OIP to Join FOIAonline, 2,500 PDBs Released by CIA 8 Years after Agency Argues Against NSArchive in Court That No Portions of PDBs Segregable for Release, and Much More: FRINFORMSUM 9/17/2015
The Department of Justice’s Office of Information Policy (OIP) recently announced that it will join FOIAonline, the multi-agency FOIA submission and tracking system created by the EPA, in 2016. The OIP announcement also noted that, “In addition to tracking the requests it processes and the Department’s administrative FOIA appeals, OIP will be using FOIAonline to prepare and validate the Department’s Annual FOIA Report.” OIP’s move to FOIAonline could indicate that the office, which is in charge of “encouraging agency compliance” with the FOIA, is getting serious about agencies harnessing technology to create – or join – state-of-the art FOIA platforms that save agencies time and money and help decrease FOIA backlogs. It does, however, beg questions about the future of the Obama administration’s FOIA Portal, thought to be being developed by the tech whizzes at 18F. While 18F has already announced “that it was not creating a backend tool for FOIA processing offices to use in managing requests,” the Obama administration’s Second U.S. National Action Plan pledged to “launch a consolidated request portal that allows the public to submit a request to any Federal agency from a single website and includes additional tools to improve the customer experience,” with many expecting 18F to fulfill that function.
This week the CIA and the LBJ Library released online a collection of 2,500 declassified President’s Daily Briefs (PDBs) from the Kennedy and Johnson administrations. The release of the PDBs, which are Top Secret documents containing the most current and significant intelligence information that the CIA believes that the President needs to know, is significant as it comes eight years after the Ninth Circuit Court of Appeals ruled against the National Security Archive and Professor Larry Berman in his efforts to obtain the disclosure of two PDBs written for President Lyndon B. Johnson in the 1960s. At the time the CIA argued in court that the PDB was itself an intelligence method, and that therefore no portions of either document was segregable. While the court ruled –without viewing the documents– that the PDBs’ disclosure could “reveal protected intelligence sources and methods” and thus withheld both in full, it did reject the CIA’s “attempt to create a per se status exemption for PDBs.” The CIA’s latest release includes the two PDBs at the center of the Archive/Berman lawsuit, which were disclosed in part despite the CIA’s earlier claims of non-segregablility. Dr. John Prados, Archive Senior Fellow and head of the Archive’s Intelligence Documentation project, also has an excellent post on the disclosure, available here.
The Defense Department’s Inspector General is focusing on CENTCOM’s intelligence wing in its investigation into allegations of distorted intelligence concerning the war against the Islamic State. The analysts who filed complaints about the distorted intelligence – who work for the Defense Intelligence Agency – argue “that their superiors within Centcom’s intelligence operation changed conclusions about a number of topics, including the readiness of Iraqi security forces and the success of the bombing campaign in Iraq and Syria. The revisions presented a more positive picture to the White House, Congress and other intelligence agencies.” Earlier reports highlighted concern that Director of National Intelligence James Clapper’s very close and “highly unusual” relationship with CENTCOM’s intelligence wing head –and far more junior officer– Army Major General Steven Grove, was having a “Cheney effect” on the intelligence coming out of the CENTCOM office, “a reference to pressure felt by CIA analysts before the 2003 Iraq invasion to portray Saddam Hussein as posing a more dire threat than he actually did, following then Vice-President Dick Cheney’s direct interaction with far more junior analysts and officials.” News of the possible data distortion prompted the House Oversight and Government Reform Committee to request briefings from senior DOD officials about the allegations of manipulated intelligence, due Friday. Representative Adam Schiff (D-Calif.) said this week, “In the wake of the flawed intelligence prior to the Iraq war, we must make sure that all voices are appropriately considered and that assessments are never again politicized.”
For the first time since 2001 a federal judge has fully lifted an 11-year-old non-disclosure provision that has, until now, prevented Nicholas Merrill from discussing his receipt of one of the FBI’s National Security Letters (NSL). While the FBI ultimately withdrew the NSL, which is a letter that demands business records for national security investigations, because Merrill “continually refused to comply” with it, Merrill continued fighting the gag order. Insufficient judicial oversight of the NSLs, particularly their non-disclosure provisions, has been a long-standing concern for transparency advocates. While revisions of USA Patriot Act have allowed for greater judicial review and clarifications to the non-disclosure clauses, there are still no requirements to seek approval or judicial review when sending an NSL, and the non-disclosure provisions prevent the full extent of the NSL program from becoming known. Despite his recent victory, Merrill will have to wait 90 days before discussing his experience with the FBI in order to give the government time to appeal.
Federal employees lodged an unprecedented number of complaints in FY2014 with the Office of Special Counsel (OSC), which is responsible for safeguarding “the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.” The FY2014 OSC annual report shows that the office received more than 5,000 complaints in FY2014, a 17 percent increase from FY2013, noting that “The number of prohibited personnel practice (PPP) complaints was also at an all-time high, 3,371, nearly a thousand more than just four years prior. We also received significantly more whistleblower disclosures in FY 2014 than in past years.” The OSC annual report also found 117 instances of favorable outcomes for whistleblowers that filed complaints, also an all-time high. OSC anticipates the number of complaints it receives will to continue to grow.
President Obama will not be staying at New York City’s famed Waldorf Astoria hotel during the UN General Assembly meeting this month, as is Presidential custom. The change of venue was spurred by spying concerns now that a Chinese insurance company owns the hotel. The Committee on Foreign Investment in the United States (CFIUS), which is responsible for vetting foreign companies’ purchase of American ones, cleared the Chinese company’s purchase of the hotel earlier this year.
The Archive, working with New York Times national security reporter Scott Shane, recently published the primary source documents gathered by Shane for his new book on Anwar al-Awlaki, Objective Troy: A Terrorist, A President, and the Rise of the Drone, which was released this week. As Shane notes in his posting for the Archive, “The attention [al-Awlaki] drew from anxious American authorities over many years meant that many government documents shed light on his life, on the government’s view of him at different stages, and on the legal analysis that justified his extrajudicial execution. Many of the documents [in the posting] were obtained under the Freedom of Information Act by J.M. Berger of Intelwire, an author and researcher on terrorism; by the conservative Washington organization Judicial Watch;” and Shane himself.
With the recent release of a trove of PDBs in mind, today’s #tbt document pick is the 6 August 2001 President’s Daily Brief, “Bin Laden determined to strike in US,” which warned of terrorist threats to the US from bin Laden and al-Qaeda 36 days before the 9/11 attacks. The PDBs declassification and release to the 9/11 Commission made President Bush the first sitting president to declassify even a portion of his PDB.
DOJ Issues New Cell Phone Tracking Policy That Does Not Apply to State or Local Law Enforcement, DOS Appoints FOIA Czar, and Much More: FRINFORMSUM 9/10/2015
The Justice Department issued a new policy last week stating that investigators for the department’s component law enforcement agencies will now be required to obtain warrants before using StingRay cell phone tracking technology. The policy, which also limits what information may be collected via StingRay and how long it can be stored for, does not apply to state or local agencies unless they are engaged in a joint task force with the DOJ. The DOJ announced in May that it would begin a review of the agency’s use of the tracking technology after reports – and subsequent lawsuits – that the US Marshals were harvesting data from American cell phones from small planes “mounted with controversial cell-phone tracking systems.” Deputy Attorney General Susan Yates announced that the Department of Homeland Security is also “working on a cell-site policy similar to the one she outlined.”
A second review conducted by the CIA and the National Geospatial-Intelligence Agency of two emails Hillary Clinton received on her personal email while Secretary of State has confirmed the Intelligence Community Inspector General’s finding that the emails “contained highly classified information.” Both the Clinton campaign and the State Department have disputed the findings, citing classification disagreements as a regular occurrence. Clinton also apologized for using a private email, calling it a “mistake” (the Archive’s full analysis of her sole use of private email can be found here).
Politico’s Josh Gerstein reports that a FOIA lawsuit brought by journalist David Brown is seeking all records on how Clinton’s lawyer, David Kendall, was allowed to keep copies of Clinton’s emails after some were deemed classified. Gerstein notes that, “Kendall said in a letter to Congress recently that on July 8, the State Department provided him and his law partner Katherine Turner with a safe to hold the drive.” Kendall turned the thumb drive over to the FBI in August. Brown’s lawyer, Kel McClanahan, argues that it is highly unusual for a private attorney to hold classified records, saying, “If one of us tried to do this, we’d have our clearance yanked that very day and have a search warrant served on us and something different happened here.”
The State Department’s ongoing review of the remaining 25,000 Clinton emails in its possession is allegedly exacerbating the Department’s current FOIA backlog. According to the Department, by the end of FY 2014 there were an outstanding 10, 965 FOIA requests, with an additional 16,517 having been made since then. DOS has argued that tackling this growing backlog is nearly impossible if it is to successfully fulfill a “court-ordered release of all of Clinton’s work-related e-mails” in connection to a FOIA lawsuit brought by Vice News’ Jason Leopold. To contend with the challenge, the Department has both announced plans to pull 50 State employees – not designated FOIA professionals – from other departments to help with the backlog, and hired a FOIA czar, Ambassador Janice Jacobs, to oversee State’s beleaguered FOIA processing. Jacobs contributed “the max individual donation of $2,700 to Clinton’s presidential campaign” in her retirement, a fact DOS says it was unaware of. State spokesman John Kirby says the contribution, however, does not constitute a conflict of interest.
The Department of Defense Inspector General has cleared Army officials of retaliating against Army Lt. Col. Jason Amerine for blowing the whistle on US hostage recovery efforts. In 2014 Amerine provided information to Representative Duncan D. Hunter (R-Calif.) for Hunter’s attempts to improve hostage legislation, and participated in the Congressional investigation into hostage negotiating tactics, which was initiated after American hostage Warren Weinstein was killed in Pakistan in a drone strike this January. Amerine’s participation prompted complaints from the FBI to the Army, prompting a criminal inquiry, which Hunter and others allege is a “retaliatory investigation.” In a two-page August 28, 2015, memo the IG determined that three senior Army officials “did not violate whistleblower protection policies against Amerine in removing him from his job and referring the concerns about him to the Army’s Criminal Investigation Command (CID).” The issue continues to be scrutinized in Congress; “Sources with the Judiciary Committee said whistleblower advocates have raised concerns with them about there being a potential loophole in the existing whistleblower law that allows criminal investigations to be opened as a way of retaliating and as a ‘fishing expedition” for other wrongdoing.” The CID’s criminal investigation into Amerine is ongoing.
A book rebutting the conclusions of the damning Senate Intelligence Committee report on the CIA’s torture program – authored by former agency officials implicated in the report – “depicts the Senate investigation as a partisan attack that maligned agency employees and dismissed the value of intelligence gained from captured al-Qaeda suspects.” The book, which includes essays by CIA directors George J. Tenet, Michael V. Hayden and Porter J. Goss, as well as the CIA’s Counterterrorism Center head Jose A. Rodriguez Jr., is being released by the US Naval Institute and is imaginatively entitled, “Rebuttal.” Rodriguez’s chapter is described as the most “combative.” Rodriguez, who has previously argued that the torture program was both effective and authorized, ordered the destruction of 92 video recordings of Abu Zubaydah being waterboarded 83 times in one month in a black prison site back in 2005. Rodriguez justified the destruction by writing that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.”
The federal FOIA ombuds office, the Office of Government Information Services (OGIS), recently announced that it has posted 150 of its case closure letters online since September 2014. The letters are drafted after OGIS has completed providing mediation services for a FOIA dispute, and the letters provide summaries and serve as an “important snapshot of the facts of the case and our work.” The letters can be viewed here.
OGIS also recently reiterated that its review team “will pay particular attention” to agency’s issuing “still interested” letters as it begins to assess individual FOIA programs, “including the six Department of Homeland Security components where reviews are underway or scheduled.” These are letters agencies send requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. OGIS anticipates releasing its findings on these letters by the end of the calendar year. Unfortunately, OGIS’ statement comes a year after the Archive sought OGIS assistance on this practice, of which the DHS is only one abuser of many, and in that time period the DOJ’s Office of Information Policy has already issued new guidance that inexplicably permits these likely illegal letters.
The FBI recently declassified 137 pages of its file on novelist Gabriel García Márquez in response to a FOIA request from The Washington Post – it withheld an additional 133. The bureau maintained a file on Márquez for 24 years, beginning in 1961 when Márquez traveled to the US to establish a Cuban news service. According to the Post, the FBI originally thought “the writer’s first name was José and misfil[ed] its classified intelligence under the name José García Márquez,” and later, when updating photos in the covert dossier, “agents simply copied the dust jacket of one of García Márquez’s best-selling novels and slapped the portrait into a file stamped ‘SECRET.’” That the FBI continues to withhold 133 pages of documents on its surveillance of Márquez – the most recent of which would be from 1985 – is shameful, and the bureau ought to declassify the remaining documents in their entirety.
The Hughes Glomar Explorer, which was built in the 1960s by the CIA for Project Azorian – a secret attempt to salvage a Soviet Golf-II class submarine and its three one-megaton nuclear missiles that sunk off the coast of Hawaii – and was later purchased by a Swiss oil company, was recently consigned to the scrap yard due to falling oil prices. In response to a FOIA request on Project Azorian, the CIA said it could “neither confirm nor deny” that documents about either the ship or the censorship existed, and thus the infamous “Glomar response” was born. This week’s #tbt pick is chosen with this bit of FOIA history in mind, and is a 2010 posting from the Archive’s nuclear vault on the CIA’s declassified history of the Glomar Explorer,