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State’s FOIA Shop Faces Uncertain Future: FRINFORMSUM 6/22/2017

June 22, 2017

Drastic Cuts Coming to State’s FOIA Shop

The State Department’s FOIA shop, which is heavily reliant on Limited Non-Career Appointment (LNA) Foreign Service Officers with decades of experience in foreign policy, is poised to undergo a radical – and disruptive – shift. The National Security Archive has been contacted by sources within the department warning of draconian cuts to the FOIA office – in the form of the forced retirement of 150 of the FOIA office’s most senior and experienced LNA reviewers. The plan to replace them is unclear, but may result in the State Department contracting out much of its FOIA processing.

State’s FOIA shop is unique in that retired, part-time Foreign Service Officers do much of the heavy lifting – the benefit for FOIA requesters being that deeply knowledgeable officers are making declassification decisions in an arena that is not black and white. Contracting this out, in addition to possibly being more expensive, could result in less knowledgeable FOIA processors making these decisions, and is not guaranteed to expedite processing.

It is also another potential example in a disturbing trend of FOIA offices contracting out their FOIA processing. CACI is currently hiring a FOIA Specialist for duties that include processing, and Deloitte has a FOIA team that provides assistance with “FOIA solutions,” including FOIA responses and “process innovation.”

A key point to remember here is that contractors are prohibited from performing “inherently governmental functions.” Previously, agencies have justified to the Archive their use of contractors in FOIA shops by saying that they are meeting this requirement by not allowing contractors to make final determinations when processing FOIA requests. It’s hard to imagine, however, that if State contracts out a large portion of its FOIA shop, that it can ensure that this is not happening, or that quality control problems will not result.

Suing Trump Administration to Preserve Presidential Records  

The National Security Archive joins Citizens for Responsibility and Ethics in Washington (CREW) in a lawsuit to ensure that the Trump administration preserves its presidential records – as required by law.

“Thanks to Congress, since 2014, government employees have been required to copy any private server e-mail messages about government business to official systems within 20 days,” said National Security Archive director Tom Blanton. “Reports that Trump administration officials are disregarding this requirement – either by not following private e-mail protocol or by using encrypted messaging apps that prevent any kind of preservation – raise serious concerns that presidential records are at risk.”

Get the whole story and read the complaint here.

No Real Harm from Manning Leaks, Says Redacted DOD Report

A heavily redacted final report from the Defense Department’s Information Review Task Force contradicts prosecutor’s arguments that Chelsea Manning’s leaks endangered US national security. The report, obtained by BuzzFeed’s Jason Leopold in response to a 2015 FOIA lawsuit, finds “with high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.” Leopold says, “To prepare it, more than 20 federal government agencies, including the FBI, NSA, CIA, the Department of State, and the Department of Homeland Security, conducted a line-by-line review of more than 740,000 pages of classified documents ‘known or believed compromised’ by WikiLeaks to assess the damage.”

Not So Secure Post-Snowden

A declassified August 2016 Defense Department Inspector General report, released in response to a FOIA request from The New York Times’ Charlie Savage, found “The government’s efforts to tighten access to its most sensitive surveillance and hacking data after the leaks of National Security Agency files by Edward J. Snowden fell short.” Specifically, the report found that the agency:

  • “failed to consistently lock racks of servers storing highly classified data and to secure data center machine rooms,”
  • “failed to meaningfully reduce the number of officials and contractors who were empowered to download and transfer data classified as top secret,” and
  • “did not fully implement software to monitor what those users were doing.”

If You Can Google It, Agencies Shouldn’t Glomar It

Ryan Shapiro and Jason Leopold are suing the FBI for issuing a Glomar denial (refusing to either confirm or deny the existence of records, and, by extension, refusing to search for them in the first place) in response to a FOIA request for pre-election records on President Trump. The FBI issuing a Glomar in such an instance is absurd considering, as stated in the complaint, “Mr. Trump has further diminished his privacy interest by speaking publicly about contacts he has had with the FBI. For example, in an article describing his connections with organized crime, Mr. Trump told The Washington Post that he met with FBI agents in April 1981.” The FBI has also released records in response to previous requests, some of which refer to Trump. A Google search will also reward you with a 1981 FBI memo about Trump.

Private Prisons FOIA Suit

Campaign Legal Center recently filed a FOIA lawsuit against the Justice Department for information on the agency’s decision to reverse the Obama administration plan to phase-out federal use of private prisons. The Center’s FOIA sought DOJ communications with the pro-Trump SuperPac, Rebuilding America Now; GEO Corrections Holdings Inc., which “specializes in corrections,” is a contributor to the Pac.  GEO Holdings contributed nearly a quarter of a million dollars to the Pac, with $100,000 coming the day after the Obama administration announced it would end the use of private prisons for federal inmates.

Modern War Historians Face Hurdles in Iraq, Afghanistan

The difficulties faced by the Army’s historical field staff in Iraq and Afghanistan were recently highlighted in an excellent article in The Atlantic. When computers became prevalent, the Army broadened records management responsibilities to average soldiers – failing to take into account, according to the Center for Military History’s Jerry Brooks, “that people are lazy.” In an ideal world, soldiers save documents and hand them off, along with other sources of information, “to field historians when requested. However, in addition to the two years after Spencer Williams and his team left Afghanistan a decade ago, the country hasn’t had a field historian from the Army since 2014. Historians dealing with Iraq have avoided these same gaps, but still suffer from fewer personnel in the field than in past wars. Brooks cites Vietnam, where U.S. headquarters in Saigon alone maintained a staff of more than 20 historians. Nowadays, as a result of caps on the number of troops deployed, historians oftentimes find themselves on the first flights back home.”

New Digital National Security Archive Set Publishes Thousands of Declassified Iraq War Docs

A new Digital National Security Archive collection from our Iraq project is now available through ProQuest.

The National Security Archive, working with our partners at ProQuest, is publishing a new compilation of documents on the Iraq war, one of the most consequential events in recent history—for the United States, Iraq, the Middle East, and the international community.

The 2,141-document collection of primary source documents, Targeting Iraq, Part I: Planning, Invasion, and Occupation, 1997-2004, will illuminate the path to war and its many unanticipated consequences. Information in the collection will also be useful in examining an issue of continuing concern: the politicization of intelligence to serve political ends.

Learn more about the collection here.

Iran FRUS Released after “Mind-Boggling” Delay

The State Department recently released its long-awaited “retrospective” volume of declassified U.S. government documents on the 1953 coup in Iran, including records describing planning and implementation of the covert operation.

The publication is the culmination of decades of internal debates and public controversy after a previous official collection omitted all references to the role of American and British intelligence in the ouster of Iran’s then-prime minister, Mohammad Mosaddeq. The volume is part of the Department’s venerable Foreign Relations of the United States (FRUS) series.

The National Security Archive applauded the publication but the Archive’s Iran-U.S. Relations Project director termed the decades of delay in releasing the documents “mind-boggling.”

Nixon’s Nuclear Specter Receives Award from the U.S. Military History Group

The U.S. Military History Group awarded Nixon’s Nuclear Specter: The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War, with an Honorable Mention for the 2016 Captain Richard Lukaszewick Memorial Book Award. The award recognizes “outstanding” books on US military history from 1945 through 2001. Congrats to the National Security Archive’s Dr. William Burr, who co-authored the book with Miami University professor emeritus Jeffrey Kimball!

Journalists Being Killed in Mexico

Mexican columnist, investigative reporter, and author Javier Valdez Cárdenas is the sixth member of the press to be assassinated in Mexico in less than three months, and joins the black list of the estimated 125 journalists killed and 20 disappeared in Mexico since 2000. According to the press freedom organization Reporters Without Borders, Mexico is the third most dangerous country for journalists in the world, after Afghanistan and Syria. Yet Mexico’s government has done little to nothing to stop the violence targeting the media.

The National Security Archive’s Mexico Impunity Project joins with our colleagues in the press and civil society in support of the right to information and free expression, and the right of journalists to write, publish, and live without fear of violent repercussion.

Read some of Valdez’s work, written two months before his death, here.

TBT Pick – Before Democracy

Today’s #TBT pick is chosen with the disturbing assault on members of the Mexican press in mind, and is a 2003 posting by the Archive’s Kate Doyle on memories of Mexican elections from 1967 through 1970. The posting includes a secret 1967 CIA intelligence report on “Mexico: The Problems of Progress.”

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New Digital National Security Archive Set Publishes Thousands of Declassified Iraq War Docs

June 21, 2017

A new Digital National Security Archive collection from our Iraq project is now available through ProQuest.

The National Security Archive, working with our partners at ProQuest, is publishing a new compilation of documents on the Iraq war, one of the most consequential events in recent history—for the United States, Iraq, the Middle East, and the international community. The 2,141-document collection of primary source documents, Targeting Iraq, Part I: Planning, Invasion, and Occupation, 1997-2004, will illuminate the path to war and its many unanticipated consequences. Information in the collection will also be useful in examining an issue of continuing concern: the politicization of intelligence to serve political ends.

The majority of the documents published in the new publication were obtained from FOIA requests filed by the National Security Archive’s Iraq project and its director, Joyce Battle, with the State Department, the Defense Department, the Defense Intelligence Agency, CENTCOM, the Central Intelligence Agency, and other agencies that participated in making policy toward Iraq. The records provide historical background on U.S. policy debates over Iraq dating to the Clinton administration; internal records that detail the Bush administration’s decision-making leading to Operation Iraqi Freedom, including the controversial use of false intelligence to justify military action; materials that flesh out the campaign to build domestic and international support for the operation; and documentation covering the first 18 months of U.S.-led occupation.

Slides and other briefing materials charting the Defense Department’s months-long development of a war plan for Iraq, ordered by President George W. Bush in late 2001, are included in the collection. Memos and background papers discuss strategies for achieving American goals. Documents dating from March 2003 onward reflect frequently changing strategies to respond to the many reversals and setbacks encountered after the invasion that the United States had not anticipated. These included rising, increasingly violent opposition to the continuing presence of American troops, sectarian conflict, rampant looting, the collapse of Iraq’s physical infrastructure and civil society, and massive displacement of the civilian population.

Also included are reports of human rights abuses committed by American forces, culminating in exposure of the systematic torture of detainees at the Abu Ghraib prison. Other documents discuss attacks on Iraq’s museums and libraries and the sustained destruction of its antiquities and archaeological heritage, attributable in considerable part to the actions or the inaction of occupying coalition forces.

Documents dating from mid-2003 through mid-2004 provide background on attempts to ensure consolidation of long-term objectives in Iraq by a United States under pressure from Iraqis and from the United Nations to end the occupation and restore Iraq’s sovereignty. Background information is included on American decisions to dissolve Iraq’s military and security forces; to dismantle most of its civil service (through enactment of a de-Baathification policy that was intended to bar from positions of authority anyone connected to the former government); to draft a new Iraqi constitution; to implement a new oil law opening Iraq to global markets; and to negotiate Status of Forces and Strategic Framework agreements institutionalizing long-term U.S.-Iraq military cooperation.

Documents discussing American measures to privatize Iraq’s economy, eliminate state-owned enterprises, and facilitate contracts for international corporations to invest in Iraq’s reconstruction are also part of the collection.

U.S. Secretary of State Colin Powell holds up a model vial of anthrax during his historic presentation before the United Nations Security Council, February 5, 2003.

The documents also demonstrate the symbiotic relationship between policy and promotion that dominates our perception of world affairs. The United States presented its case for war in the most persuasive light possible and successfully orchestrated a campaign to market the invasion of Iraq. The public, press, congressional, and, to an extent, opposition party skepticism required for an effectively functioning democracy was lacking during the lead-up to the Iraq war – despite a vibrant global antiwar movement. The result was a conflict that turned out to be nothing like what had been advertised, resulting in death and injury on a grand scale, trillions in costs, and the subsequent instability and rise in extremism predicted by war opponents. As of this writing, 14 years after the United States invaded Iraq, the conflict continues.

The documents in this collection have relevance for a range of issues, including:

  • United States policy toward Iraq
  • United States policy toward the Middle East
  • United States-Arab relations
  • United States-Muslim relations
  • United States relations with the United Kingdom
  • United States relations with Europe
  • United States policy toward the United Nations
  • United States counterterrorism policy
  • Presidential decision-making
  • Intelligence and national security policy-making
  • Government-news media relations
  • United States information policy
  • The Bill Clinton and George W. Bush presidencies
  • Security studies
  • International relations

Other Iraq resources from the National Security Archive include the DNSA collection, “Iraqgate: Saddam Hussein, U.S. Policy and the Prelude to the Persian Gulf War, 1980–1994,” and the web postings, such as “The Iraq War Ten Years After: Declassified Documents Show Failed Intelligence, Policy Ad Hockery, Propaganda-Driven Decision-Making,” and “The Record on Curveball,” among many others.

If you don’t already have DNSA, sign up for a free trial today.

Nixon’s Nuclear Specter Receives Award from the U.S. Military History Group

June 21, 2017

Nixon’s Nuclear Specter – The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War.

The U.S. Military History Group awarded Nixon’s Nuclear Specter: The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War, with an Honorable Mention for the 2016 Captain Richard Lukaszewick Memorial Book Award. The award recognizes “outstanding” books on US military history from 1945 through 2001.

The members of the award selection committee agreed that Nixon’s Nuclear Specter, co-authored by the National Security Archive’s Dr. William Burr and Miami University professor emeritus Jeffrey Kimball, stood out from the submissions, and praise for the book from the selection committee members includes:

“Security analyst William Burr and historian Jeffery P. Kimball examine the use of military force and coercive diplomacy by President Richard Nixon and his Secretary of State Henry Kissinger during 1969 in an effort to reach a negotiated peace ‘with honor’ to end the Vietnam War. This goal became a near obsession, with virtually every action taken by Nixon weighed against its potential impact on China, the Soviet Union, and North Vietnam, going so far as initiating a global nuclear alert intended to coerce the Soviets into pressuring Hanoi to come to terms. Extensively researched and making use of newly declassified material, Nixon’s Nuclear Specter sheds new light on the Nixon administration and its efforts to extract the United States from its Vietnam quagmire.” – Peter Kindsvatter

“Though Vietnam War historians are generally familiar with the broad sketches of Nixon’s ‘Madman Diplomacy’ in Vietnam, this book sheds new light on the president’s specific plans, up to and including the threat of nuclear escalation. Burr and Kimball have an exceptional feel for Nixon’s decision-making tendencies and the president’s interplay with Henry Kissinger, an alter ego of sorts. This volume is essential reading for anyone who hopes to understand American military and diplomatic policy during the second half of the Vietnam War.” – John C. McManus

The authors filed exhaustive mandatory declassification review and FOIA requests with the Defense Department and other government agencies, conducted research at presidential libraries, and examined documents in diverse U.S. government archives as well as international sources in researching the book.

The cover page to the Navy’s Duck Hook plan for mining Haiphong Harbor, developed in July 1969 at the request of President Nixon and national security adviser Kissinger.

Highlights from the declassified documents include:

  • The Navy’s plan for mining Haiphong Harbor, code-named DUCK HOOK, prepared secretly for Nixon and Kissinger in July 1969.
  • A March 1969 memorandum from Nixon to Kissinger about the need to make the Soviets see risks in not helping Washington in the Vietnam negotiations: “we must worry the Soviets about the possibility that we are losing our patience and may get out of control.”
  • The Navy’s plan in April 1969 for a mine readiness test designed to create a “state of indecision” among the North Vietnam leadership whether Washington intended to launch mining operations.
  • Kissinger’s statement to Soviet Ambassador Dobrynin in May 1969 that Nixon was so flexible about the Vietnam War outcome that he was “was prepared to accept any political system in South Vietnam, provided there is a fairly reasonable interval between conclusion of an agreement and [the establishment of] such a system.”

Nixon’s Nuclear Specter is available here.

Journalists Are Dying in Mexico

June 15, 2017

Reporter and author Javier Valdez Cárdenas was shot and killed in Culiacán, Sinaloa on May 15.

When gunmen shot and killed Mexican columnist, investigative reporter, and author Javier Valdez Cárdenas in Culiacán, Sinaloa on May 15, a chill went through newsrooms everywhere. Not only was he the sixth member of the press in Mexico to be assassinated in less than three months, some reporters had just assumed that someone of Valdez’s international fame and stature would be protected. After all, Valdez was renowned for his weekly columns in the regional outlet he co-founded, RíoDoce. He was a correspondent for the newspaper La Jornada. He was the author of nine books – including one translated into English, The Taken: True Stories of the Sinaloa Drug War – the most recent, Narcoperiodismo, in 2016. He was the recipient of some the world’s most prestigious international journalism prizes, including the Maria Moors Cabot Prize from the Columbia Journalism School and the International Press Freedom Award from the Committee to Protect Journalists.

But Javier Valdez’s reporting and writing routinely addressed the most dangerous of subjects: organized crime, narco-trafficking, and the corruption of Mexican government officials. And someone took notice. At around noon on a sunny Monday, Valdez left his office with his customary and only slightly ironic farewell, “May God bestow his blessing on me,” and headed to his car. He had driven just a few blocks when two men, according to witnesses, stopped him and pulled him from his car, executing him with twelve bullets. They left his body sprawled on the street.

Javier Valdez now joins the black list of the estimated 125 journalists killed and 20 disappeared in Mexico since 2000. According to the press freedom organization Reporters Without Borders, Mexico is the third most dangerous country for journalists in the world, after Afghanistan and Syria. Yet Mexico’s government has done little to nothing to stop the violence targeting the media. Although President Enrique Peña Nieto’s administration supports a “Federal Protection Mechanism of Human Rights Defenders and Journalists,” created in 2012 to offer special protection to journalists under threat, reporters have complained that it is underfunded, understaffed and does little to stop the violence. And according to a recent report by the Washington Office on Latin America and Peace Brigades International, in those cases the Mechanism did take on, some 38 percent of aggressors against the press were found to be government authorities, making it difficult for some journalists to trust government support of any kind.

In response to the crisis of violence against journalists, press organizations around the world are publishing, airing and broadcasting pieces today to mark the one month anniversary of Javier Valdez’s assassination. The campaign is intended to express support and solidarity with Mexico’s journalists under siege, as well as draw international attention to their vulnerability and failure of the Mexico government to protect them. The National Security Archive’s Mexico Impunity Project joins with our colleagues in the press and civil society in support of the right to information and free expression, and the right of journalists to write, publish, and live without fear of violent repercussion.

#ourvoiceisourstrength #nuestravozesnuestrafuerza

Below is one example of the fierce, resonant reporting and writing of Javier Valdez, written two months before his death. It is a story about another journalist, who is unnamed, but who now bears an tragic resemblance to Valdez himself.

Published by the Mexican Journalism Translation Project on May 16, 2017

THEY ARE GOING TO KILL YOU, BY JAVIER VALDEZ CÁRDENAS

Friends, family, and colleagues warned him: Take care, man. Those guys have no limits. They are bastards. But in his column in one of the local papers he kept criticizing and complaining, using his keyboard, his words, to pelt corrupt politicians for conspiring with criminals, police at the mafia’s command.

He’d been a reporter for some time, experienced in investigative work. There was never a shortage of subjects to cover, but those paths, hidden by thorny plants, led to gunpowder or a waiting trigger, to the bosses’ glassy stares, to escape routes without exits, to streets that only led to hot smoke, wisps dancing in the wind after the gun shots.

But he wore a bulletproof vest across his chest. To him the moon looked like a lantern that could even light up the day. Pen and notebook were his escape, therapy, crucifixion, and exorcism. He wrote and wrote onto a blank page and spat it out onto the screen with his fingers, from his mouth, splattering everything. He bawled into his columns with anger and pain and sadness and wrath and consternation and fury, talking about the shit-covered governor, the mayor flush with funds, the smiling lawmaker who looked like a cash register receiving and receiving wads of cash and pinging when taking in another million.

The business dealings of the powerful were his subject. How they took advantage of everything and fucked over the common people. Destitution, like garbage, grew and spilled over sidewalks and street corners. Brothels overflowed. Hospitals never lacked sick people but neither were there beds nor doctors. That’s right, the prisons overflowed and an empire of smoke covered everything. Black clouds covered the starry skies, filling the heads of the region’s residents, making them sick yet not indignant. But he wasn’t going to give in. No way, he repeated to himself. He started to write.

A report put a lawmaker at the center of a hurricane. He joined those criticizing the lawmaker’s might and his ties to those at the top of political, economic and criminal power. Few were the legislators’ detractors and almost nobody wrote about it, but he would not shut up. On FaceBook he posted ferocious, brave words. They told him: Hey man, tone it down. Those bastards are out to get you. They will kill you. He shrugged it off with a harrumph. They won’t do anything to me. They can go fuck themselves.

Three hours after that post on social media they caught up with him and shot him point blank so as not to miss.

Award winning Mexican journalist Javier Valdez Cárdenas was murdered on 15 May 2017 just after leaving Ríodocea newspaper he helped establish in Culiacán, Sinaloa. He was 50 years old. He published this Malayerba column on 27 March 2017. His most recent book (previously published in Spanish as Levantones), appears in English translation and with an introduction by Everard Meade as The Taken: True Stories of the Sinaloa Drug War,  published earlier this year by University of Oklahoma Press.

Translator Patrick Timmons is a human rights investigator in the Americas, an investigative journalist, and historian. NACLA, the CPJ BlogThe Texas Observer, and CounterPunch have published his writing.

 

 

DOD Tries to Revive Bad FOIA Exemption: FRINFORMSUM 6/15/2017

June 15, 2017

DOD Trying to Expand FOIA Exemptions for Third Year in a Row

The Defense Department is seeking – for the third time in three years – a new FOIA exemption that, if approved, would allow the agency to expand the FOIA’s (b)(3) exemption to withhold “military tactics, techniques and procedures (TTP), as well as rules of engagement, that are sensitive but unclassified.”  The exemption is proposed in the National Defense Authorization Act of 2018, section 1003 (page 20).

The DOD argues, “The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of TTPs or rules of engagement that will be employed in such operations.” The proposal does not exempt all TTP records, only those the Defense Secretary believes would provide an adversary “an operational military advantage.”

But the FOIA already has an exemption that protects properly classified national defense information. The National Security Archive joined a number of open government groups last year in urging the Senate to adopt the Leahy-Grassley Amendments that would strike the proposed FOIA exemption from the Senate National Defense Authorization Act for FY 2017. The amendments didn’t pass, but the language was removed in conference.

Steve Aftergood also noted when it was proposed last year, the proposed exemption “stops making sense where DoD ‘tactics, techniques and procedures’ are themselves the focus of appropriate public attention” – like interrogation techniques and offensive cyber operations that should be subject to vigorous public debate.

The Project on Government Oversight’s Liz Hempowicz told Federal News Radio, “People from DoD were asked by congressional staffers who were working on this whether or not they’ve had to release information previously in a FOIA request that they’d have to withhold under this exemption and [DoD] hasn’t.” Liz also argued that “the provision could be used to blanket other DoD internal documents that might not compromise troops, but are important to the public like sexual assault statistics.”

The DOD has attempted to expand its FOIA exemptions since the 2011 Supreme Court decision in Milner v. Department of the NavyThe decision “significantly narrowed” the scope of FOIA’s Exemption 2, which concerns information related solely to the internal personnel rules and practices of an agency, and the DOD wants to “reinstate the pre-Milner status quo with its more expansive withholding authority.”

Inspectors General Targeted

The New York Times Editorial Board recently published a vigorous defense of the inspectors general of the federal government (independent officials who investigate misdeeds at their agencies) in the wake of the Trump administration’s continued undermining of these critically important positions – by either leaving the positions vacant or proposing drastic budget cuts that would cripple the offices. (Keep in mind that Michael Horowitz, chairman of the Council of the Inspectors General on Integrity and Efficiency, testified before Congress in 2015 that “the offices identified $26 billion in potential savings and recovered an additional $10 billion through criminal and civil cases. That’s a return of $14 for every dollar in the offices’ budgets.”)

As of writing this, “nearly one-quarter of inspector general offices have either an acting director or no director at all, including the offices at the C.I.A., the National Security Agency, the Department of Defense and the Social Security Administration.”

The CIA hasn’t had an inspector general since David Buckley resigned in 2015, delaying sensitive internal investigations, like the one into the drone strike that killed Warren Weinstein, an American hostage being held by Al Qaeda in Pakistan. Prior to resigning, Buckley released a CIA IG report finding that five CIA officials improperly monitored Senate Intelligence Committee staff working on the torture report in February 2015, only to have the agency decide not to punish any of those involved.

The President’s budget also “takes unexplained specific aim at the Office of the Special Inspector General for the Troubled Asset Relief Program, created in part to monitor the $700 billion taxpayer bailout for big banks. That office has gone after 96 bankers; at least 36 went to prison. In 2015 its investigators helped prosecute General Motors for covering up a defective ignition switch responsible for at least 15 deaths, securing a $900 million settlement. The administration wants to cut its budget in half, to $20 million; as a result it has stopped accepting applications to its foreclosure prevention program.”

No Trump Tapes, Says Secret Service

The Secret Service told the Wall Street Journal in response to a FOIA request that it had no “audio copies or transcripts” of recordings made at the White House by President Trump. The existence of any such tapes has been the topic of debate ever since Trump appeared to threaten former FBI director James Comey over Twitter in May, saying Comey “better hope that there are no ‘tapes.’” Comey later testified before Congress that, “Lordy, I hope there are tapes.” The Wall Street Journal did not rule out the possibility of other agencies have such tapes. Trump has yet to clarify whether there are tapes or not.

DOJ Must Produce Sessions’ Clearance Form by July 12

Federal Judge Randolph Moss for the District Court of D.C. ordered the Justice Department to “make public a page of Attorney General Jeff Sessions’ clearance form, on which he was meant to disclose any contacts with Russian officials.” The decision came in response to a FOIA request from American Oversight and included an order to search for any records of Reince Priebus’ alleged outreach to the FBI concerning the Russia investigation.

NYT Promotes FOIA Litigation – but Don’t Forget to Appeal Even if No Intent to Litigate

David McGraw’s article in the New York Times, “Think FOIA is a Paper Tiger? The New York Times Gives it Some Bite,” draws major attention to the importance of FOIA litigation. Indeed, many of the stories broken by journalists using FOIA are only broken because those journalists successfully sue the agencies in court.

The article, however, is not geared toward the average requester. Most requesters, even many news media outfits smaller than the Times, don’t have the resources to file suit. The best bet for these kinds of requesters is filing a FOIA appeal.

While the article doesn’t directly mention the appeal process (although it is implied since in most instances you are filing suit after an adverse determination on an appeal, although not always), this is a critical step that gets more documents released for requesters in one out of three instances. The flip side of this is that the government improperly withholds information one out of three times – but the vast majority of adverse FOIA determinations go un-appealed. The most recent government statistics from the Justice Department show that government-wide, only four percent of FOIA requests were appealed in FY 2016 (15,095 appeals were filed out of 322,616 denials). If you extrapolate from these findings, that means in FY2016 alone the government potentially improperly withheld information in over 107,500 FOIA requests – and potentially millions of pages of documents that should have been released were not.

Key takeaway? Always appeal, whether you are litigating or not.

Ambassador Gerard C. Smith, responsible for nonproliferation policy during the Carter administration, meeting with President Jimmy Carter, 24 October 1979. Photo: Carter Presidential Library

Japan Plutonium Overhang Origins and Dangers Debated by U.S. Officials

Japan’s long-standing aspirations to develop a “plutonium economy” troubled U.S. officials going back decades as early as the Jimmy Carter administration, according to documents posted by the National Security Archive and the Nuclear Nonproliferation International History Project at the Woodrow Wilson International Center for Scholars.

The Japanese government appealed repeatedly in the late 1970s for authority to utilize American spent fuel for reactor experiments and for acceptance of the country’s right to resource self-sufficiency. Tokyo’s position sparked intense debate within the Carter administration, between those who wanted to avoid damaging ties with Japan and those – including the president – who placed a high priority on curbing the availability of sensitive nuclear technologies.

Among the newly declassified documents in this e-book is a National Security Council memo expressing concern that the inevitable surplus from Japan’s desired processing plans would “more than swamp” global requirements and create a significant proliferation risk involving tons of excess plutonium by the year 2000. Indeed, as a result of reprocessing activities since then, Japan possesses 48 tons of plutonium and could be producing more, with no clearly defined use, when a new reprocessing facility goes on line in 2018, unless Washington and Tokyo renegotiate a nuclear agreement that expires that same year.

Dispatch from Odessa

And here’s an update from Archive FOIA project director and Able Archer 83 expert, Nate Jones, who is currently doing nuclear research in Ukraine on a Nuclear Proliferation International History Project fellowship.

TBT Pick – Archive Petition Cracks Open Investigative File on Mexican Army Massacre

This week’s #tbt pick is a report, published jointly in March 2016 by the Archive and the investigative team at Aristegui Noticias in Mexico and released thanks to an Archive access-to-information request and appeal, provides more detailed evidence about the actions of Mexican Army soldiers accused of executing at least 11 people who surrendered after a June 2014 firefight in Tlatlaya, Mexico.  The Tlatlaya report was released in accordance with the human rights exception in Mexico’s access law and is a major victory for access to human rights information in Mexico. It raises new questions about how Mexican authorities have handled the investigation, the exact number of executions that occurred that day, and why some of the soldiers later changed their testimonies to implicate others in the crime.

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Happy FOIA-ing!

Will the Torture Report be Saved for History? FRINFORMSUM 6/8/2017

June 8, 2017

Cover page of the executive summary of the Senate report on the CIA’s torture program. The fate of the full report remains in danger.

Now is the Time for Archivist to Call the Torture Report a Federal Record

The Trump Administration reportedly is returning copies of the Senate Intelligence Committee’s report on the CIA’s torture program to Congress. The move would effectively hide the report from FOIA and public scrutiny and comes after years of FOIA lawsuits to win access to the historically significant document and hold accountable those responsible for torture.

The Archivist of the United States, David Ferriero, denied a formal request from the National Security Archive and others in 2016 to call the report what it is – a federal record. (The Presidential and Federal Records Act Amendments of 2014 gives the Archivist of the United States the authority to determine whether or not something constitutes a federal record.) Ferriero argued that doing so at that time would interfere with the ongoing FOIA case for the report brought by the ACLU.

The ACLU suit concluded this April when the Supreme Court declined the ACLU’s petition for a writ of certiorari, upholding a lower court’s decision that the report is a Congressional record, not a federal one.

It is now imperative that the Archivist act where others will not, and call the torture report what it is: a federal record. This will allow it to be reviewed on its merits via FOIA, even if it is found that parts of it must be currently withheld under Exemption One to protect national security. Claiming it is “not a record” so that it exists only in a land beyond FOIA would deprive the public of its right to a vitally important piece of our recent history.

DOJ Sits on Attorney Resignation Letters

The Justice Department is refusing to release copies of the resignation letters of the 46 U.S. attorneys; Attorney General Jeff Sessions ordered the attorneys to resign en masse in March.

The DOJ argued in response to a FOIA request from Burlington Free Press that the documents were “inherently personal and must be withheld” in full. USAToday reports that the DOJ made this determination without reading any of the letters. DOJ “Staff began working on the Free Press records request March 23 and immediately began to discuss withholding the resignation letters. Later that day, according to the FOIA processing notes, the department already had decided to ‘issue a blanket denial’ under the privacy exemption.”

Burlington Free Press appealed the denial, and was rebuffed a second time. The paper and its parent company are considering next steps.

Disappearing Daily Press Briefings at the State Department

Core practices of open government are eroding in the Trump Administration, with new limitations on the ability of the press to effectively question officials on U.S. foreign policy.” This is the opening line from a recent article by Steve Aftergood – who does not have a reputation for hyperbole –  on the discontinuation of the State Department’s press briefings.

As a point of comparison, last May the State Department held a press briefing every weekday with only two exceptions; this year the State Department had no daily press briefings in May (it held its first daily press briefing in five weeks on June 6). There were instead nine “special briefings” on pre-determined topics during the month of May.

Aftergood succinctly argues, “Daily press briefings both represent and reinforce a culture of open government. They are a window into the workings of the Administration, an expression of official self-understanding, a forum for challenging that understanding, and an opportunity to ask questions on almost any foreign policy subject, profound or trivial.”

Undated photo of Henry Kissinger and Otis Pike.

The White House, the CIA and the Pike Committee, 1975

The Ford administration came close to igniting a constitutional showdown with Congress more than 40 years ago over demands by a House panel known as the Pike Committee for evidence of possible abuses by the Central Intelligence Agency. At the height of congressional pushback against the “imperial presidency” in the mid-1970s, Representative Otis G. Pike’s investigation, which paralleled Senator Frank Church’s simultaneous inquiry, raised fears at the CIA and the White House about secret activities coming to light but also about setting precedents for Congress’s right of access to Executive Branch information.

A recent National Security Archive posting shows that the Ford administration initially stopped supplying Pike with documentation, and Secretary of State Henry Kissinger, among others, lobbied for a strong stand on unconditional secrecy, which would have escalated the confrontation dramatically. Pike eventually defused the crisis by establishing a procedure for congressional declassification of information – one that may have applications for future legislative probes of the Executive Branch.

TBT Pick – 106 Pinochet-Related Convictions in Chile

This week’s #tbt pick is chosen based on recent reporting that a Chilean judge has sentenced more than 100 former Pinochet regime agents to prison for “their role in the kidnappings and disappearances of 16 leftist militants during the Augusto Pinochet dictatorship.” The sentences ranged from 541 days to 20 years. This week’s #tbt pick is a 2016 posting that published – for the first time – a 1987 CIA special assessment concluding that “Pinochet ordered an ‘act of state terrorism’ on the streets of Washington, D.C., that took the lives of former Chilean diplomat Orlando Letelier, and his 25-year-old colleague, Ronni Moffitt.”

Visit the National Security Archive’s Chile Documentation Project page for all of our postings on Chile.

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Now is the Time for Archivist of the US to Call the Torture Report a Federal Record

June 2, 2017

Cover page of the executive summary of the Senate report on the CIA’s torture program. The fate of the full report remains in danger.

The Trump Administration reportedly is returning copies of the Senate Intelligence Committee’s report on the CIA’s torture program to Congress. The pernicious move, which would effectively hide the report from FOIA and public scrutiny, comes after years of FOIA lawsuits to win access to the historically significant document and hold accountable those responsible for torture. The New York Times reports today that “The C.I.A., the office of the Director of National Intelligence and the C.I.A.’s inspector general” have already returned their copies. The Archivist of the United States, David Ferriero, should now use his statutory authority to declare the report a federal record and preserve it for history.

Senator Dianne Feinstein (D-CA), then the head of the Senate Intelligence Committee, initiated the torture report in 2009 after learning that Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program, authorized the destruction of 92 video recordings of suspected Al-Qaeda leader Zain Abidin Mohammed Husain Abu Zubaydah being waterboarded 83 times in one month at a black site prison in 2005.

The Committee sent the completed report – 6,700 pages – to eight federal agencies, including the CIA, the Defense Department, and the State Department, in December 2014. Sen. Feinstein asked “that they incorporate the report into their records.”

That same year the ACLU sued the CIA under the FOIA for access to the report.

In January 2015 Sen. Richard Burr (R-NC), the new head of the Senate Intelligence Committee and staunch critic of the report compiled under Sen. Feinstein, sent a letter to the Obama White House requesting that all federal agencies and departments in possession of the report return it to the Committee immediately. Burr’s letter argued the report is “a committee sensitive document” and “should not be entered into any executive branch system of records.” Burr also requested that the Senate’s official referee “determine whether it was appropriate for the full, classified Intelligence Committee report to ever leave the Senate without the GOP being notified.”

In 2016, Archivist of the United States, David Ferriero, denied a formal request from the National Security Archive and others to call the Senate Intelligence Committee’s report on the CIA torture program what it is – a federal record. (The Presidential and Federal Records Act Amendments of 2014 gives the Archivist of the United States the authority to determine whether or not something constitutes a federal record.) Weeks before, Democratic Sens. Patrick Leahy of Vermont and Feinstein sent a similar letter to the Archivist, citing NARA’s responsibility “to advise other parts of the United States government of their legal duty to preserve documents like the Senate Report under the Federal Records Act, the Presidential Records Act, and other statutes.”

Ferriero refused, saying that to declare the report a federal record would interfere with the ongoing ACLU FOIA case.

Months after Ferriero made his decision, the CIA released documents on its torture program in response to two separate FOIA lawsuits. The agency disclosed detainee transcripts describing the torture program during the course of an ACLU suit, adding “first-person testimony to the growing historical record.” The CIA also released 50 documents in an overlapping FOIA lawsuit brought by Jason Leopold – now with Buzzfeed but who was working for Vice News when he filed suit; the heavily-redacted documents reveal the graphic conditions that led to the 2002 death of detainee Gul Rahman at a CIA black site prison in Afghanistan. The releases were a step in the right direction, but not a substitute for the report itself.

The ACLU suit concluded this April when the Supreme Court declined the ACLU’s petition for a writ of certiorari, upholding a lower court’s decision that the report is a Congressional record, not a federal one.

It is now imperative that the Archivist act where others will not, and call the torture report what it is: a federal record. This will allow it to be reviewed on its merits via FOIA, even if it is found that parts of it must be currently withheld under Exemption One to protect national security. Claiming it is “not a record” so that it exists only in a land beyond FOIA would deprive the public of its right to a vitally important piece of our recent history.