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Government Declassification Watchdog: End Wasteful Equity Re-Reviews; End “Pass/Fail” Shortcut; Prioritize High Interest Document Sets.

January 20, 2015
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President Obama and the National Archives have created a good engine for mass declassification, the National Declassification Center.  But as its unacceptable 41 percent denial rate shows, several of its pistons are misfiring and need to be primed for declassification.

The most controversial recommendation in the Public Interest Declassification Board’s most recent report may not be its most important.

In Setting Priorities: An Essential Step in Transforming Declassification the PIDB –composed of members appointed by the President and both Congressional parties– recommended that “Topic based declassification should be the normal process rather than the exception.”  This recommendation has stirred archivists, researchers, and open government advocates (and more on it below!), but the report also includes at least two other recommendations which the National Security Archive believes are even more important.

The first recommendation is a head-on attack against the wasteful referral and consultation re-review process.  “Clinging to manually-intensive processes diverts increasing dwindling resources,” the PIDB writes, “There must be an understanding and agreement that the current practice of having one, two or more persons conduct a laborious page-by-page declassification assessment for each record under review is an unsustainable practice.  Amen.  The National Security Archive has long argued this.  And, despite the National Declassification Center’s refusal to follow his instruction, so has President Obama.  There is no reason fourteen sets of eyes are needed to review historic documents for declassification.  The National Declassification Center and other government declassifiers should follow the Public Interest Declassification Board’s advice and end the wasteful practice of multiple declassification re-reviews of historic documents.

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Perhaps as helpful as any of its recommendations, the PIDB has “lifted the curtain” on the convoluted, “laborious,” “unsustainable,” re-review process that documents at the National Declassification Center are herded through.  The National Security Archive has long called for a simplified, single review of these 25-plus-year-old documents.

Despite likely agency outcry, the fact is that past reviews show that a “one set of eyes-one decision” review is possible, effective, and desirable.  Both the JFK Assassination Records Review Board and (to a lesser extent) the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group have shown that declassifiers can effectively be unleashed from the bonds of mandated equity re-review.  The PIDB was acutely aware of this as they authored their report, noting the “more stringent standard for allowing continued classification” utilized by the JFK Assassination Records Review Board.  These two instances have shown that the danger of one overzealous reviewer redacting too much information can be assuaged with proper training, quality review, and utilization of Executive Order 13526’s provision 3.1(d).  President Obama was also aware of the wastefulness of multiple equity re-reviews of historical documents when he created the National Declassification Center.  The president instructed the NDC that “further referrals of these records are not required except for those containing information that would clearly and demonstrably reveal [confidential human sources or key WMD design concepts];” but the NDC chose not to go this route and employed multiple equity reviews.  The extremely high (41 percent) denial rate is the result of the NDC’s refusal to embrace the president’s instruction.  Perhaps the PIDB can still force it to.

The president says to end referrals... But we won't.

The president says to end referrals.  So why didn’t the NDC?

The second important recommendation is the PIDB’s call to “End pass/fail determinations and identify necessary redactions for topic-based reviews” at the National Declassification Center.  As the PIDB explains, “a single word in a record determined to require continued classification beyond 25 years will cause the entire record to ‘fail.’  This process, originally designed by agencies to conserve limited resources, actually does the opposite.”   Instead of taking care of declassification business, this “page by page” shortcut shoves these historic documents back into the vaults (still classified) until a requester requests another “wasteful, expensive” re-reveiw.

The ineffectiveness of pass/fail review can be seen in the figures of the National Declassification Center’s own statistics.  According to the NDC’s December 2013 report, it has completed “The successful retirement of the 352-million-page backlog,” but a closer look at the NDC’s figures shows that only 77 million pages (59 percent of those released to the public) were actually declassified.   The remaining 53 million pages were returned to their SCIFs, where they will await re-review at some future point.  (According to the NDC report, an additional 222 million pages have “successfully” completed declassification review but have not completed NARA’s boxing and processing procedures –and possibly another Department of Energy review– and are not available in the stacks for researchers to peruse.  It is possible they may be available if specially requested.)

A comparison with government-wide Mandatory Declassification Review figures (page 12) reveals just how low the NDC’s declassification rate is.  Documents requested under MDR are released to the public in whole or in part almost 92 percent of the time.  This release rate would be even higher if it included only documents 25 years or older.  As the PIDB report accurately details, the “wasteful, expensive” shortcut of pass/fail review is a primary impediment to an effective National Declassification Center.

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Stuborn adherence to equity Re-review, “Pass/Fail” expedience, and overly cautious review are the reasons why declassification of historic documents at the National Declassification Center are declassified at a drastically lower rate than current classified documents.  Chart (same as above) created by Lauren Harper.

Furthermore, the 59 percent of documents declassified by the National Declassification Center have been described by researchers as “low hanging fruit,” of little value to researchers of military and foreign policy history.  (And, as I discuss below, yes this is a normative argument, I’m sure someone, somewhere, is eager to pore through the eleven boxes of declassified WW2-era fathograms.)  At its inception, the NDC acknowledged the importance of prioritizing the declassification of  documents with “high public interest.”  Unfortunately, the goal of declassifying what researchers want to see appears to have been dropped along the way (one NDC report noted only 1 percent of all documents in the backlog were “High Interest, Easy to Process“).

Which brings me to the recommendation presented in Setting Priorities that has been most controversial among archivists, researchers, and open government advocates.  This recommendation calls for agencies, including the National Declassification Center, to move toward “topic-based prioritization [that] would ensure declassification review of records of the greatest potential for use by the public, historians, public policy professionals and the national security community itself.”

This paradigm shifting suggestion has led to criticism.  Steve Aftergood has warned of the danger that moving toward prioritized declassification could undermine the historic Automatic Declassification forcing mechanism created by a 1995 Clinton Administration Order (though presidents since Clinton, including Obama, have largely exempted agencies from “automatically” complying –they must still review every document– from 25 year Automatic Declassification, and hence the 352 million page backlog of documents older than 25 years at NARA).

Others have warned of the potential danger of damaging archival provenance by “Swiss cheese declassification.”  The National Security Archive strongly agrees that it would be a critical mistake to corrupt the provenance of collections by pulling documents about certain topics for declassification while leaving the rest unprocessed.  If prioritization were to occur, it would have to be the prioritization of record series (or perhaps box level), not of topics cutting across all of NARA’s backlog such as “Cold War in Europe, 1947-1991″ (which is likely impossible anyways).

Another longstanding critique is that targeted declassification reviews are inherently unfair.  Warren Kimball, who served for six years as chair of the State Department’s Historical Advisory Committee, summarized this view in the aftermath of the Congressionally mandated Kennedy Assassination Records Review Board: “Simply put, government has no business selecting what topics to open and what not to review…If we give in to our and the general public’s fascination for the sensational, the public will gain access only to controlled pieces of information.”  What Kimball does not state is that by NARA’s own admission, documents available to researchers have already very much been controlled by government employees… by throwing them away; NARA estimates that only two to five percent of all documents created by the federal government are “judged to have continuing value” and preserved.

The National Security Archive agrees with the important concerns raised in the above criticisms, and does not support the targeted declassification of the disparate topics listed in an appendix to the PIDB report.  (The PIDB itself concedes the list of topics it compiled by soliciting researcher interest is “too extensive and diffuse… to inform decisions leading to implementation of a priority-based declassification program.”)

In principle, the National Security Archive supports the Public Interest Declassification Board's recommendation for the "proritization fo the most historically significant and sought-after information the public desires."   The report is certainly worth a read.

In principle, the National Security Archive supports the Public Interest Declassification Board’s recommendation for the “prioritization of the most historically significant and sought-after information the public desires.” The report is certainly worth a read.

But the National Security Archive does support the targeted (and thorough) declassification of key series of records while continuing bulk declassification of all records in NARA’s possession.  My colleague Bill Burr has consistently argued for the prioritized declassification of the records of “principal policy makers… Secretary of State, Secretary of Defense, Chairman/Joint Chiefs of Staff, and director/Arms Control and Disarmament Agency… Because policy makers are confronted with a broad range of issues, declassification of their records will meet a variety of researcher interest in terms of geographic areas and functional subject areas (military, economic, political-diplomatic, intelligence, cultural).”

The National Declassification Center has made some wise decisions of top level material, including the opening of the Arms Control and Disarmament Agency’s Director’s files on Non Proliferation Treaty negotiations and records of the Under Secretary of State Nicholas Katzenbach.

The NDC needs to continue to prioritize and declassify important high level, “high coverage” files like these, including: State Department Bureau of Intelligence and Research files; records from Assistant Secretaries of State; Joint Chiefs of Staff Histories, Command Histories, Unit Histories, Wing Histories, Fleet Histories, (and supporting documentation); other classified internal histories including those in the classified editions of the CIA’s Studies in Intelligence and Clandestine Service Histories Project, records schedule and accessioning documents which will help researchers target documents by title or description, Inspectors General reports, and indexes of reports produced by agencies –including the CIA’s Monthly Index of Photographic Exploitation Products; and yes, finally –to gain public support and demonstrate declassification clout– the remaining 1,171 distinct documents related to the John F. Kennedy assassination held by the National Archives whose release to the public was postponed until 2017.

We know that prioritization of records such as the above can be difficult.  Further on in his recommendation, Burr presciently –but unsuccessfully– warned “Rather than going first after low-hanging fruit, the emphasis at NDC should be on high quality records, beginning with the office files of top civilian and military policy makers… Researchers would prefer high quality records across the spectrum of records groups.  In any event, there is going to be a learning  curve for everyone when it comes to tackling the high quality, difficult records and it is better that NDC get started on this now, not later.”

In addition to the records of the heads of civilian and military organizations, I believe that the NDC should also prioritize the records held at Presidential Libraries (and under NARA control).  These libraries, due to lack of resources, the wasteful equity referral re-review system (that the PIDB has called to end), and –yes, often mismanagement–,  are woefully behind in their mission of presenting presidential documents to the public.  If the NDC were to prioritize and succeed at effective (not 59 percent!) declassification of these critically important historic presidential documents it would be a welcome victory for the Center.

Finally, despite the National Security Archive’s criticisms of the National Declassification Center’s low release rate and inability to declassify high interest documents, we believe that the NDC is one of President Obama’s most important transparency initiatives.   Archivists, researchers, historians, and public access advocates must work to ensure that it is preserved and funded into the next administration and beyond.  President Obama and the National Archives have set up a good engine for declassification of historic declassification –though several of its pistons are currently misfiring.

If the National Declassification Center is able to adapt to the recommendations of the PIDB, including ending the “unsustainable practice” of multiple equity re-review, ending the “wasteful, expensive” shortcut of pass/fail review, and endeavor past “low hanging fruit” and declassify high level, high interest documents –including those held at Presidential Libraries, then it will have succeeded in following President Obama’s instruction to harness the “efficient and effective utilization of finite resources available for declassification.”

Remains of Seventh Individual Listed in Notorious Guatemalan “Death Squad Diary” ID’d

January 16, 2015
Jose

José Zenon Hernández Cuzanero, listed as number 112, was killed in Guatemala City on April 23, 1984.

 

By Alexandra Smith

The Guatemalan Forensic Anthropology Foundation (FAFG) has confirmed the identification of a seventh individual listed in the notorious “Death Squad Diary,” or Diario Militar, a document made public by National Security Archive Senior Analyst Kate Doyle in 1999. The remains of José Zenon Hernández Cuzanero were exhumed in 2011 from an ossuary containing thousands of unidentified corpses at La Verbena cemetery in Guatemala City, and identified earlier this month.

The Diario indicates that Hernández, listed as number 112, was killed in Guatemala City on April 23, 1984, while attempting to flee his military captors. He was struck, the Diario says, by three M-16 bullets. The cemetery’s register confirms this fate, noting that his unidentified body was discovered on a public road, having sustained bullet wounds penetrating his chest.

According to FAFG, a DNA match led to the identification of José Zenon Hernández Cuzanero, whose family members contributed samples of their own DNA in the hope that it would help lead to his discovery.

According to the family, Hernández left the family’s village for the capital in late 1983, hoping to avoid persecution by the military. When he never returned, they assumed something had happened to him, but did not rule out the possibility he had fled to another country. Hernández’s brother, Paul Hernández Cuzanero, also disappeared, but has not been found.

The first two victims associated with the Diario Militar, Amancio Samuel Villatoro and Sergio Saúl Linares Morales, were identified by the Guatemalan Forensic Anthropology Foundation in November 2011. Their skeletal remains had been exhumed at a former army detachment in Comalapa, Chimaltenango, in 2003 (also reported on the Archive’s website). 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 yet been officially confirmed.

The identification of José Zenon Hernández Cuzanero, the seventh person among 183 victims of the Military Diary to be restored to his family, affirms the importance of documents in the fight for justice in Guatemala, denying again the military’s attempt to erase an individual and a history.

 

 

FOIA Ombuds Office Remains Director-less, Why Transparency (Obviously) Isn’t Causing Washington Gridlock, DOJ Waits 8 Years to Disclose “Game Changing” Dox that Could Have Prevented Man’s Imprisonment, and Much More: FRINFORMSUM 1/15/2015

January 15, 2015

ogisThe Office of Government Information Services (OGIS) – the seven-person federal FOIA ombuds office tasked with monitoring government-wide FOIA compliance and policy –  still has not hired a new director to replace Miriam Nisbet, who retired at the end of November, or even posted a call for applicants to apply for the position.  It’s unclear why the crucial, yet understaffed and underfunded, office has yet to be given the green light to hire a director, considering the growing demand for its mediation and compliance services. Hopefully OGIS will soon be able to begin the hiring process, which will benefit FOIA requesters and processors everywhere.

Transparency, rather than divisive party politics, is becoming a scapegoat for Washington’s current gridlock. In a recent Washington Post op-ed that is drawn from a longer paper, the Bauman Foundation’s Gary D. Bass, the Project on Government Oversight’s Danielle Brian, and Brookings Institution visiting fellow Norm Eisen argue against these recent anti-transparency attacks and counter “Not only is there no relationship between openness and dysfunction, but more secrecy can only add to that dysfunction.” Francis Fukuyama responded to the opinion piece, arguing that transparency undercuts Congressional deliberation (although FOIA doesn’t’ apply to Congress), disclosure rules imposed on public officials deter qualified candidates from entering government (ignoring that there are numerous qualified people in government and that the officials who benefit the most from secrecy are arguably the least qualified and most corrupt), and that it makes deal-making in a decentralized system difficult (despite the fact that, if used correctly, FOIA exemption (b)5 would protect agencies making these kinds of deliberations and, again, that Congress is exempt from the FOIA). As Bass, Brian, and Eisen note, “While FOIA and other post-Watergate sunshine laws may need updating, their minor flaws are hardly causing government dysfunction or preventing government officials from having candid conversations. In 2013, there were 81,752 ‘deliberative’ moments — the most ever — where executive-branch information was withheld from reporters and the public under FOIA. If anything, the problem is that too many decisions are made in secret, not too few.”

Eric McDavid, recently released from prison after the DOJ very belatedly released dox showing he was likely entrapped.  Photograph: Jose Luis Villegas/AP

Eric McDavid, recently released from prison after the DOJ very belatedly released dox showing he was likely entrapped. Photograph: Jose Luis Villegas/AP

The Department of Justice (DOJ) has belatedly released thousands of pages of “game-changing” documents (in response to a FOIA request) showing an FBI informant likely entrapped the leader of an eco-terrorist cell, leading to a 19-year prison sentence. The case centers on FBI informant “Anna,” “eco-terrorist cell” leader Eric McDavid, and the ten-day 2007 trial that saw McDavid sentenced to 19 years in federal prison. During the trial federal prosecutors portrayed “Anna” as a neutral intelligence gatherer, but heavily redacted documents obtained through the FOIA show she likely entrapped McDavid by “encouraging him to behave conspiratorially in the hope of romantic fulfillment.” Federal judge Morrison England said of the DOJ’s late disclosures, “I’ve never heard or seen anything like this,” and that McDavid’s treatment was “not fair.” McDavid was released last week after serving nine years of his sentence. The DOJ insists the withholding of the crucial documents was an “inadvertent” mistake, telling the to the New York Times last week that “the documents were produced to the defendant promptly after their discovery.”

A New York Times (NYT) FOIA lawsuit has won the partial release of a 231-page DOJ Inspector General (IG) study on the FBI’s creeping surveillance activities under the FISA Amendments Act of 2008. The heavily redacted report notes that in 2008 the bureau “assumed the power to review email accounts the N.S.A. wanted to collect through the ‘Prism’ system,” and by 2009 the FBI was “retaining copies of unprocessed communications gathered without a warrant to analyze for its own purposes.” The report further found that by 2012 the FBI was nominating foreign email accounts and phone numbers, including those that would be obtained through the NSA’s “upstream” system, for collection.

Petraeus and Broadwell in 2011. Photo: International Security Assistance Force.

Petraeus and Broadwell in 2011. Photo: International Security Assistance Force.

Last week the FBI and DOJ prosecutors recommended bringing felony charges against former CIA head Gen. David Petraeus for giving classified information to his mistress and biographer Paula Broadwell. It is now up to Attorney General Eric Holder, who “has led a crackdown on government officials who reveal secrets to journalists,” to decide whether or not he will seek an indictment of the retired four-star general. The Freedom of the Press Foundation’s Trevor Timm noted that while initial reporting did not indicate as such, the prosecution – should it occur – would likely be under the Espionage Act of 1917, which does not require that a crime be committed (or intended) for conviction. Therefore, while by all accounts Petraues’ leaks did not harm national security, he could still be charged. Timm notes “no one should be charged with espionage when they didn’t commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one’s rank in the military or position in the government.”

The long-delayed leaks trial has begun for former CIA officer Jeffrey Sterling, accused of disclosing classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to NYT reporter James Risen for a chapter in his 2006 book, State of War. Sterling was charged in 2010, but debates over whether or not the DOJ would force Risen to testify held up the proceedings. The DOJ dropped its subpoena for Mr. Risen’s testimony on Monday.

A recent quarterly progress report on the government-wide insider threat program found the program is well behind schedule. The January 2017 target for achieving the program’s Initial Operating Capability was determined to be “at risk,” and the target date for the program’s Full Operating Capability has yet to be set.

The Director of National Intelligence recently released its congressionally mandated IG report on overclassification of information within the intelligence community. Matthew Aid noted the IG, which found no instances of overclassification, “apparently did not look very hard,” saying the inspector general should have talked to Steven Aftergood of the Federation of American Scientists and the National Security Archive for “dozens of instances where the ODNI and its subordinate agencies have knowingly and willfully over-classified information.”

The DOJ submitted a motion in the U.S. District Court for the Northern District of California on Friday seeking to have most of Twitter’s lawsuit, which alleges the DOJ “violated [Twitter’s] First Amendment rights when it restricted [Twitter’s] ability to reveal information about national security requests for user data” Twitter receives, thrown out. Last January the DOJ negotiated more relaxed limits for companies reporting on the number of national security requests they receive with five firms – not including Twitter. Twitter found that the new limits continued to be too strict, and ultimately sued “after the FBI barred it from releasing a transparency report that the bureau said contained classified information that was inconsistent with the department guidelines released last January.”

Donald N. Wilber, an archeologist and authority on ancient Persia, served as lead U.S. planner of TPAJAX (along with British SIS officer Norman Darbyshire).

Donald N. Wilber, an archeologist and authority on ancient Persia, served as lead U.S. planner of TPAJAX (along with British SIS officer Norman Darbyshire).

Today’s #tbt document pick is one first disclosed by NYT reporter James Risen – the 1954 CIA history of operation TPAJAX to overthrow Iranian Prime Minister Mohammad Mossadeq. The 200-page report, disclosed in 2000, is written by one of the operation’s chief planners, Donald Wilber, and based on agency cables and Wilber’s interviews with other agents involved in the operation. Considering the Department of State just blocked the release of the already delayed Foreign Relations of the United States volume of U.S. covert action in Iran in the 1950s, maybe it’s time for Risen to produce another leak?

Happy FOIA-ing!

CBP Drone Fleet Under Scrutiny, Kill/Capture List Published, and Much More: FRINFORMSUM 1/8/2015

January 8, 2015
CBP drone take off from Fort Huachuca in Sierra Vista, Ariz. (Matt York/AP)

CBP drone take off from Fort Huachuca in Sierra Vista, Ariz. (Matt York/AP)

Customs and Border Protection (CBP) caught 120,939 illegal boarder crossers in Arizona during 2013, but CBP’s fleet of 24 drones providing aerial border surveillance aided in fewer than two per cent of the apprehensions. This statistic is cited in a recent Department of Homeland Security (DHS) inspector general audit that found “little or no evidence” CBP’s current fleet – that surveys a mere “100 miles of the Arizona border and 70 miles of the Texas border” – warrants the agency’s planned $443 million expansion of the program. The DHS audit is released while “Congress considers whether to spend more on drone surveillance to secure the borders as part of immigration legislation.”

WikiLeaks has released a July 7, 2009, CIA analysis entitled “Making High-Value Targeting Operations an Effective Counterinsurgency Tool,” highlighting the limited overall effect of “high value targeting” against the Taliban. The analysis notes “the Taliban has a high overall ability to replace lost leaders, a centralized but flexible command and control overlaid with egalitarian Pashtun structures, and good succession planning and bench strength, especially at the middle levels, according to clandestine and US military reporting.” The CIA has refused to confirm the authenticity of the WikiLeaks post.

Gen. Stanley A. McChrystals photo for "The Runaway General." Photo: U.S. Navy Petty Officer 1st Class Mark O’Donald/NATO.

Gen. Stanley A. McChrystal’s photo for “The Runaway General.” Photo: U.S. Navy Petty Officer 1st Class Mark O’Donald/NATO.

Der Speigel recently published the August 8, 2010, “Joint Prioritized Effects List,” the “first actual complete list” of every special operations force target in Afghanistan at a particular point in time to become available to the public. The notations in the list, commonly known as the Kill/Capture list, also reveal that Gen. Stanley McChrystal virtually banned the controversial night raids in March and April of that year after one killed two government officials and two pregnant women, only to relax the ban several months later. The list was one of the documents leaked by former National Security Agency (NSA) contractor Edward Snowden, and provides interesting context for Rolling Stones journalist Michael Hastings’ reporting on McChystal. Hastings’ reporting, which quoted McChystal about his contempt for civilian government officials and investigated his tactics in Afghanistan – including the controversial night raids – ultimately led to McChystal’s resignation.

The Pentagon press secretary announced this week that U.S. Central Command (CENTCOM) will lead a review into civilian casualties resulting from air strikes targeting the Islamic State in Iraq and Syria. CENTCOM has already investigated 18 allegations resulting in civilian casualties from the latter half of 2013 and determined 13 “were not credible;” the five remaining allegations are still under review.

Sharyl Attkisson is suing the USG for monitoring her personal and work computers. Photo: John P. Filo/CBS News

Sharyl Attkisson is suing the USG for monitoring her personal and work computers. Photo: John P. Filo/CBS News

While others have pointed out that much of what CBS reporter Sharyl Attkisson argues is government surveillance appears to be “everyday technological hiccups,” Attkisson is suing the U.S. government for monitoring her personal and work computers. Attkisson has previously insinuated the government was monitoring her communications, and a recent court filing alleges surveillance of her began around the time of her reporting on the “Fast and Furious” operation, and noticeably increased after her Benghazi investigation. Attkisson’s suit argues a “computer forensics expert has identified an unauthorized communications channel opened into her Toshiba laptop directly connected to an Internet Provider (IP) address belonging to a federal agency, specifically the United States Postal Service, indicating unauthorized surveillance.”

The FBI’s Post-Adjudication Risk Management (PARM) program subjects hundreds of its employees and contractors with ties abroad – like foreign language linguists – to “aggressive internal surveillance.” The program began after the 9/11 terrorist attacks over concerns that foreign actors would coerce linguists with access to classified information, and has expanded to encompass more than 1,000 individuals. Those placed in the program “face more frequent security interviews, polygraph tests, scrutiny of personal travel, and reviews of, in particular, electronic communications and files downloaded from databases.” Subjects are informed that they have been placed in the program, but are not provided any explanations why, an appeals process, or a way out.

McClatchy reported recently that since 9/11 “More than 8,700 defense and intelligence employees and contractors have filed [whistleblower] retaliation claims with the Pentagon inspector general.” Many government employees have found that in addition to delays in processing their complaints – over which time the whistleblower can experience years of ongoing retaliation –, the legal system fails to protect them, and they are in turn punished for their actions. The report also found that less than 20 per cent of claims filed since 9/11 have been investigated, with only four per cent substantiated. Sen. Chuck Grassley (R-IA) noted the low number of substantiated complaints isn’t surprising given the “inherent bias against whistleblowers in the [Pentagon’s] inspector general’s office.”

An internal FBI investigation based on 41,000 pieces of evidence collected from FBI offices around the country found “agents in every region of the country have mishandled, mislabeled and lost evidence” and found errors “with nearly half the pieces of evidence it reviewed.” Many of the problems seem to stem from the FBI’s 2012 transition to its Sentinel computer system, despite a DOJ IG report released in September finding Sentinel “reduced the number of lost documents and made it easier to share information.” The FBI suffered from other systemic problems in addition to its technical ones, including items being taken from evidence rooms and data entry errors; the report noted the FBI has more “weapons, less money and valuables, and two tons more drugs” than on the books.

The Justice Department has released thousands of pages of documents on its internal investigation into corrupt Nevada Senator John Ensign in response to a FOIA lawsuit brought by the Citizens for Responsibility and Ethics in Washington (CREW). The documents show the extent of Ensign’s coercion of political donors and business associates, and confirms the DOJ’s “skittishness” over pursuing a corruption case after losing high-profile cases against former Senators Ted Stevens of Alaska and John Edwards of North Carolina.

The National Security Archive recently pried loose a single memo from Mexico’s attorney general after a long fight to obtain information on the San Fernando Massacre – the killing of 72 migrants, primarily from Central America, on their way to the U.S. The crime, part of a larger pattern of abuse against migrants, was attributed to the Los Zetas cartel. Los Zetas told investigators that local police officers worked for them and participated in the attacks, and the memo names 17 San Fernando police officers to bolster that claim. The memo was released shortly after the disappearance of 43 college students near Iguala, Mexico, and as the Archive’s Michael Evans told the New York Times, while it’s a good sign the Mexican government released any information, “There have to be more documents.”

This week’s #tbt document pick is chosen with Michael Hastings’ 2010 profile of Gen. McCrhystal in mind, and is one of the top “45 FOIA News Stories of 2011.” Today’s document, obtained by the New York Times through a FOIA request and reported on April 19, 2011, is the DOD IG inquiry into the Rolling Stone profile of General McChrystal that found no proof of wrongdoing by McChrystal, his military aides, or his civilian advisers.

Happy FOIA-ing!

Declassified Memo of Rumsfeld’s Post-9/11 Middle East Visit Highlights Logistical Challenges; Unwavering Belief in WMD

January 7, 2015
No stranger to the region, Rumsfeld served as Middle East envoy under President Reagan. Here Iraqi President Saddam Hussein greets  Rumsfeld in Baghdad on December 20, 1983.

No stranger to the region, Rumsfeld served as Middle East envoy under President Reagan. Here Iraqi President Saddam Hussein greets Rumsfeld in Baghdad on December 20, 1983.

Less than one month after the September 11 attacks, Donald Rumsfeld embarked on a coalition building trip to the Middle East, his first visit to the region while serving as Secretary of Defense. Rumsfeld notes in his 2011 memoir Known and Unknown that at the time of his whirlwind October 3-5 visit to Saudi Arabia, Oman, Egypt, Uzbekistan, and Turkey, he knew that CENTCOM commander General Tommy Franks was planning to insert special operations teams into Afghanistan on the nights of October 6 and 7.1 Rumsfeld’s tour was therefore intended to shore up support for the U.S.’ nascent war on terror from the countries surrounding Afghanistan, and to assuage fears that U.S. military action in the region would be a “flash in the pan.”

The National Security Archive recently received Rumsfeld’s long sought Secret October 6, 2001, memo to the President recounting this trip.2 Requested in 2011 and recently released in part on appeal by the Interagency Security Classification Appeals Panel (ISCAP) – portions are still withheld to protect purported foreign government information and U.S. foreign activities – the memo complements previous reporting and provides new insights into planning for the war on terror, in particular the difficulties finding a base for air strikes against Afghanistan.

Rumsfelds October 6, 2001, memo to the President.

Rumsfeld’s October 6, 2001, memo to the President.

While Rumsfeld’s trip was ostensibly focused on Afghanistan and the hunt for Osama bin Laden, Iraq must have been in the back of the Secretary’s mind as he assessed Middle Eastern leaders’ willingness to assist the U.S.’ efforts in Afghanistan. On September 12, 2001, three weeks before his Mideast visit, Rumsfeld was already asking President Bush’s war cabinet if the 9/11 attacks didn’t present an “opportunity” to target Iraq.3 And even though President Bush informed National Security Advisor Condoleezza Rice on September 16 that Afghanistan would be the first target in the war on terrorism and that plans for Iraq were being put on hold,4 by September 29, less than a week before his Mideast tour, Rumsfeld had asked the Joint Chiefs of Staff to begin preparing Iraq war options with two objectives: finding WMD and plans for Iraqi regime change.

Rumsfeld visited Saudi Arabia first on October 3. Both American and Saudi camps agreed that the terrorist threat “is especially grave in light of the danger of weapons of mass destruction in the hands of states that sponsor terrorism.” It’s worth noting that the only portions of the Secret memo that remain withheld are excerpts surrounding mention of states supporting WMD. It’s probable this reference concerns Iraq (despite Rumsfeld’s February 11, 2001, appearance on Fox News’ Tony Snow in which he said “Iraq is probably not a nuclear threat at the present time,” and his own September 29 request that WMD evidence be found), however we will have to wait for a future, further release of this memo to be certain.

Transcript from Rumsfelds February 12, 2001 appearance on Fox News Live with Tony Snow.

Transcript from Rumsfeld’s February 12, 2001 appearance on Fox News Live with Tony Snow.

While Rumsfeld reports in the memo that his Saudi visit was a productive one, an October 3 DOD press release notes that immediately after the Saudi visit “The secretary downplayed reports that Saudi Arabia has failed to cut off financial support to terrorist organizations” and that the Kingdom refused to allow strikes on Afghanistan being launched from its bases.

The next day on October 4 Rumsfeld was received by Omani Sultan Qaboos, who vowed his nation’s wholehearted assistance in the U.S.’ war in terror. Qaboos urged Rumsfeld to address the “problems” caused by the Arab news media, primarily Al Jazeera, which promoted “the terrorists points of view.” (This isn’t the only time Al Jazeera would be a potential target of the war on terror; three years later media outlets would report that British Prime Minister Tony Blair talked President Bush out of bombing Al Jazeera headquarters in Qatar on April 16, 2004, a claim the U.S. government called “outlandish” despite its repeated criticisms of the network and earlier bombing of Al Jazeera outlets in Iraq and Afghanistan) After the Mideast trip, on October 6, 2001, CNN reported Rumsfeld had discussed the possibility of “staging” U.S. aircraft at air bases in Oman, but a senior official traveling with Rumsfeld told reporters this idea was later scrapped.

mubarakLater in the day on October 4 Rumsfeld had what he described as a “lively” visit with Egyptian president Hosni Mubarak. Securing Egyptian support was key for the Afghanistan campaign, Rumsfeld knew, because Egypt controlled the Suez Canal, which could provide U.S. aircraft carriers passage from southwest Asia to the Mediterranean. During their discussion Mubarak was adamant that the U.S. focus in the war on terror should be on resolving the Israeli-Palestinian conflict rather than direct aggression. Rumsfeld also noted that immediately after the 9/11 attacks Mubarak made the “unhelpful” comment that Egyptian cooperation in any U.S. campaign would depend on what proof the U.S. could provide about bin Laden’s involvement in the 9/11 attacks, though Mubarak did not reiterate the sentiment in his meeting with Rumsfeld.

umsfeld (left) and Uzbekistani President Islom Karimov speak to reporters in Tashkent, Uzbekistan.  Photo by Sgt. 1st Class Kathleen T. Rhem, USA.

umsfeld (left) and Uzbekistani President Islom Karimov speak to reporters in Tashkent, Uzbekistan. Photo by Sgt. 1st Class Kathleen T. Rhem, USA.

Days before his October 5 visit to Uzbekistan, Rumsfeld was quoted in an October 2, 2001, DOD press release saying Uzbekistan would be an ideal staging ground for “any anti-terrorist coalition military strikes.” On the day of the visit, however, Uzbekistan President Islam Karimov agreed to allow U.S. troops to use one of its air bases for humanitarian purposes, but not for air strikes, noting “In Afghanistan, only Afghans should fight.” Karimov also informed Rumsfeld that Russia was pressuring all Central Asian nations to work through Moscow in the hopes of obtaining U.S. concessions for Central Asia’s cooperation in the coalition.

Page 5 from Rumsfelds declassified Secret Memo.

Page 5 from Rumsfeld’s declassified Secret Memo.

Rumsfeld met with Turkish Prime Minister Bulent Ecevit, the Foreign and Defense Ministers and the Chief of the General Staff later on October 5 for his final round of Mideast talks. The Turks insisted that the Taliban were a menace to Islamic society, and that Turkey would cooperate with the U.S. to address the Taliban threat even after the disposal of Osama bin Laden. The Turks also addressed concerns about Russia’s role in the coalition against terror, namely that the Russians’ intent was to position Russian troops in an effort to isolate Turkey from the Central Asian states, to undo the Caspian Sea-Turkey oil pipeline, “to win a free hand in Chechnya and to launch military operations in Georgia.” Rumsfeld reminisced after their meeting that the Turks were “superb” allies, and “Would that all our NATO friends worked with us as Turkey does.”

While the short trip highlighted a host of logistical problems for air strikes against Afghanistan, the U.S. war with Afghanistan went ahead on October 7, two days after Rumsfeld’s return to Washington. The first strikes were launched from submarines based in the Arabian Sea, U.S. aircraft carriers USS Carl Vinson and USS Enterprise, and USAF bombers launched from Diego Garcia.

It remains to be seen what further insights can be gleaned from future declassifications of this memo, in particular what, if any, redacted portions concern arguments in favor of Iraqi connection to WMD and how they might have effected President Bush’s November 21, 2001, instruction that Rumsfeld confer with General Franks to determine how to “protect America” by removing Saddam Hussein from power, and, if possible, to do it in a way that wasn’t “noticeable.”5


1. [Rumsfeld, Donald, Known and Unknown: A Memoir, New York: Sentinel, 2011, p.379]

2. [The memo is one of the many posted on Rumsfeld’s website, www.rumsfeld.com, to supplement the publication of his memoir, Known and Unknown. Instead of using the FOIA to obtain these documents, Rumsfeld used a provision of the President’s Executive Order on Classification that allows presidential appointees to jump the line and request declassification of the documents they created during their tenure.]

3. [Woodward, Bob, Plan of Attack., New York: Simon & Schuster, 2004, p.25]

4. [Woodward, Bob, Plan of Attack, New York: Simon & Schuster, 2004, p.26]

5. [Woodward, Bob, Plan of Attack, New York: Simon & Schuster, 2004, p.2]

FreedomInfo: “FOIA Bill Post Mortem: Mysteries, Multiple Causes”

December 24, 2014

Ed. note: This article has been crossposted from FreedomInfo.org 

By Toby McIntosh

"My job tonight is to say thank you, and Merry Christmas.”... and kill the FOIA bill which has 410 House votes and Passed the Senate with Unanimous Consent.

“My job tonight is to say thank you, and Merry Christmas”… and kill the FOIA bill which has 410 House votes and Passed the Senate with Unanimous Consent.

The final days of modest legislation to reform the Freedom of Information Act were surprisingly dramatic.

Still lingering as a key mystery is why House Speaker John Boehner refused to bring the bill up, sealing its fate in 2014.

Passage was widely considered “a no brainer,” as one supporter put it. Unusual bipartisan support for FOIA reform gave supporters good reason to be optimistic.

Brought up late in the Senate session, however, the bill fell prey to numerous subterranean attacks. They came from within the government and outside it, perhaps fatally delaying passage.

The compromises made to ensure unanimous Senate passage may indicate the limits of achievable reform. The experience is sure to shape future FOIA reform efforts.

FreedomInfo.org sought to pull the puzzle pieces together by interviewing on a not-for-attribution basis more than a dozen people close to the story, including congressional aides and FOIA bill advocates.

Questions Remains 

Most of the close observers believe Boehner was influenced by banking industry lobbyists. Few accept the more mundane explanation that there just wasn’t enough time at the busy end the session.

All of those interviewed, however, including House and Senate Republican staffers, swore ignorance about why Boehner didn’t bring up the bill.

In retrospect, some wonder whether the bill’s leading sponsor, Sen. Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee, also should shoulder some of the blame for not getting the bill through.

After the House passed its bill in February, Leahy took several months to write his version, which was introduced in June but wasn’t passed by committee until Nov 20 and then by the Senate Dec. 8 as adjournment approached.

In final weeks, with time increasing their leverage, a handful of senators threatened to hold the bill up, causing Leahy to make compromises in a quest for unanimous backing.

Stealth Attacks

The Obama administration officially took no position on the bill, according a Justice Department spokesman, but unofficially DOJ and other agencies worked against the bill.

An early warning came in March when Cass Sunstein, the administration’s former regulatory czar now a professor, criticized the bill.

The Justice Department, with a leading role on FOIA policy, circulated its doubts orally to legislators, sources said. DOJ would not comment for this story.

The Federal Trade Commission also was working actively against on the bill, and also was unwilling to comment.

FreedomInfo.org has learned that White House Counsel W. Neil Eggleston called Leahy with concerns about the bill.

It was a “Whac-a-Mole” environment, said several persons closely involved in pushing the bill.

Optimism for Future

Boehner and other key legislators support passing FOIA reform early in the next Congress, making supporters optimistic.

The central feature of the both the House bill and the ultimate Senate bill is codification of the presumption that requests for documents will be granted absent “foreseeable harm.” The language in the two bills differed subtly.

One bright spot during the Senate bill’s consideration was willingness of the House bill’s bipartisan co-sponsors to accept the Senate bill, potentially smoothing the bill’s path to the president’s desk.

The bill contained a variety of other provisions. To fight FOIA delays, the bills would keep agencies from charging fees if they respond past the legal deadline. Also significant are provisions to strengthen the FOIA ombudsman and to create a council of FOIA officials. The bill would mandate creation of a unified FOIA request website.

The recent history of the bill, despite the lingering mysteries, provides some definite clues as to what the future bill will look like, and where future landmines are laid.

Early Compromises in Senate Committee

The December endgame in the Senate was fast and furious, but it had taken months to get there.

After the unusual 410-0 House approval of its bill (HR 1211) in February, Leahy wanted to produce his own similar, but better bill.

Leahy and a key Republican ally, John Cornyn (R-Texas), introduced their bill on June 24. (S 2520 as first introduced.) Their partnership was heralded as a good omen for their bill, which differed in one important way from the House bill.

The key addition in the Senate bill was a provision to tackle government “overuse” of the exemption 5, providing for protection of the deliberative process. FOIA activists documented an increase in its use and criticized its misuse, such as to protect an official history of the Bay of Pigs.

The coalition of 70 groups supported the bill, spearheaded by Open The Government, and including groups from the left and the right.

Drafting the bill took longer than expected for reasons possibly including personnel changes on Leahy’s staff. With goal of getting wide support, Senate staffers “consulted with a wide variety of people,” said one person who followed the process closely. “They really put a lot of blood sweat and tears into this.” But another person close to the process saw “dilly-dallying.”

Hopes for committee action before the summer break didn’t materialize. The bill was put on the Sept. 18 committee agenda but got delayed, as it did on Nov. 13. Unanimous committee action occurred Nov. 20. (See previous FreedomInfo.org report.)

Feinstein Pushes Out Balancing Test

In the pre-markup weeks, objection to the bill came from the staff of Sen. Diane Feinstein (D-Calif.), a challenge that the bill’s advocates played down in public although it involved a provision many considered the most ambitious in the bill.

Feinstein’s objections concerned the proposed “public interest balancing test” for exemption 5, the deliberative process exemption that also covers attorney-client privilege.

In the Leahy/Cornyn bill, denials regarding the deliberative process privilege or attorney work-product privilege would be permitted unless “outweighed by a pubic interest in disclosure.” A slightly stronger “compelling public interest” standard was set for “attorney–client privilege.”

Other Democratic senators also were in Feinstein’s camp: Sens. Charles Schumer (D-NY), Amy Klobuchar (D-Minn) and Richard Blumenthal (D-Conn.). Their concerns were being fueled by the Justice Department, sources said.

The critics said the bill would undercut protections for the attorney-client privilege, a point that seemed to resonate with attorneys on Senate staffs. “Even at a staff level there was a lot of unease about bringing the balance test to a member,” one person said.

After attempts at rewriting it, the provision was dropped. For some of the bill’s supporters, the best part of the Senate bill was gone, but they argued that the foreseeable harm test would help limit abuse of exemption 5.

Plus, another welcomed provision would make the deliberative process exemption inapplicable to records older that 25 years. In addition, a study on the use of the deliberative process exemption would be commissioner by the Government Accountability Office (GAO).

Several other changes were made to the original bill in preparation for committee markup.

A prohibition on charging fees when an agency delays the handling of a request got amended slightly so as not to apply to very large requests, more than 50,000 responsive records.

In addition, the GAO would be required to conduct audits of the FOIA activities of three or more agencies every two years. Another GAO report was ordered, on backlog reduction methods.

The manager’s amendment containing the changes was approved without dissent by the committee on Nov. 20.

Rockefeller Challenges

After the meeting, an FTC staff member approached a Leahy staffer. The agency had concerns about the bill, she said, and would be taking them to the Commerce Committee.

It was an early warning about an objection that Commerce Chairman Jay Rockefeller (D-W. Va.) would lodge, but not until the last minute, several weeks later.

He and a few other senators indicated their concerns when the S 2520 was going through the “hotline” procedure, used right before a bill is brought up on the floor to learn about impending opposition.

The “hold” placed on the bill by Rockefeller concerned the central provision in the bill, which would require agencies to release information unless “foreseeable harm” would result. The provision was drawn from DOJ guidance that was supposed to be applied, but many argued was not being followed.

When news of Rockefeller’s objection hit Dec. 4, supporters of the bill launched a Twitter campaign while negotiations got under way.

As the outcry grew, Rockefeller explained his thinking, in statement, predicting that the foreseeable harm standard would create an “unintended consequence” of impairing enforcement of federal laws protecting consumers.

His position was that corporate defendants “could inundate” agencies with requests and would generate “needless litigation” that would drain agency resources and chill internal agency deliberations.

With time running out on the session, Rockefeller’s staff took more than a day to engage with the bill’s supporters in negotiations. Involved in the talks was a staff person from the FTC, on temporary assignment with the committee.

The commission did not take an official position by vote on the bill, but its congressional affairs staff worked on the issue. The FTC declined to comment or to grant interviews.

“Agencies don’t like changes to FOIA, they are concerned about the administrative burden,” one bill supporter observed, “It was not unusual that they would be raising concerns.”

Rockefeller’s concerns were overstated, the bill’s supporters contended. In the real world, they said, the subjects of enforcement actions prefer not to file FOIA action that will annoy the enforcers. Besides, FOIA requests can take years, especially with an unsympathetic agency, so any information will come out too late for litigation. Furthermore, the discovery process is a more powerful tool for defendants than FOIA.

Negotiations with Rockefeller’s staff resulted in committee “report language” – a non-binding description of Congress’s intent – that was a fig leaf. It applying a higher standard for judicial review but only to “current law enforcement actions.”

The compromise language in the committee report says:

It is the intent of Congress that agency decisions to withhold information relating to current law enforcement actions under the foreseeable harm standard be subject to judicial review for abuse of discretion.

Asked about what happened, Rockefeller said, “It’s sort of the internal workings of the Senate,” according to a Politico report.

One last-minute crisis had been averted, but others were under way. A couple were easily resolved.

Sen. Bob Corker (R-Tenn.) wanted time to look at the modifications made in the Senate Judiciary Committee, which approved the bill unanimously Nov. 20, but gave his approval.

Sen. Tom Coburn (R-Okla.) C was placing holds on many bills he felt were not paid for, but the House FOIA bill was estimated to cost only $5 million annually, and the Senate bill likely less.

Coburn “placed an informational hold on the bill because it had not been analyzed by the Congressional Budget Office,” a spokesperson said. “However, his concerns regarding the costs were addressed and he does not object to its passage.”

Phantom Business Attacks

More troublesome were objections from Senate Banking Committee Chairman Tim Johnson (D-SD), who eventually obtained reassurances from Leahy.

Johnson’s concerns appeared to stem from lobbying by unnamed banking interests worried that the bill could undercut the statutory exemptions protecting government information about them(See FreedomInfo.org article.) Even weeks later, none of those interviewed, staffers and outside groups, could identify the banking groups involved. No banking groups contacted indicated involvement.

The bill supporters and other FOIA experts considered the banking industry fears to be much exaggerated. Not only are they amply protected in the law already, but also courts are very deferential in this area, they said. A recent favorable ruling in this area example involved the Securities and Commission (Public Investors Arbitration Bar Association v. Securities and Exchange Commission, No. 13-5137, U.S. Court of Appeals for the District of Columbia Circuit, Nov. 14).

On top of that, the Dodd-Frank law imposes additional protections against harmful disclosures. Overall, as one expert put it, “The bank regulatory agencies have always gotten a free ride under FOIA.”

Johnson joined the rest of his Senate colleagues in voting for the bill after being given assurances.

A section was inserted into the committee report on the bill and a scripted dialogue on the floor was held between Leahy to provide promises that the bill’s reforms would not alter the primary exemption protecting government records about financial institutions. (See FreedomInfo.org article.) Leahy said the amendments “are not intended to undermine the broad protection in Exemption 8 or to undermine the integrity of the supervisory examination process.”

The Senate bill passed unanimously Dec. 8 on a (See FreedomInfo.org report.)

Tight Time Frame

The Senate bill was sent to the House, where the House bill’s sponsors, Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) and ranking member Elijah E. Cummings (D-Md.) issued a joint statement urging a vote. Issa “made calls” to encourage House action, sources said, but not much information was available about whom he called. Nor would and Issa staffer say if he spoke with Boehner.

Some skeptics wonder if Issa was distracted. I don’t know that he weighed in early enough with the right people,” commented one person.

Minority Leader Nancy Pelosi (D-Calif.) indicated to Boehner’s office that the Democratic side had cleared the bill, sources said. It’s unknown whether Leahy called Boehner.

If specific concerns came from the banking industry, they were not conveyed to staffers working on the bill. Several sources said that House Financial Services Committee staffers were unaware of any industry objections.

Justice Department Accused

The Justice Department was fingered as the culprit by Josh Hicks, in a Washington Post blog post.According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “forseeable harm” requirement as the basis for frequent lawsuits.”

DOJ, according to some congressional staffers, favored the House version of the presumption of openness standard, if any, but it’s unclear if this was raised with House leaders.

Both versions were based on President Obama’s 2009 memo as defined by Attorney General Eric Holder in a March 19, 2009, memo saying “… the Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”

The House bill (HR 1211) adjusted the language slightly, to read:

An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.

The Senate bill tracked the Holder memo, but also contains a bit more, making it “more robust” in the words of one supporter. The added provision says officials “may not withhold information requested under this section merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption described in subsection or withhold information requested under this section merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.”

Unrelated to this, Justice also objected to the bill on constitutional grounds, staffers said, to a provision that would have allowed the ombudsman to send recommendations directly to Congress, instead of routing them for approval through the Office of Management and Budget, like other agencies. This contention didn’t impress Hill staffers.

Repeated FreedomInfo.org requests for interview with Melanie Ann Pustay, the Director of the DOJ Office of Information Policy, were denied.

Boehner “No Knowledge”

Boehner on Dec. 11 gave no encouragement to FOIA reform supporters.

“I have no knowledge of what the plan is for that bill,” Boehner said when asked about it at a late-morning news conference.

The Speaker was focused on the creation of the spending package for the government, whose fate was uncertain when he spoke. (See FreedomInfo.org report.) A spending bill managed to pass later that day. A few bills naming post offices also were passed, but not much else and the House adjourned at 9:40 p.m. Dec. 11.

Whether Obama administration opposition would sway Boehner is open to doubt, those interviewed agreed.

Throughout the process, advocates for the bill deliberately avoided drawing attention to DOJ’s position, fearing that doing so would make the bill partisan; even turning it into an anti-Obama bill that the president would have to sign.

“I do not think DOJ’s opposition hurt us one bit when it came to the House,” one supporter of the bill said.

More likely, many believe, is that banking industry concerns were in play. “Everybody assumed that problem had been solved,” one observer said, referring to the handling on Johnson’s concerns. But possibly not.

The sympathetic view to Boehner is that any tinge of controversy. One aide suggested the Speaker didn’t want to do anything to jeopardize the difficult vote-gathering for the troubled spending bill. Another called Boehner’s move “standard operating procedure” in the face of rumblings of controversy.

Leahy blamed the House speaker, tweeting, “And Boehner kills #FOIA improvements.”

Last Gasp

A final maneuver was still possible, passage of the House bill by the Senate, but this never happened.

Issa publicly suggested this course, annoying the bill’s supporters who saw it as partisan face-saving. Also most supporters much preferred the Senate bill.

Any senator could have blocked this gambit, and apparently such opposition existed. Democrats hint that a Republican would have objected. Republicans suggest a Democrat might have done so. Possibly Rockefeller and Johnson might have felt that the House bill, while largely similar to the Senate bill, did not come with the assurances they had won on the Senate side.

Looking Ahead

FOIA reform supporters said they have high hopes for passage of a bill in 2015.

The loss of the public interest balancing test provision grates on some, but many supporters see the remaining provisions as valuable.

The terms of a potentially passable bill may have been honed through the process. There still seems to be broad support in Congress for such FOIA reform.

The episode was a reminder to some that politicians support transparency in public while undercutting it in private.

“Many people –in Congress, in the agencies, in the White House, in the media– proclaim they believe in open government, but don’t really,” wrote Nate Jones in Unredacted, a blog at the National Security Archive (which also publishes FreedomInfo.org.)

Supporters also said it was time to reconsider their tactics. “There will be a lot of soul searching,” said one advocate.

On Capitol Hill, here will be congressional personnel shifts of importance, but support for FOIA reform may remain intact among the new committee leaders.

Sen. Grassley (R-Iowa), a bill co-sponsor, will be the new chairman of the Judiciary Committee in a Republican Senate. In the House, Rep. Jason Chaffetz (R-Utah) will replace Issa as chairman of the Oversight Committee and has already named FOIA as a topic he’d like to address.

One hopeful supporter said, “This can be passed and president Obama can have a wonderful signing ceremony during sunshine week [in March].”

 

Unearthing the Truth: Declassified Files on Mexican State Violence Beyond Ayotzinapa

December 23, 2014

This article was originally posted on the North American Congress on Latin America (NACLA).

Declassified files on migrant massacres reveal impunity and Mexican state complicity in human rights atrocities that predate the recent Ayotzinapa disappearances.

A woman from the Caravan of Mothers, in search of her children along train tracks (Lucia Vergara)

“I feel desperate looking for my daughter because I don’t have any proof, I have questions about everything that they’ve done but they never looked for me; they never handed over evidence,” Mirna del Carmen Solórzano told Mexican news outlet Sin Embargo on March 20, 2014. Similar sentiments have been expressed by family members of the 43 Ayotzinapa rural teachers college students who were disappeared on September 26 at the hands oflocal and federal police reportedly working in coordination with the drug cartel Guerreros Unidos. But in this case, Mirna’s daughter was found dead over four years prior, in a massacre of Central American migrants that foreshadowed what became deafeningly clear in September: that the Mexican state is frequently complicit in the country’s greatest human rights atrocities.

In what is now called the San Fernando Massacre, Mirna’s daughter and 71 other migrants—many en route from Central America to the United States—were captured and murdered in late August 2010. All public accounts indicate they died at the hands of the criminal organization Los Zetas. While the August 2010 San Fernando Massacre was the most well-reported case of migrant abuse in Mexico at the time, known for its scale and level of atrocity, it was only part of a larger pattern of violence targeting migrants, mostly from Central America, traveling north towards the U.S.-Mexico border. While this case may be seemingly unrelated to the abduction of the 43 Ayotzinapa students, developments in accessing information on the former may have implications on efforts to uncover truth and push for accountability for the later.

Slowly, information on the San Fernando massacre and related violence against migrants is surfacing from behind closed government doors. The dramatic increase in U.S. security assistance programs in Mexico—ushered in through the Mérida Initiative inaugurated in 2008—paralleled a surge in internal government reporting produced by U.S. officials. Open-government proponents have used the U.S. Freedom of Information Act (FOIA) to gain access to these internal files, which illuminate the links between U.S.-funded counter-drug initiatives and human rights abuses. This article cites a collection of formerly secret declassified files, many of which have been published by the U.S.-National Security Archive(NSA), disseminated by investigative journalists from news outlets such as Proceso andAristegui Noticias in Mexico, cited as evidence in ongoing legal cases, and used for clarification purposes by a network of activists working to defend migrant rights and increase transparency and accountability for migrant abuses. The slow trickle of such files from the U.S. state archives entails essential clues to understanding the migrant massacres, and is informing the civil society response to the Ayotzinapa disappearances today.

 ***

U.S. and Mexican documents from 2011 provide details of the role of government officials in violations targeting migrants in Tamaulipas, where the San Fernando Massacre occured, and other regions of Mexico. In January 2011, U.S. Embassy officials reported internally on receiving “anecdotal evidence” that migrant authorities and local police were turning a blind eye or colluding in routine forms of extortion, kidnapping, and trafficking of migrants, emphasizing the role of the state in the violence.

In April and June of 2011, hundreds of more bodies were discovered in mass graves in the same region. During that time, the Mexican government took action to downplay the severity of the violence, particularly leading up to Easter Week (also known as Semana Santa, or Holy Week), so as to not deter tourism in the area. Mexican officials told U.S. Consulate officers in secret that “the bodies are being split up to make the total number less obvious and thus less alarming.” Consulate officers are documented as having acknowledged that “Tamaulipas officials appear to be trying to downplay both the San Fernando discoveries and the state’s responsibility” for the massacres in the region. Such candid observations were shared internally between U.S. officials, but shielded from public scrutiny just as the United States was ratcheting up Mérida Initiative security assistance to Mexico and the region.

In April, U.S. consulate officials also noted that 17 San Fernando municipal police officers were arrested in connection with the aforementioned April 2011 discovery of 196 bodies in the mass graves, and seven officers were arrested in Reynosa connected to a separate kidnapping of 171 migrants. The following month, the U.S. Embassy reported on the firing of seven top officials from the National Migration Institute (INM) amid allegations of involvement in the kidnapping of migrants. INM released its own records on this case in response to information requests and a resolution issued by Mexico’s Federal Institute for Access to Information (IFAI), but kept secret the names of the officials implicated in the kidnappings. In November 2011, the U.S. Defense Intelligence Agency (the Pentagon’s intelligence wing) reported on information it received of police officer involvement with drug trafficking and undocumented migrant smuggling organizations.

Similar to the case of Ayotzinapa, where federal authorities have stated that the Mayor of Iguala and his wife had been operating in collusion with corrupt police and local drug gangs, officials in Tamaulipas have been linked to organized criminal networks. In a cable from February 2012, the U.S. Embassy sent information back to Washington on investigationsunderway of three successive governors of Tamaulipas for suspected links to organized crime. In 2014, the U.S. Drug Enforcement Agency (DEA) identified the governor at the time of the 2010 massacre, Eugenio Hernández Flores, as having received bribes from the Zetasso the cartel could operate freely in Tamaulipas. The governor proceeding Hernández, Tomás Yarrington, is now wanted for extradition to the United States on charges of money laundering and taking bribes from the Gulf and Zetas cartels. Internal investigative files released by Mexico’s own federal prosecutors have revealed that local police were allegedly paid by the Zetas to act as vigilantes (labores de halcones), intercept people, turn them over to the cartel, and provide cover for their members. As today’s Proceso investigation reveals, a newly disclosed document released to the National Security Archive’s Migration Declassified project lays bare the depths of these connections between the police and Zetas at the time of the San Fernando massacres.

Click here to read the rest of the article at the North American Congress on Latin America.

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