Dos Erres Arrest, FBI Drastically Reduces Number of Pages for “Complex” Request Threshold, and More: FRINFORMSUM: 1/12/2017
Dos Erres Arrest in Maryland
Federal agents arrested 54-year-old Jose Mardoqueo Ortiz Morales in Maryland last week for suspected involvement in the Guatemalan Special Forces brutal murder of more than 250 men, women and children 1982 – known as the Dos Erres massacre, which was part of the Guatemalan military’s “scorched earth campaign” carried out by soldiers notorious for their use of torture and brutal killing tactics. According to witness testimony, and corroborated through U.S. declassified archives, the soldiers murdered nearly the entire town and then threw their victims’ bodies into a well and nearby fields.
The National Security Archive’s Guatemala Documentation Project has been submitting FOIA requests and winning the release of declassified U.S. documents on Dos Erres since 1995. The declassified documents reveal shortly after the Kaibil operation, U.S. officials investigated the massacre and concluded that the Army was the only force capable of such an organized atrocity.
At least five other Kabiles have been convicted for their role in the massacre and were sentenced to more than 6000 years in prison. Kabiles responsible for Dos Erres have been arrested in the United States and Canada.
FBI Changes Rules for Labeling FOIA Requests Complex – Without Notice
A FOIA request submitted to the FBI this time last year was automatically labeled large or complex if the response totaled 2,500 or more pages of documents (the labeling of FOIA requests as “simple” or “complex” places them in different processing queues within an agency’s FOIA shop – ones that often have drastically different estimated completion timelines).
This year a FOIA request to the bureau only has to deal with 51 pages or more to be deemed complex – but you wouldn’t know it to look at the FBI’s website. Michael Best noticed the change in a response the FBI sent him and highlighted it on MuckRock. Best notes that, “Even with this new definition, the FBI says that its average processing time for ‘simple’ cases of 50 pages or less is 181 days – or slightly more than thirteen times the statutory limit. For complex cases, it’s 659 days – nearly fifty times what’s allowed by law.”
FOIA in Transition
The Reporters Committee for the Freedom of the Press released a fact-sheet on Jeff Sessions track-record with issues relating to the news media – including a primer on Sessions’ FOIA history (it’s not good – he placed a hold on bipartisan FOIA reform in 2014 over a 25-year sunset for FOIA’s exemption 5 – the bill ultimately died, and only removed another hold on similar legislation in 2016 after “he learned that some of his requested changes, which he did not detail, had been accepted”). The key takeaway: “Throughout his tenure in the Senate, Sessions repeatedly opposed FOIA reform and other transparency legislation.” When asked by Sen. John Cornyn (R-Texas) during his Senate confirmation hearing for Attorney General if he would support FOIA and the public’s right to know, Sessions agreed; later when asked by Sen. John Kennedy (R-Louisiana) if he would uphold FOIA, Sessions said it was “the law and would see it carried out.”
FOIA-released records show that the Office of Government Ethics (OGE) “lost contact with the Trump-Pence transition” for at least ten days after the election. Josh Gerstein writes the OGE director Walter Shaub urged “the Trump team to advise his office in advance about potential Cabinet picks, so they can be vetted for conflicts of interest prior to their selection being announced publicly. In at least some instances, the Trump team seems to have ‘precleared’ nominees with the ethics office. However, the released records are heavily redacted in some places, making it difficult to follow the online discussions.”
Declassification at the Presidential Libraries
Archive FOIA Project Director Nate Jones recently penned the inaugural posting for a new series on Presidential Library activities, which focuses on how classified presidential library records are released to the public. It is the first contribution of a regular Federalist column by Jones that will discuss the activities and new document releases of the Presidential Libraries. If you have any observations, questions, or hot releases please send them to Jones via Twitter to @NSANate.
New Director Takes Over OGIS; OGIS Issues New Regulations
Eight months after Jim Holzer stepped down, the Office of Government Information Services, OGIS, has a new director in Alina Semo. Semo comes to OGIS from the National Archives’ Office of General Counsel. While at NARA she “helped rewrite the National Archives’ FOIA regulations.” Prior to her tenure at NARA Simo “served as Director of Litigation in the Office of General Counsel” for the FBI. In a good interview with Semo posted on the OGIS blog, Semo notes that she’s eager to lead “a staff who is committed to both FOIA mediation and compliance issues.” The National Security Archive is excited to work with Semo, and has high hopes for her tenure – not least of which being OGIS beginning to issue official advisory opinions on FOIA.
OGIS has recently proposed new FOIA regulations, available for comment now on the Federal Register. The regulations are good but, as they note, focus on only one of OGIS’s three primary functions: dispute resolution services. OGIS’s mediation services are undoubtedly valuable – the National Security Archive contacts OGIS regularly when issues crop up with agencies – but agencies are not required to adhere to any OGIS suggestions that they propose during mediation, and in our experience frequently don’t.
OGIS notes that the regulations will be updated in the future to include provisions on its two other functions: reviewing agency FOIA policies, procedures and compliance; and identifying procedures and methods for improving compliance under the FOIA. The Archive looks forward to those updates, as agencies will likely pay more attention to OGIS’s expertise when it is issued through compliance mechanisms – such as advisory opinions.
ODNI Report on Improving Declassification – Does it Listen to Requester Community Suggestions?
December 2016’s ODNI report, “Improving the Intelligence Community’s Declassification Process and the Community’s Support to the National Declassification Center,” examines how to improve declassification. Focusing primarily on automatic declassification of historically significant documents 25 years or older, Steve Aftergood points out, the report “does not actually present any declassification policy proposals. Instead, in a near-parody of a government report, it calls for establishment of new working groups to write other reports and generate further recommendations.” The report does not answer important questions regarding, among other things, agency “equity” in older records that often require time-consuming, needless re-reviews, or how to handle information that is technically properly classified but would be common sense to release.
The report also did not include any of the suggestions Nate Jones made during the Public Interest Declassification Board’s 2016 public meeting on improving declassification, including further improving the efficiency of the National Declassification Center and expanding its authority; fully realizing the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document; and getting PIDB “into the declassification business.”
Transparency advocates should also keep a close eye on changes to the Executive Order governing classification; Aftergood says, “the report notes that agencies favor numerous revisions to President Obama’s executive order 13526 on classification policy, so that ‘updating the E.O. will be a major undertaking.’”
The FOILIES are Back
The Electronic Frontier Foundation is now accepting nominations for the 2017 Foilie Award – the award that recognizes the worst in government transparency. Anyone can nominate an agency and there is no limit to the number of nominations you can make; the deadline for nominations is January 31.
Need some inspiration? Last year the National Security Archive nominated one especially bad FOIA response from the Energy Department, in which the Department withheld 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 pursuant to FOIA’s exemption 5 – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject. Our 2015 nominations are here.
Cyber Risks to Medical Devices
December 2016’s nonbinding guidance from the Food and Drug Administration on “Postmarket Management of Cybersecurity in Medical Devices” draws attention to the growing vulnerability of networked medical devices. This document is one of 11 new additions that were posted in the National Security Archive’s Cyber Vault on Wednesday, January 11. The guidance “applies to any marketed and distributed medical device including: 1) medical devices that contain software (including firmware) or programmable logic; and 2) software that is a medical device, including mobile medical applications.” Perhaps most significantly, the guidance suggests that manufacturers have a process for assessing the severity of patient harm if cybersecurity vulnerability is exploited, conducting a risk assessment to evaluate if the risk of patient harm is “acceptable” or not, and provides examples of which risks are acceptable and which are not.
Able Archer in Brooklyn
Nate Jones will be doing a book signing for Able Archer 83: The Secret History at Spritzenhaus33 in Brooklyn on the evening of January 19. Please come join us for the fun and enlightening event if you’re in the area!
This week’s #TBT pick is a 2010 posting from the Archive’s Nuclear Vault on the Air Force’s attempts in the 1950s and 1960s to refute novels and Hollywood films like Fail-Safe and Dr. Strangelove, which raised questions about control over nuclear weapons. To do so, the Air Force produced a series of documentary films, including one on called “SAC Command Post” that “tried to undercut Dr. Strangelove’s image of a psychotic general ordering nuclear strikes against the Soviet Union by showing that nuclear war could not be ‘triggered by unauthorized launch.’” Other films included “Project Headstart,” which depicts SAC’s first airborne alert test, and “Development of the Soviet Ballistic Missile Threat,” which shows the role of Air Force intelligence in the “missile gap” debates in the lead-ip to the 1960 presidential election.
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This a version of this article originally appeared in The Federalist, Newsletter of the Society for History in the Federal Government.
The Presidential Records Act of 1978 (PRA) established that the papers of U.S. Presidents legally belong to the American people. According to the law, the Archivist of the United States assumes responsibility for the custody, control, preservation, and accessibility of Presidential records after the President leaves office. Moreover, the Archivist of the United States has the “affirmative duty to make such records available to the public as rapidly and completely as possible.”
This is the first contribution of a regular Federalist column discussing the activities and new document releases of the Presidential Libraries.
Presidential records are made available to the public through each administration’s Presidential Library, which are located across the United States. The libraries themselves are often federal and private amalgamations. For example, while all of the records at the Ronald Reagan Presidential Library are maintained by the National Archives and Records Administration, the Library’s recreation of the Oval Office—and its other museum exhibits— were financed by private funding through the Ronald Reagan Presidential Foundation.
The PRA states that the public can request Presidential records “in accordance” with the Freedom of Information Act (FOIA) beginning five years after the President leaves office. In addition to the exemptions under FOIA in which documents can be withheld (except, wisely, for FOIA’s Exemption Five), the PRA defines six additional exemptions through which Presidential documents can be withheld for 12 years after the President leaves office. After this 12-year limit, both the former President and current President also retain the ability to invoke executive privilege and stop the release of information, though this privilege has rarely been used.
Unfortunately, the release of Presidential records is very rarely “rapid,” especially if the documents were previously classified, as a substantial portion of those sought by researchers are. In most cases, a researcher must file a FOIA request with the Library for the record they are requesting. Then, if the Library determines the record is classified (a process that often takes longer than a year), the requester must file a second Mandatory Review request with the federal agency that claims “equity” of the record. Recently, the National Security Archive received a response to a Presidential record request which took over 12 years to process. A more efficient system would empower the Libraries themselves, or perhaps the National Declassification Center, to more quickly declassify these historic documents.
Additionally, Presidential Libraries are embracing digital platforms to make their records available to the widest possible audience. While all Libraries are moving in this direction, some are better-utilizing digital resources than others. The best I have seen to date is the George H.W. Bush Library which has excellent, expansive, and well organized online collections of the President’s memcons and telcons with foreign officials, National Security Council Meetings, NSC Deputies meetings, and much more. Other libraries would do well to follow the Bush Library’s digital lead.
Future columns will alert readers to Presidential Library document releases and appraise them. If you have any observations, questions, or hot releases, please send them my way via twitter: @nsanate.
Today, Colombians mark 25 years of impunity for members of the police implicated in the December 16, 1991, killing of 20 members of the Colombian Nasa-Paez indigenous group in the Caloto, Cauca, massacre. With Colombia now poised to enter a long period of transitional justice, cases like Caloto are emblematic of how Colombian courts have largely failed to bring members of the Colombian security forces to justice even in cases where they have succeeded in putting away their civilian collaborators.
Civilian judicial proceedings against two Cali police officials long suspected of helping narcotraffickers carry out the massacre only began in February 2015, more than 23 years after the killings and over 15 years after a military tribunal absolved the officers of any responsibility in February 1999. This is despite the fact that Colombian President Ernesto Samper formally recognized the state’s responsibility for the killings in 1995. The officers, Gen. Fabio Alejandro Castañeda Mateus and Maj. Jorge Enrique Durán Arguelles, were ordered to be re-tried in civilian court after Colombia’s Supreme Court of Justice found that the military prosecution “had as its sole purpose to render ineffective the accusation against Castañeda and Durán and to facilitate the cessation of proceedings for such grave violations of human rights.”
The details surrounding the case are both chilling and emblematic of wider problems in Colombia. A March 1993 cable from the embassy of US Ambassador Morris Busby considered the Caloto massacre in light of the impact that the surge of narco-paramilitary influence in the region had on traditional conflicts over land and landownership.
More than a year earlier, another US Embassy cable had reported that one of the owners of the “El Nilo” ranch where the massacre occurred, Luis Alberto Bernal Seijas, was “in DEA’s files,” meaning the US Drug Enforcement Administration. The Embassy said that Colombian authorities had issued arrest warrants for a lawyer and two employees of the Cali-based real estate firm owned by Bernal Seijas and his brother Jose Antonio, Sociedad Inversiones Piedras Blancas.
Luis Alberto Bernal Seijas was later convicted as an intellectual author of the crime in 1996, but spent more than five years evading justice before he was arrested for an immigration violation in Panama in 2001.
US intelligence records on his arrest depict him as a longtime drug trafficker with criminal associations going back as far as the Medellin drug cartel. The US Defense Intelligence Agency (DIA), for example, identified Bernal as a “Panama-based Colombian drug trafficker,” a “former pilot for the infamous drug trafficker Gonzalo Rodriguez-Gacha” and “the individual in charge of finances and logistics in Panama for the Colombian United Self-Defense Groups (AUC),” which was designated a Foreign Terrorist Orgnization by the US State Department later that year. The DIA added that Bernal’s Panama-based aviation company, which owned six planes, “was probably involved in the transhipment of large quantities of cocaine from Colombia through Panama.”
The declassified paragraphs of a subsequent Central Intelligence Agency (CIA) report, titled, “Narcotics: [deleted] Information on Individuals, Properties, and Compaines Associated with Expelled Colombian Narcotics Trafficker and United Self-Defense Forces of Colombia Collaborator Luis Bernal Seijas,” echo the earlier DIA analysis. Bernal Seijas had used the alias “Nicolas Bedoya Herrera” while on the run in Panama and had purchased “a sizable amount of property” and ran “several businesses” there. One of these was a “general aviation company [redacted] believed to have been used by Bernal for the transport of arms and drugs to and from Colombia.”
Twenty-five years later, nearly three entire pages of the a six-page CIA report on the intellectual author of the Caloto massacre remain classified. What might these redacted pages tell us about the police officials now being re-tried in civilian court? What will those proceedings tell us about collusion between narcotraffickers and government security forces in a deadly campaign against indigenous groups with territorial claims? Most importantly, will Colombia finally convict a member of the security forces in the 25-year-old Caloto massacre? Time will tell.
Release to One, Release to All – Law Enforcement Carve-out Citing Mosaic Theory a Slippery Slope
The Department of Justice is seeking comments on the “Release to One, Release to All” policy prepared by the Office of Information Policy (OIP); the comment period is open through 11:59 PM on December 23.
The draft contains two potential options for the timing of posting FOIA-processed documents: “1) agencies should post documents online as soon as administratively feasible following a release to a requester; or 2) agencies should post documents online as soon as administratively feasible, but only after a delay of five working days following release to a requester, to allow requesters a brief period of time with exclusive access to the requested records.”
The National Security Archive would be happy to see agencies posting documents either immediately or with a brief delay.
The potentially problematic part of the policy, however, is part B – the “good cause” exemptions to posting. The “good cause” exemption, if enacted, would contain a broad carve-out for law enforcement agencies wishing to not publicly release records under the so-called“mosaic theory” argument, in which intelligence agencies argue that someone could collect “seemingly disparate pieces of information and assembl[e] them into a coherent picture” in such a way that would pose a grave damage to national security. This could become an “any document, any time” excuse for some agencies to avoid their responsibilities under FOIA.
Department of Defense Releases Office of Net Assessment Documents
The Department of Defense recently posted a batch of 61 documents from Andy Marshall’s Office of Net Assessment (ONA) (the documents begin with “litigation release”). Topics covered include “Axis of Troubles: Male Youth, Factional Politics and Religion,” “Building ‘Hedgehogs’ in the Persian Gulf Region,” and “Why China Seeks Confrontation with the United States.” ONA was established in 1973 and Marshall served as its director from its inception until early last year; the office looks at a wide variety of significant issues, ranging from “nuclear proliferation, future naval warfare and the use of space,” and hopefully this batch of documents is an indicator that more ONA documents will eventually be made public.
Flynn “Did Not Have Permission” to Share Classified Information, Army Says
Army documents from a 2010 investigation into complaints Michael Flynn inappropriately divulged classified information on Afghanistan with foreign military officials “determined that Flynn did not have permission to share the particular secrets he divulged.” The documents were released to the Washington Post under the FOIA. Flynn was not punished for the disclosure, “after the investigation concluded that he did not act ‘knowingly’ and that ‘there was no actual or potential damage to national security as a result.’”
In an interview with the Post’s Dana Priest that was published on August 15, 2016, Flynn said of the investigation: “I’m proud of that one. Accuse me of sharing intelligence in combat with our closest allies, please.”
A month earlier at the Republican National Convention in July, Flynn condemned Hillary Clinton for her her private email set-up, urging the crowd to “lock her up,” and saying, “If I, a guy who knows this business, if I did a tenth, a tenth of what she did, I would be in jail today.”
First declassified listing of strategic warheads outside Russia in 1991 = 3,429
Newly declassified documents – released to coincide with the 25th anniversary of the Nunn-Lugar Act – show that the risk of nuclear proliferation at the end of the Soviet Union in 1991 was even greater than publicly known at the time, with 3,429 Soviet strategic warheads scattered outside of Russia in various former Soviet republics. The Nunn-Lugar legislation began a flow of U.S. funding that helped secure the post-Soviet nuclear weapons as well as reduce chemical and biological dangers, with the hands-on cooperation of Russian, Kazakh and American military personnel and scientists. The National Security Archive, in addition to posting ten newly declassified documents helping show just how much cooperative security worked, hosted a 25th reunion this week of dozens of Nunn-Lugar veterans including Russians, Kazakhs, and Americans – including Senators Sam Nunn and Richard Lugar – in the historic Kennedy Caucus Room of the U.S. Senate.
Obama Declassifies Top Secret Intelligence Files on Repression in Argentina
The Obama administration has released a comprehensive CIA report on Operation Condor operations showing that there existed plans to target Amnesty International officials as well as human rights groups, and planned overseas missions in Paris and London . “The basic mission of Condor teams to be sent overseas,” according to the CIA, was “to liquidate top-level terrorist leaders. Non-terrorists also were reportedly candidates for assassination,” the CIA reported in May 1977, and “some leaders of Amnesty Internation[al] were mentioned as targets.”
The secret CIA report is included among more than 500 pages of documents on repression during the military dictatorship in Argentina declassified today by the Obama administration as part of a commitment made by the president last March when he visited Buenos Aires on the 40th anniversary of the military coup.
Among the documents that the National Security Archive identified as newsworthy was a NSC summary of the torture of Alfredo Bravo the president of Argentina’s Permanent Assembly for Human Rights. The report was sent in August 1978 to President Carter’s National Security Advisor, Zbigniew Brzezinski, by his top aide for Latin America, Robert Pastor, who detailed the atrocities the military had committed against Bravo. Pastor reported that Bravo had been “subjected to a bucket treatment where his feet were held in a bucket of ice water until thoroughly chilled and then shoved into a bucket of boiling water.” Bravo had also been subjected to electrical shocks and “subjected to ‘the submarine’—repeatedly being held under water until almost drowned.”
Remains of Eighth Individual Listed in Notorious Guatemalan “Death Squad Diary” ID’d
The Guatemalan Forensic Anthropology Foundation (FAFG) has confirmed the identification of one of the victims associated with the notorious “Death Squad Diary,” or Diario Militar, a Guatemalan military document of the disappeared made public in 1999 by the National Security Archive. FAFG unearthed Juan Ramiro Estuardo Orozco López’s remains during its exhumation of ossuaries containing thousands of unidentified corpses at La Verbena cemetery in Guatemala City, and recently identified him by matching his body’s DNA with his family’s. In 1999, the Historical Clarification Commission concluded that some 200,000 civilians lost their lives during Guatemala’s civil conflict, among them 40,000 disappeared by state security forces. The National Security Archive continues its forensic archival work to find evidence of the fate and whereabouts of the disappeared, as well as to hold the Guatemalan state responsible for kidnapping and killing them.
TBT – U.S. Nuclear Terrorism Exercise Leaves Indianapolis in “Ruins”
Today’s #tbt pick is a 2012 posting on Mighty Derringer – a secret exercise by a U.S. government counter-terrorist unit that uncovered a host of potential problems associated with disrupting a nuclear terrorist plot in the United States. The posting contains almost 70 declassified documents and is notable for being the first publication of documents that provide in-depth exposure into all aspects of such an exercise – including the state-of-play at key points and the array of issues involved in disabling terrorist devices.
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The Guatemalan Forensic Anthropology Foundation (FAFG) has confirmed the identification of one of the victims associated with the notorious “Death Squad Diary,” or Diario Militar, a Guatemalan military document of the disappeared made public in 1999 by the National Security Archive. FAFG unearthed Juan Ramiro Estuardo Orozco López’s remains during its exhumation of ossuaries containing thousands of unidentified corpses at La Verbena cemetery in Guatemala City, and recently identified him by matching his body’s DNA with his family’s.
The Diario indicates that Orozco López, the second person captured by Guatemalan military intelligence in operations described in the document, was killed in Guatemala City on August 31, 1983, as he tried to flee his attackers. According to his entry, Orozco was an electrical engineer charged with radio interference for the Revolutionary Organization of People in Arms (ORPA), one of four principal insurgent groups that sought to overthrow the Guatemala government during the height of the country’s 36-year armed civil conflict.
Although the Diario Militar says he was shot down in the street, his killers disappeared his body, and his family knew nothing of his whereabouts until FAFG’s findings.
As part of its ongoing work to expose human rights violations committed during the conflict, FAFG undertook the exhumation at La Verbena cemetery in 2010 and launched a national campaign called “My Name Is Not John Doe” (Mi Nombre No Es XX) to convince relatives of the disappeared to provide the Foundation with DNA samples.
According to an email from José Suasnavar, FAFG’s deputy director, the exhumation of La Verbena and analysis of the bones is completed, but genetic analysis of some 15,000 DNA samples taken from bodies continues. The cemetery’s mass burying sites contained a mixture of corpses placed there when families were no longer able to pay for their graves, and bodies that were dumped anonymously. “With the identification of these individuals, we are getting closer to a level of the ossuary that may contain a greater quantity of remains buried as XX inside the cemetery,” said Suasnavar.
Orozco now becomes the 8th victim of the brutal campaign to hunt down, secretly imprison, torture, and kill suspected subversives in Guatemala documented by the Diario Militar during 1983-85. The first victims of the Diario to be identified by FAFG, in November 2011, were Amancio Samuel Villatoro and Sergio Saúl Linares Morales. Their skeletal remains had been exhumed at a former army detachment in Comalapa, Chimaltenango, in 2003. Another four victims, whose remains were found in the same at the same site, were identified in March 2012: Juan de Dios Samayoa Velásquez, Hugo Navarro Mérida, Moisés Saravia López, and a fourth whose identity has not been publicly disclosed.
Along with FAFG’s identification of Orozco, the ID in 2015 of José Zenon Hernández Cusanero – the seventh person among 183 men and women victims of the Military Diary to be restored to his family – affirmed the importance of documents in the fight for justice in Guatemala, denying again the military’s attempt to erase an individual and a history.
In 1999, the Historical Clarification Commission concluded that some 200,000 civilians lost their lives during Guatemala’s civil conflict, among them 40,000 disappeared by state security forces. The National Security Archive continues its forensic archival work to find evidence of the fate and whereabouts of the disappeared, as well as to hold the Guatemalan state responsible for kidnapping and killing them.
A 2007 Ohio Secretary of State review to assess the security of electronic voting systems used in the state discovered that “all of the studied systems possess critical security failures that render their technical controls insufficient to guarantee a trustworthy election.” The 300-plus page review was one of the dozen new documents that was posted in the National Security Archive’s Cyber Vault on Wednesday, December 7. The review highlights four areas of primary concern: a uniform failure to “adequately address important threats against election data and processes;” improper use of implementation of security technology; lack of trustworthy auditing capabilities; and “deeply flawed” software maintenance practices. The rest of this week’s updates can be read here.
Tom Blanton Testifies Before House on Overclassification
National Security Archive director Tom Blanton testified this week on the “arbitrary and capricious classification system” before the House Oversight and Government Reform Committee. The entire written testimony is a must-read, and the video of Blanton’s testimony – along with expert testimony from the Federation of American Scientists’ Steve Aftergood, Project on Government Oversight’s Scott Amey, and former ISOO Director William Leonard – can be found here. The main takeaway? The problem is “an arbitrary and capricious classification system that lacks internal and external credibility and contains too many secrets. This system shields government misconduct, obstructs Congressional and public oversight, retards scientific progress, and cedes enormous power to its enforcers, the securocrats. It’s time to write a law that reduces government secrecy.”
Blanton also recently visited with PBS’s The Open Mind to discuss the 50th anniversary of the Freedom of Information Act, declassifying the presidency, and more. Go here to watch the entire 30-minute interview.
Three Steps to Improve Classification and Declassification System
National Security Archive FOIA Project Director Nate Jones presented three tangible steps that could be taken to fix the classification and declassification system today before the Public Interest Declassification Board. Jones, echoing some of Tom Blanton’s House testimony, urged the Board to: further improve the efficiency of the National Declassification Center and expand its authority; fully realize the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document; and “get into the declassification business.”
Jones was joined by Steve Aftergood, the Brennan Center’s Liza Goitein, and Patrice McDetmott of OpenTheGovernment.org. All of their White Papers can be found on the PIDB’s blog, Transforming Classification.
The National Declassification Center’s Sheryl Shenberger also presented, commenting that the NDC should, among other things, be given more declassification authority, particularly of historical records. Her comments do not appear on PIDB’s blog – but it would be useful if they were added alongside Jones’s and others.
Internet Archive Publishes NSL
The Internet Archive, a nonprofit digital library of 279 billion (and counting) webpages, including “irreplaceable webpages that have been erased elsewhere,” recently announced its plan to set up a mirror repository in Canada, citing concerns of increased government surveillance under a Trump administration.
The announcement comes on the heels of an “unqualified success” for the Internet Archive. IA fought back against a gag order contained in one of the FBI’s infamous National Security Letters (a 2013 District Court ruling found the everlasting gag orders unconstitutional) directly in a letter to the FBI that challenged the letter’s legal and constitutional validity. The FBI backed down, and the Internet Archive posted the letter.
Food Stamp Benefit Info
U.S. District Judge Karen Schreier recently ruled against the Department of Agriculture and its invocation of FOIA exemption 4 (trade secrets) to hide information on “the Supplemental Nutrition Assistance Program – SNAP, formerly known as food stamps.” A South Dakoka newspaper went to court in 2011 after it was denied the records, and, 5 years later, the court sided with the paper. Judge Schreier ruled, “This information includes a store’s location, layout, pricing, product selection, and customer traffic. … while SNAP information may provide some insight into a store’s overall financial health, the data is a small piece in a much larger picture—disclosure would have a nominal effect on competition in the grocery industry.”
House Bill Requires Declassification Review of Intel Reports on transferred Guantanamo Detainees
The House recently passed a bipartisan intelligence policy bill that calls for an interagency panel on “Russian attempts to “exert covert influence over peoples and governments.” The bill “also updates whistleblowing procedures in the intelligence community. And it requires a declassification review of intelligence reports on detainees transferred out of the military prison at Guantanamo Bay by both Presidents Barack Obama and George W. Bush.”
Soviet Response “Unparalleled in Scale”
A National Security Archive posting this week, reinforcing a new book by Nate Jones, reveals that NATO war game Able Archer 83 simulated nuclear launch procedures so realistically that it triggered a Warsaw Pact response “unparalleled in scale” and risked actual nuclear war. This high-level review “strongly suggest[ed]” to its authors, the President’s Foreign Intelligence Advisory Board, “that Soviet Military leaders may have been seriously concerned that the U.S. would use Able Archer 83 as a cover for launching a real attack” and that “some Soviet forces were preparing to pre-empt or counterattack a NATO strike launched under cover of Able Archer.” Now available to purchase, Able Archer 83, tells the story of this dangerous nuclear exercise, the generals who ran it, and the American and Soviet leaders it affected, through a selection of declassified documents pried from U.S. and British agencies and archives, as well as formerly secret Soviet Politburo, KGB, and other Eastern Bloc files.
FOIA @ 250
250 years ago, two centuries before the United States enacted the FOIA, the Swedish Parliament passed the Ordinance on Freedom of Writing and of the Press, the world’s first law requiring “publicity for official documents.” The Finnish-Swedish enlightenment thinker and politician Anders Chydenius was the champion of this 18th century open records law. “Historians cannot trace a direct line from Sweden’s 1766 law to the U.S. law of 1966, but the Swedish and Finnish idea of publicity for official documents percolated through the 19th century movement in the U.S. that changed common law notions – that requesters had to demonstrate a need to know before they could get government records – into the right to know, now recognized as a fundamental human right,” said Archive director Tom Blanton. The National Security Archive’s commemorative posting can be found here.
TBT pick – The Negroponte File
This week’s #TBT pick is the Negroponte File. Originally posted in 2005, it contains “392 cables and memos [that] record Negroponte’s daily, and even hourly, activities as the powerful Ambassador to Honduras during the contra war in the early 1980s. They include dozens of cables in which the Ambassador sought to undermine regional peace efforts such as the Contadora initiative that ultimately won Costa Rican president Oscar Arias a Nobel Prize, as well as multiple reports of meetings and conversations with Honduran military officers who were instrumental in providing logistical support and infrastructure for CIA covert operations in support of the contras against Nicaragua –‘our special project’ as Negroponte refers to the contra war in the cable traffic.”
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