The Merchant of Death’s Account Book: Declassified Docs Reveal More Info on Government’s Opportunistic Relationship with Arms-Smuggler Sarkis Soghanalian
Documents posted today for the first time — in a collaboration between Unredacted and VICE News — provide insight into the U.S. government’s paradoxical and opportunistic relationship with arms dealer Sarkis Soghanalian, whose larger-than-life deals were so well known that he was inspiration for Nicholas Cage’s character Youri Orlov in the 2005 film, Lord of War.
Sarkis Soghanalian was the Cold War’s largest arms dealer, made over $12 million a year at his peak, and had his hand in seemingly every major conflict across the globe – with the U.S. government’s tacit approval. His largest weapons deal was a $1.6 billion sale to the Hussein regime at the outset of the Iran-Iraq War that included U.S. helicopters and French artillery, and he sold arms to groups in Lebanon, Libya, Mauritania, and Peru from the 1970s through the 2000s. Soghanalian was nicknamed the “Merchant of Death” for arming so many conflicts, a moniker he dismissed on the grounds that Alfred Nobel was named the same thing for inventing gunpowder, “and then they named it the Nobel Prize.” At one moment the U.S. government indicted Soghanalian for, among other things, wire fraud and violating United Nations (U.N.) sanctions, and freed him another once he provided useful intelligence.
The U.S. relied on Soghanalian’s unique intelligence so much that it kept him out of jail – for the most part. In 1982 he was sentenced to only five years probation for wire fraud in connection with reneging on a 1977 $1.1 million machine gun deal to Mauritania, and a federal judge dismissed all charges against him in 1986 after he was arrested at the Miami International Airport for possession of – among other things – two unregistered rocket launchers. Despite his oftentimes-illegal arms trade, the longest prison term Soghanalian ever served was two years in connection with the 1983 sale of 103 Hughes helicopters and two rocket launchers to Iraq in violation of U.N. sanctions. The initial sentence was six and a half years, but was reduced after Soghanalian helped Americans infiltrate a sophisticated counterfeiting operation in his native Lebanon. Soghanalian said, “When they needed me, the U.S. government that is, they immediately came and got me out.”
According to his October 10, 2011, Washington Post obituary, “He considered himself a fastidious businessman and required proof of his deadly wares’ delivery. Once, from Lebanese rebel fighters, he reportedly accepted human ears floating in jars of formaldehyde for assurance.” He also kept his lucrative business partners healthy, once flying “an American physician to Iraq to examine Hussein’s bad back.” Soghanalian allegedly had a particularly close relationship with President George H. W. Bush, who remarked that Soghanalian’s humanitarian work, which included airlifting supplies to the Soviet Union after a devastating earthquake left tens of thousands homeless, “strengthened the ties that unite mankind.”
After his 2011 death, the Archive filed a series of targeted FOIA requests for documents on Soghanalian to the FBI, the U.S. Central Command, the Defense Intelligence Agency, Immigration and Customs Enforcement, Border Patrol, and the Department of State. The hard work of archivists and declassifiers at these agencies resulted in the declassification of nearly 2,500 pages of documents on the notorious arms dealer, and today Unredacted is posting the ‘top 10’ documents from this trove. The vast majority of these 2,500 documents were disclosed by the FBI, which is a great resource for FOIA requesters interested in files the Bureau may have on someone who has died (FOIA tip: if you are requesting an FBI file like this, be sure to include an obituary in your request).
The documents posted today include:
- Evidence the FBI planned to meet with the CIA, Department of State, the Department of Defense, and at least one other unknown agency, in 1981 to coordinate the investigation into 1977 Mauritania deal.
- Reports on Soghanalian’s close ties with both the Armenian Church and the Armenian Secret Army for the Liberation of Armenia.
- Further details on the cooperation between Soghanalian and various U.S. government agencies (the FBI’s Miami office allegedly had an “excellent rapport” with him, and nearly investigated Newt Gingrich for bribery in 1997 based on Soghanalian’s information).
- Background materials for investigations into Soghanalian for wire fraud and money laundering.
- Bills of sale for his munitions deals.
What remains unclear is who Soghanalian’s primary government contacts were, aside from the FBI’s Miami bureau. Most believe he was a CIA informant, although others argue that Soghanalian’s handlers were primarily from the Defense Intelligence Agency and the White House, in part because Sarkis found “the found the [CIA] largely incompetent… [and] he repeatedly ran into their less than stellar arms buying operations and exposed and embarrassed them.”
Source: FBI Freedom of Information Act release.
In one of the earliest instances of the U.S. intelligence community investigating Soghanalian, this August 16, 1962, FBI Auto Information Disclosure Act report details one of Soghanalian’s early car dealerships. According to the bureau, Soghanalian was flying to Germany to purchase new VWs directly, importing them to the U.S. through Newark, New Jersey, and then shipping them in trailers he owned to his auto dealership, where he sold them in violation of New York State and federal auto laws.
Source: FBI Freedom of Information Act release.
A February 6, 1981, FBI docket of 15 documents translated from French to English concerning United Trade International, one of Soghanalian’s weapons firms, describes the November 16, 1977, sale of 197 heavy machine guns, ammunition, and cleaning kits to the Islamic Republic of Mauritania for $1,153,590. Browning Precision Tool, another Soghanalian-owned enterprise, certified the weapons and ammunition as new on November 2, 1977. Soghanalian later reneged on the agreement, was convicted of wire fraud in 1986, and served a five-year probation.
Source: FBI Freedom of Information Act release.
An earlier November 4, 1980, handwritten FBI “SPIT Request” characterizes the case as a “fraudulent weapons case” in which Soghanalian received $1.153 million and failed to deliver any products. The section of the request stating the desired objective of FBI involvement in the wire fraud investigation is withheld pursuant to the b(3) FOIA exemption.
Source: FBI Freedom of Information Act release.
A January 16, 1981, FBI memo concerning likely French involvement in Soghanalian’s 1977 arms sale to Mauritania, a former French colony. It states, “FBIHQ and USDJ should be aware that all major arms transactions in France are controlled by the French government or conducted with specific French government authorization and that ‘special relationships’ exist between France and former colonial possessions in Africa.”
Source: FBI Freedom of Information Act release.
An Unclassified January 22, 1981, FBI cable concerning a Special Agent from the Miami bureau’s tentative trip to Washington, D.C. According to the document, the purpose of the visit “is to coordinate investigation with the following agencies: 1. CIA, Headquarters, Langley, Virginia; 2. United States Department of State; 3. Department of Defense; 4. [Redacted]. Purpose of coordination visits to CIA, State, and Defense Departments is to review departmental files on subject and ascertain if these agencies have any information which could jeopardize successful prosecution of subject. Purpose of visit [Redacted].”
Soghanalian insisted that despite his line of work, he never acted against U.S. policy interests –in part because constant U.S. surveillance would have made it very difficult. In a 2001 Frontline interview he said, “The Americans knew what I was doing, every minute, every hour. If I drank a glass of water, they were aware of it and what kind of water it was.” While Soghanalian insisted he never acted against U.S. foreign policy goals, in the same interview he said when the U.S. approached him about selling weapons to Iran during the Iran-Iraq War he refused, saying arming “Iran is like riding two horses in a horse race. You can’t do that.”
Source: FBI Freedom of Information Act release.
A Secret January 15, 1988, FBI report on Armenian Terrorist Matters cites Soghanalian’s status as a Knight of Antelias – the highest award of the Armenian Church. The document also details land purchased by Soghanalian in Ft. Lauderdale, Florida to build a monastery, as well as his contributions to a monastery in Armenia. The source cited in the report further notes that Soghanalian made appearances on the West Coast on behalf of the Hunchaks and Dashnaks, the Social Democrat Hunchakian Party and the Armenian Revolutionary Federation respectively.
Source: FBI Freedom of Information Act release.
A Secret January 8, 1988, FBI memo iterates that the Miami Division has “an excellent rapport with Sarkis Soghanalian and could freely discuss with him his association and knowledge of the Armenian Hunchak party and the independent visit of Armenian Pope Vacker I to Canada.”
Soghanalian’s relationship with the Miami bureau was so close it nearly led to a 1997 investigation of Speaker of the House Newt Gingrich for bribery. According to Sarkis, he informed the Miami bureau that Gingrich’s wife Marianne said in a 1995 meeting that for $10 million she could convince her husband to lift Iraqi sanctions, allowing Soghanalian to collect on the $80 million debt Saddam owed him. The investigation never went forward, however, because there was not enough evidence to support Mr. Gingrich having any knowledge of the plot.
The Secret 1988 memo also notes that in “late 1987, Sarkis played a critical role in an attempt to transport former president Ferdinand Marcos from Honolulu, Hawaii to the Philippines in a possible coup attempt.”
Source: FBI Freedom of Information Act release.
A Secret, undated FBI memo states on April 16, 1985, a source informed the bureau that he put Sarkis in contact with Bell Helicopter, and that Soghanalian was providing Iraq with 45 Bell 214ST helicopters at a cost of $4,000,000 each. The source also says that Soghanalian is “well protected and connected with the U.S. government. His contacts are [redacted].”
Source: FBI Freedom of Information Act release.
A January 8, 1999, FBI transcription of an interview with an unidentified suspect in connection with a multi-million dollar wire fraud case that concerns the suspect’s fraudulent cashing of a $3,000,000 cashier’s check. During the course of the interview, the suspect says he visited Soghanalian to cash the check because Sarkis was “very wealthy,” and claimed “Saddam owes [Soghanalian] 95,000,000 for the weapons he sold to Iraq.” Soghanalian said he could cash the check “no problem,” but that he would have to do so in Europe due to tax troubles in the U.S. Soghanalian was arrested in 2001 for his participation in the check scheme, but was released once he revealed the CIA’s support of Peruvian intelligence chief, Vladimiro Montesinos, and his orchestration of a plot that saw 10,000 assault rifles (purchased from Soghanalian under the belief they were intended for the Peruvian military) diverted to the Revolutionary Armed Forces of Colombia (FARC) – a U.S. designated terrorist organization.
Document 10: Department of Justice letter to the Acting Chief of the DOJ’s Internal Security Section Criminal Division from U.S. Attorney Alejandro Mayorkas, “Subject: Search Request re: Sarkis Soghanalian,” June 2, 1999.
Source: FBI Freedom of Information Act release.
A June 2, 1999, Department of Justice memo summarizes the check scheme as follows: “A number of individuals would recruit various individuals to steal bank cashier’s checks from banks and to convert checks into cash by conducting a series of monetary transactions at casinos and other financial institutions. At least two such checks were stolen from a bank made payable in the amounts of $300,000 and $3 million. The $3 million cashier’s check was fraudulently made to T.I.D.R., a company believed to be controlled by Soghanalian, who attempted to cash the check at a bank in Paris in August 1995. Through various co-conspirators who have cooperated with the government, and through other channels, we have learned Soghanalian has provided information to the government in the past…In this regard, this office requests that you ask the relevant components of the intelligence community to conduct a search of Sarkis Soghanalian’s files to determine whether Soghanalian has had or currently has any relationship with any intelligence agency and whether any payments (or other benefits or promises) have been made to him.”
Senate Judiciary Unanimously OK’s FOIA Bill, Critics of New Cyber Center Say it’s Redundant, and Much More: FRINFORMSUM 2/12/2015
The Senate Judiciary Committee unanimously approved the FOIA Improvement Act of 2015 last week, and the next step is a vote on the Senate floor or passage via unanimous consent. Both the Senate and the House recently reintroduced bipartisan FOIA legislation containing improvements that will help ordinary requesters by, among other things, reining in the oft-abused b(5) exemption, fixing fee issues, and strengthening the FOIA ombuds office. A great LA Times Editorial recently noted that the upgrades in both bills are a step in the right direction that deserve the Obama administration’s “vocal support” to help get more documents to more requesters more quickly.
The Sunlight Foundation recently scored a big win for open government. In response to its 2013 FOIA request and FOIA lawsuit, the Office of Management and Budget (OMB) announced it will release what is thought to be the largest index of government data in the world – federal agencies’ Enterprise Data Inventories. The EDI’s “are comprehensive lists of a federal agency’s information holdings” and will provide an “unprecedented view” into data held across US. While noting there is no guarantee the EDI’s will contain all the information mandated by President Obama’s executive order concerning the indexes, the Sunlight Foundation commended the OMB for recognizing “that open data is worth the work it takes to disclose” them. Too bad it took the threat of legal action to force OMB to release this treasure trove of Open Government information.
This week the Obama administration announced the creation of a new agency – the Cyber Threat Intelligence Integration Center – whose “mission will be to fuse intelligence from around the government when a crisis occurs.” The new agency will be modeled after the National Counterterrorism Center, will be part of the Office of the Director of National Intelligence, will begin with a staff of 50 from agencies including the NSA and the FBI and others, and have a budget of $35 million. Critics of the center argue that several organizations dedicated to monitoring and analyzing cyber threats already exist, and the focus should be on improving their performance – not creating more bureaucracy. Former White House cybersecurity coordinator Melissa Hathaway noted, for example, that “The Department of Homeland Security, the FBI and the National Security Agency all have cyber-operations centers, and the FBI and the NSA are able to integrate information.”
Privacy advocates are drawing attention to a “gaping” loophole in the modest changes President Obama recently announced to the Intelligence Community’s (IC) surveillance practices, changes that include a three-year time limit on the gag orders contained in the FBI’s national security letters (NSL) – which currently do not require any judicial oversight. Critics argue the new time limit has few teeth, and that “FBI agents can essentially write themselves a permission slip to keep a national security letter secret past the deadline, as long as they receive approval from supervisors.” The Electronic Frontier Foundation’s (EFF) legal fellow Andrew Crocker notes, “This exception is essentially full discretion to FBI officials.”
The Department of Justice Inspector General recently issued a classified report on the FBI’s activities under Section 215, entitled “The Federal Bureau of Investigation’s Use of Section 215 Orders: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009.” The DOJ IG announced it will “issue a public, unclassified version of the report, with any necessary redactions, at the conclusion of a separate and final classification review currently being conducted by the FBI.”
The EFF filed a FOIA lawsuit this week for records on the US Marshals’ harvesting of data from American cell phones from “stingrays” – small planes “mounted with controversial cell-phone tracking systems.” Last year the Wall Street Journal revealed the Marshals collect “large amounts of data from Americans’ cell phones through devices mounted on airplanes in an effort to locate fugitives” as part of a program that is run out of five unidentified large metropolitan areas. The Department of Justice refused to either confirm or deny the Journal’s reports.
A bipartisan group of Senators recently filed a friend-of-the-court brief supporting the New York Times and ACLU’s FOIA lawsuit seeking documents related to the DOJ’s legal bases for the 2011 targeted killing of three Americans in Yemen. Sens. Ron Wyden (D-Or), Rand Paul (R-Ky), Jeff Merkley (D-Or.), and Martin Heinrich (D-NM) wrote the court that they were concerned by the executive branch’s efforts to frustrate the FOIA, and argued “the government should not be creating a body of ‘secret law’ concerning the extrajudicial killing of American citizens.”
John Kiriakou, the CIA’s former director of counterterrorism operations in Pakistan who was charged with leaking the name of a covert CIA agent to a reporter under a 1982 law making it a crime to publicly identify covert CIA agents, has been released to home confinement. Kiriakou remains the only government official to ever have been charged in relationship to the agency’s torture program – ostensibly for discussing it publicly –, and “is one of eight current or former government employees prosecuted by the Obama administration for disclosing secrets to reporters; only three such cases were prosecuted under all previous presidents.”
The Environmental Protection Agency (EPA) partially recalled documents – twice – released in response to a FOIA lawsuit for information concerning some of the nation’s largest waterway polluters after industry complaints. The recalls took place after a 2013 court case ruled in favor of several NGOs seeking the records and against the American Farm Bureau Federation and the National Pork Producers Council — finding the firms couldn’t prove they were harmed by EPA releasing the requested records. The EPA released the data after the court’s ruling, only to ask all of the records back after industry complaints (most of the NGOs complied, but at least one did not). The EPA re-released the data, only to ask for it back yet again after yet more complaints, until finally releasing a “subset of data that largely conformed to industry’s demands.”
The Navy announced this week it censured three admirals in connection with a far-reaching bribery scandal involving Malaysian contractor “Fat Leonard” Glenn Francis, who pleaded guilty last month to “bribing ‘scores’ of Navy officials with prostitutes, envelopes stuffed with cash, luxury travel and other enticements in exchange for classified information that he used to cinch federal contracts.” The admirals’ alleged misconduct occurred in 2006 and 2007 and included accepting extravagant dinners and gifts. What’s being described as the largest corruption scandal in Navy history is poised to grow, as Francis begins cooperating with government investigators.
This week’s #tbt document pick is chosen with the EPA’s sometimes bizarre-to-bad FOIA practices in mind, and concerns a 2010 EPA IG report that the agency “intentionally stopped keeping records concerning potentially hazardous landfills in New Mexico in order to circumvent the disclosure requirements of the Freedom of Information Act.” An interview with an EPA employee documented in the IG report details the agency’s discontinuation of “record keeping in favor of undocumented phone calls and conversations to prevent the production of documents [which could have been requested through the Freedom of Information Act].” Nate Jones notes that the silver lining in this case was “that the EPA Inspector General took an active role in enforcing proper FOIA policies.” The Archive and the FOIA Advisory Committee are currently collecting and posting oversight reports such as this. Send them here.
The FOIA Advisory Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration,” held its third meeting on January 27th (video streaming is available here and here). The Committee consists of ten government and ten non-governmental FOIA experts – including the Archive’s FOIA Project Director Nate Jones – and previously identified proactive disclosure, fee issues, and oversight and accountability as their primary focus areas. Their latest meeting – which was not live streamed unlike previous meetings despite the Committee’s charge to help “modernize” the FOIA – was dedicated to subcommittee reports on these issues, with highlights including the proactive disclosure subcommittee challenging agencies to identify instances where documents could not be made 508 compliant, and another rousing conversation regarding fee categories.
It’s worth noting before delving into the details of the meeting that it was chaired by acting Office of Government Information Services (OGIS) director, Nikki Gramian, who is temporarily replacing Miriam Nisbet, who retired at the end of November. Since Nisbet’s retirement OGIS has been unable to hire, or even post a call for applicants to apply for the director position. Nate Jones voiced the Archive’s “extreme concern” that the FOIA watchdog remains directorless, and called for action so that OGIS can continue not only facilitating the FOIA Advisory Committee, but providing its crucial role providing mediation and compliance services at full capacity. Hopefully OGIS will soon be able to begin the hiring process and continue carrying out its pivotal duties, which benefit FOIA requesters and processors everywhere and help symbolize the White House’s commitment to its NAP and open government.
The Federal Communication Commission’s David Reed, speaking on behalf of the proactive disclosure subcommittee, dedicated much of his report to the challenges of identifying high-value types of records for proactive disclosure. Reed noted the most widely available tool for determining what records were most requested to help identify high-value records are agency FOIA logs, however there is currently a wide variety in both quality and depth of information available in these logs, with some agencies still not making them available. Reed solicited agency help in finding a robust data set to work with to identify key categories of documents, requests, and requestors, in order to make concrete recommendations about where to begin with proactive disclosure in order to have the largest impact with the least effort.
Reed also dedicated time addressing proactive disclosure with accessibility under Section 508. Reed noted that Section 508 has required agencies to ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts since 1998. Therefore, most records the government produces should already be 508 compliant. Agencies, however, routinely argue that making documents 508 compliant is too burdensome – even though agencies including the Department of State and all the agencies that participate in FOIAonline routinely demonstrate otherwise, regularly posting their records online and in full compliance with Section 508.
To help address this problem, Reed put forth a Straw Man proposal, challenging agencies to cite specific instances where documents could not be made 508 compliant, in order to help troubleshoot such instances going forward and eliminate 508 compliance concerns as a barrier to access. Any agency FOIA shop with legitimate 508 compliance concerns not yet addressed that the committee is missing should send them here.
The subcommittee addressing fee issues underscored the need to address often ill-defined fee categories, which are confusing for both FOIA officers and requesters. Many inside the requester community believe charging fees based on ill-defined requester categories can be a ploy by agencies to discourage FOIA requests, while FOIA officers often argue fees are a necessary tool to encourage requesters to narrow the scope of their requests and to discourage “extreme” requesters. The subcommittee again noted the existence of much fee-related acrimony that seemed to underscore the need for uniform fee standards, if little else. Again, agencies recoup less than 1% of the total costs related to the government’s FOIA activities through FOIA fees. As Nate Jones points out, Congress may be moving faster than the Committee on one fee issue. The Senate’s FOIA reform bill, S 337, closes a fee loophole that some agencies have created; clearly reaffirming that agencies may not charge non-commercial “search and review” fees if they miss either their 20-day deadline for processing a FOIA request, or the 10 day extension granted for “unusual” requests.
A brief discussion also took place concerning the applicability or necessity of having a provision in the FOIA that would categorize certain requesters or requests as “extreme,” though it was ultimately decided the time spent identifying such requests would be too time-consuming, and the potential for agency mischief to be too high, for such an endeavor to be useful. The fees conversation stirred up quite a thread on the FOI-L listserv.
The oversight and accountability subcommittee announced it has begun compiling a list of previously released reports on agencies’ compliance with the FOIA in an attempt to identify what current authorities for oversight exist, and areas where there are opportunities for additional oversight. The list is available on the National Security Archive’s website, and the subcommittee encourages members of the public to submit reports that the subcommittee might have missed, and help studying the content of the reports. The subcommittee also reiterated its suggestion of evaluating past litigation review efforts to determine if another review is necessary to cut down on litigation and increase administrative solutions to FOIA disputes.
This is a crucial step as the Department of Justice’s (DOJ) current stance on FOIA disputes appears to be a “defend everything” one. While the 1993 FOIA litigation review “of the merits of all pending and prospective FOIA litigation cases in accordance with the Department’s new FOIA policy standards” conducted by Attorney General Janet Reno led to the “complete resolution” of more than a dozen FOIA lawsuits, there has been no evidence that the Department of Justice has conducted a similar review since the beginning of the Obama administration. Additionally, despite a pledge from DOJ Office of Information Policy (OIP) director Melanie Pustay to provide the Senate Judiciary Committee a list of all FOIA cases that the DOJ has refused to defend, no such list has been presented to the public. Conducting a full litigation review would go a long way to strengthen the government’s and the Department of Justice’s commitment to FOIA.
All documents discussed during the meeting are available here. The Committee’s next meeting will be held April 21, 2015.
FOIA Bills Reintroduced in Both House and Senate, Modest Changes to Surveillance Practices Announced, and Much More: FRINFORMSUM 2/5/2015
Representatives Darrell Issa (R-Ca) and Elijah Cummings (D-Md), and Senators Patrick Leahy (D-Vt) and John Cornyn (R-Tx), are renewing a bipartisan, bicameral effort to strengthen the FOIA after similar legislation died by the end of last year’s congressional session. As the Archive’s Nate Jones points out, both bills contain improvements that will help ordinary requesters by, among other things, reining in the oft-abused b(5) exemption, fixing fee issues, strengthening the FOIA ombuds office, and would help get more documents to more requesters more quickly. Senate Judiciary Chairman Chuck Grassley (R-Ia) has already placed the Senate bill on this week’s committee calendar, and transparency advocates are both hopeful and heartened by the bills sponsors’ “continued championship of openness and accountability in government.”
The Obama administration recently announced modest changes to the Intelligence Community’s (IC) surveillance practices in an attempt to promote privacy and civil liberties. The changes – announced a year after the President said he would end the bulk surveillance programs revealed by National Security Agency (NSA) contractor Edward Snowden – include placing a three year time limit on the gag orders contained in the FBI’s national security letters (NSL) – whose lack of judicial oversight has been a longstanding concern for privacy advocates, new restrictions for warrantless searches conducted under Section 702 of the Foreign Intelligence Surveillance Act, and new mandates that evidence collected under 702 cannot be used as evidence in court – unless the attorney general deems the case has “national security implications or [for] certain other serious crimes.”
While many privacy advocates note the changes are in the right direction, some argue the stipulations’ vague wording provides little concrete improvement to current collection methods. Gregory Nojeim, senior counsel for the Center for Democracy & Technology, points out the NSL concessions still do “not meet the constitutional standard” and that the FBI should be required to prove a likelihood of harm exists in court before issuing an NSL. The Brennan Center for Justice’s Liberty and National Security Program director, Elizabeth Goitein, notes, “we still have massive amounts of Americans’ communications being collected under these foreign intelligence authorities and searched without a warrant.” Senator Ron Wyden (D-Or) echoed these concerns saying, “When it comes to reforming intelligence programs and protecting Americans’ privacy, there is much, much more work to be done.”
One distinctly notable achievement in the announcement was extending the same privacy rights to foreigners as Americans by banning intelligence agencies “from disseminating information about foreigners to other countries’ intelligence agencies without considering their privacy.” Privacy and Civil Liberties Oversight Board (PCLOB) chairman David Medine noted the unprecedented nature of this decision, saying “There’s no country on the planet that has gone this far to improve the treatment of non-citizens in government surveillance. That alone is remarkable after the events of the last year and half because in most countries non-citizens are fair game.”
Obama’s announcement of tweaks to IC collection practices comes months before Section 215 of the Patriot Act, which the NSA cites to justify its data collection, is set to expire. Yet Robert Litt, the Office of the Director of National Intelligence general counsel, said this week that there is “no backup plan if Congress didn’t reauthorize [Section 215] allowing the bulk collection of telephone records by its June expiration date.” Despite the lack of an alternative, a recent PCLOB report argues it is “now well past time for the administration to have developed alternative procedures and alternative relationships with the telephone companies to stop the daily flow of data to the government.”
The NSA’s own director of privacy and civil liberties, Rebecca Richards, recently appeared on The Cyberlaw Podcast cautiously suggesting that whatever the fate of Section 215 is, the NSA should stop relying on secret or “cute legal interpretations” of the law to carry out its surveillance. While it’s notable a NSA official has gone on the record insinuating the agency’s practices are inconsistent with privacy rights, she was criticized for failing to address the agency’s breaking of “privacy rules or overstep[ing] its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.” Senator Chuck Grassley (R-Ia), for example, is still waiting for the agency to explain how it handled employees who abused their surveillance capabilities by spying on their lovers’ phone records.
Information regarding the building of Afghan security forces – a $65 billion endeavor – has been available for the last six years, but a recent query from the command’s inspector general revealed the sudden classification of much of this information – allegedly because the information posed a grave security risk if it remained available. After receiving intense criticism over its classification of previously available information – including how much money the US spent feeding and teaching Afghan forces to read and write –, the Afghanistan military command has backtracked and is now declassifying some – about 90% – of the material.
The ACLU recently filed an emergency motion to block Sen. Richard Burr’s (R-NC) efforts to repossess copies of the Senate Intelligence Committee’s report on the CIA’s torture program. Last month Burr, in a move many believe is an attempt to prevent the report from being released in response to future FOIA requests, sent a letter to the White House requesting that all federal agencies and departments in possession of the report return it to the Committee immediately, arguing the report is “a committee sensitive document” and “should not be entered into any executive branch system of records.”
The Pentagon recently released emails top brass exchanged with Tampa socialite Jill Kelly in response to a FOIA request. Kelly’s relationship with General David Petraeus sparked jealousy in Petreaus’ biographer and mistress, Paula Broadwell, who derided Kelly in anonymous emails to military officials. The anonymous emails spawned an FBI investigation, which revealed the Petraeus-Broadwell affair, and ultimately led to Petraeus’ forced retirement. Last month the the FBI and DOJ prosecutors recommended bringing felony charges against Petraeus for giving classified information to Broadwell over the course of their relationship, forcing Attorney General Eric Holder to decide whether or not he will seek an indictment of the retired four-star general.
National Declassification Center (NDC) director Sheryl Shenberger recently posted an updated list of prioritized NDC projects for final declassification. While the status report on the records researchers chose from a select list to jump to the head of the queue for final processing is useful, it would be more useful if the full list of documents reviewed for declassification but not for final processing was also released so researches can request further prioritizations. Hopefully the NDC will also begin addressing the problems of equity re-reviews and the ineffectiveness of pass/fail determinations in addition to prioritizing high interest document sets.
The National Security Archive recently published Ambassador Prudence Bushnell’s never-before-seen personal notebooks, which she generously donated to the Archive. The notebeooks help fill the void left by agencies –especially the Clinton Library and the Department of Defense– that have yet to release hundreds of important documents on the Rwandan genocide, and help illustrate the complexities of the decision-making processes, the relationships between international parties, and Bushnell’s own interactions with on-the-ground actors in the conflict:
This week’s #tbt document pick is chosen with the Archive’s recent posting of a compilation of over 50 documents concerning US intelligence collection and analysis on the Soviet space program in mind. This week’s pick is the Air Force Ballistic Missile Division’s April 1960 study whose objective was to “determine an economical and sound approach for establishing a manned intelligence observatory on the moon.” The study states that decisions concerning the types of strategic systems to be placed on the moon (including a Lunar Based Earth Bombardment System) could be safely deferred for three to four years.
This week’s lockstep introduction of bipartisan Freedom of Information Act bills in the House (H.R 653) and the Senate (S 337) is a good sign for those who want the release of more government documents, more quickly, to more people.
The Senate bill was introduced by Senator John Cornyn (R-Tx) and cosponsored by Patrick Leahy (D-Vt) and Charles Grasssley (R-Ia), the ranking member and chair of the Senate Judiciary Committee. It is virtually identical to the bill that passed the Senate via unanimous consent last session. (By my reading the only minute change was a clarification that documents must be posted online when they are requested “3 or more” times, rather than “not less than 3.”)
The House bill was introduced by Representative Darryll Issa (R-Ca) and consponsored by Elija Cummings (D-Md) and Mike Quigley (D-Il). It, on the other hand, is clearly stronger than the House bill that passed 410-0 last session.
The most prominent addition to the House bill is language reforming the oft-abused Exemption 5 which allows for the withholding of any “interagency or intra-agency communication,” including draft documents. The previous House bill did not alter this exemption. The new House language changes Exemption 5 so that, “records that embody the working law, effective policy, or the final decision of the agency” (such as Office of Legal Council memos) cannot be withheld. This bill also mirrors the Senate bill in ensuring that agencies cannot use Exemption 5 for information that is older than 25 years. (The Presidential Records Act forbids the use of Exemption 5 for all documents beginning 12 years after the president leaves office.)
The House bill also has welcome language instructing (but not enforcing) agencies to “make information public to the greatest extent possible through modern technology.” By my reading, this means that all agencies should match the practices of the State Department, National Archives, agencies participating in FOIA Online (including the Department of Commerce and Environmental Protection Agency) and proactively post the vast majority of FOIA releases online. Though past agency FOIA performance shows this is far from guaranteed.
One more bit of language the House bill has that I like is its mandate that agencies’ FOIA processing has “standards for interoperability” in their FOIA processing software. Outdated proprietary software and legacy contracts of FOIA processing programs have led to a profound non-functionality of FOIA technology. The opensource wizzes at 18F are also aware of this problem and working to fix it.
In what I believe to be an astute political move, the Senate re-introduced last session’s bill that 100 Senators agreed upon. And Senator Grassley, Chairman of the Senate Judiciary Committee, is moving quickly with it, placing it on the Judiciary Committee’s agenda for (tomorrow!) February 5th. There is a possibility it will be voted out of Committee before the end of the month.
Though this is a quick move, I don’t think it is a rash one. Last session Senators Cornyn and Leahy worked agonizingly hard to secure support and assuage worries over FOIA from each Senator (including the removal of a public interest balancing test for Exemption 5 withholdings). I think it’s the smart move not to reopen this can of worms and work with Senators to re-pass the good FOIA bill they supported last session.
There is at least one provision in the Senate bill that House drafters would be wise to adopt in their (I suspect) more expansive Oversight and Government Reform committee amendments. That is something closer to the Senate’s langue on the “fee fix” issue.
When media, educational or scientific institutions submit FOIA requests, the majority of their fees are always waived. This is not the case for everyday requesters, who are often charged expensive “search and review” fees. The 2007 Open Government Act partially reduced these fees by mandating that a requester could not be charged fees if an agency missed the 20-day deadline to process the FOIA request.
Troublingly, however, agencies (ostensibly with DOJ support) have began successfully eluding this fee improvement simply by labeling requests as “unusual” and claiming that these “unusual” requests were unprotected. The Senate bill makes clear that “unusual” requests (that are fewer than 50,000 pages) get the standard FOIA extension of 10 days. After that an agency can only charge reproduction fees.
Other improvements that are in both bills include:
- Requiring agencies to update their FOIA regulations within 180 days after the passage of the bills. (Currently, over half of federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.)
- Codifying the presumption of openness, thereby requiring records be released, unless there is a foreseeable harm or legal requirement to withhold them. This language mirrors the Obama administration’s and the Department of Justice’s (non binding) instructions on FOIA.
- Improving public digital access to released records.
- And, strengthening and increasing the independence of the FOIA Ombuds Office, the Office of Government Information Services (OGIS). Senator Chuck Grassley once threatened to drive his car to the Office of Management and Budget to force the release of blocked FOIA Ombuds recommendations.
The way I see it, three hurdles remain before these bills become law. The first is passing out of both committees. Though, with previous bipartisan votes and the support of chairs and ranking members, passage out of committee before Sunshine Week (March 15) 2015 is not impossible. Look for a quick vote in the Senate and a bit more negotiation in the House.
The second hurdle will be reconciling Senate and House bills in conference. Last session, the strategy was for the House to adopt the Senate bill after the Senate added key House provisions in the Senate via amendment. This time, I suspect, the Senate and the House will pass their own bills and the differences will be ironed out in conference. Hopefully the strongest portions of both bills will make the final legislation. The Senate bill’s early introduction means that unless Majority Leader Mitch McConnell (R-Ky) obstructs it, it will only require 60 votes to become law, not the support of 100 senators that last session’s time constraints required.
The third and final hurdle will be getting House and Senate leadership to bring the final FOIA bills up for a vote. This is where covert lobbying by pro-secrecy government and private interests prevailed last session. This time, at least for now, leadership seems keen to support this bipartisan legislation. Speaker Boehner has pledged that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.” I predict Majority Leader McConnell will also allow a vote on FOIA reform.
Finally, the biggest advantage openness advocates have this time around is that those in favor of secrecy (and Janus-Faced supporters of open government) will have a much harder time running out the clock. Because these coordinated, bipartisan bills were introduced by Senators Cornyn, Leahy, Grassley, and Representatives Issa, Cummins, and Quigley extremely early in the session, opponents of FOIA reform will have a much harder time stalling or killing these bills.
By Sarah Reichenbach
The National Security Archive recently released Ambassador Prudence Bushnell’s never-before-seen personal notebooks from her critical work on the 1994 Rwandan genocide. After the genocide started, Bushnell was charged with pursuing a ceasefire through “diplomatic means” and her notebooks contain detailed notes from key phone conversations with leaders from both the Rwandan Patriotic Front (RPF) and Rwandan Government Forces (RGF). Bushnell’s personal records both help fill the void left by agencies –especially the Clinton Library and the Department of Defense– which have yet to release hundreds of important documents on the genocide, and help illustrate the complexities of the decision-making processes, the relationships between international parties, and Bushnell’s own interactions with on-the-ground actors in the conflict.
At the time of Bushnell’s notebooks, US strategy was to demand that both the RGF and RPF agree to a ceasefire in order to stop the killings. Bushnell urged both sides to agree to a ceasefire through numerous telephone conversations with RPF leader, Paul Kagame, and Rwandan government officials, General Augustin Bizumungu and Col. Theoneste Bagosora, the leader of the RGF who helped create the Interhamwe, a strongly anti-Tutsi minority militia and was indicted for playing a key role in the planning and execution of the slaughter of approximately 800,000 of Rwandan Tutsis and moderate Hutus. Some of the most fascinating and chilling portions of Bushnell’s notebooks include notes taken during her phone conversations with genocidaire Col. Bagosora.
In one conversation with Bagosora at the end of April 1994, several weeks after the genocide began, Bushnell demands an immediate halt to the massacres. Bagosora, however, tells Bushnell that he does not have the power to stop the killings and, as her notes read, that a “ceasefire does not work.” Bagosora argues that Rwanda is in the midst of a civil war over which he has no control. An Unclassified April 29th, 1994, Department of State cable describes Bagosora as saying the killings are “a spontaneous reaction by the population to the RPF offensive,” attempting to frame the genocide as an uncontrollable effect of RPF attacks instead of the carefully planned and orchestrated massacres of civilians by government forces they were.
In a 2013 interview, Bushnell, aware of the intent behind the perpetrators’ actions, further recounts her conversations with Bagosora:
“This is to Bagosora in the middle of the night. Stop the killing. And oh, Madame, you don’t understand, there is a civil war going on here, and we do not have the forces to stop the spontaneous uprising of the people, was how we called it. Well, at least stop the hate radio. Ah, mais Madame, we are a democracy. We believe in freedom of the press. That is how ridiculous or bizarre our conversation was.”
The April 29th cable further recounts the conversation and Bushnell’s response to Bagosora in which she told him the world does not accept the RGF’s claims, and that “in the eyes of the world, the Rwandan military engaged in criminal acts, aiding and abetting civilian massacres.” Bushnell reminds Bagosora of the Rwandan government’s prior commitments to implementing the Arusha Accords, the 1993 Rwandan peace agreement that aimed to end the civil war between the RGF and RPF, and Bagosora’s apparent unwillingness to end the massacres was in violation of those commitments. Bushnell’s comments are described in the cable as seeming to “take Bagosora by surprise and sobered him.”
In a 2013 interview with the National Security Archive, however, Bushnell recalls Bagosora’s reaction to her demands quite differently:
“In that conversation, I advised Bagosora that we would hold him personally accountable for what was happening and that the President knew about it…He said, ‘How nice of the President to be thinking of me.’”
Despite his confidence, Bushnell’s warnings proved correct and in 2008 Bagosora was convicted of conspiracy to commit genocide, genocide, complicity in genocide, and crimes against humanity in the International Criminal Tribunal for Rwanda (ICTR), receiving a life sentence for his crimes.
Bushnell’s contribution to the National Security Archive has greatly enhanced our understanding of the complex inner workings of the US government during the Rwandan genocide. Her willingness to share her personal accounts will help policy analysis and our understanding of genocide going forward. Hopefully Ambassador Bushnell’s valuable contribution to the historical record will also motivate federal agencies to act in accordance with open government principles and continue to add to the official record on this historically significant event.
Bushnell, Prudence. Oral History Interview, November 22, 2013, Washington, D.C., The National Security Archive.
FOIA Reform Hopes to Get Another Shot in 2015, Lynch Avoids Answering FOIA Questions During Senate Nomination Hearing, and Much More: FRINFORMSUM 1/29/2015
FOIA advocates are hoping for a better 2015 after the uncontroversial, bipartisan FOIA Improvement Act unceremoniously died at the end of last year’s legislative session – all because House Speaker John Boehner (R-Oh) failed to schedule a vote on it. Promisingly, Rep. Elijah Cummings (D-Md) announced he wants to pass FOIA reform “quickly” this year, and hopes to send FOIA reform legislation to the President by Sunshine Week, the national government transparency event that will take place this March. Citizens for Responsibility and Ethics in Washington’s Anne Weismann is hopeful that introducing the bill earlier in the legislative session will improve the bill’s chances of passing, and Sunlight Foundation’s Sean Vitka says “This time around, everyone is on notice. Last-second concerns — real or fabricated, national security or banking — shouldn’t be used as a stalling tactic designed to kill broadly supported, bipartisan legislation.”
Attorney General nominee Loretta Lynch was grilled by the Senate Judiciary Committee this week. Senator John Cornyn (R-Tx) asked Lynch both about the her current office’s poor FOIA performance and the Obama administration’s “presumption of openness,” and Lynch avoided making any clear statements on either. Lynch did say, however, that she believes the National Security Agency’s surveillance is “constitutional and effective.” Freedom of the Press Foundation co-founder Trevor Timm noted Lynch can immediately assuage transparency advocates’ concerns about her nomination “by dropping the Justice Department’s resistance to the FOIA lawsuits as soon as she is confirmed.”
Google recently disclosed internal documents showing the company gave the US government Gmail “account content” of three WikiLeaks journalists in response to an espionage investigation targeting WikiLeaks founder Julian Assange. The journalists – Sarah Harrison, Joseph Farrell, and Kristinn Hrafnsson – were only informed Google provided the government their “Gmail account content, metadata, subscriber information, and other content” in response to warrants issued in March 2012 on December 23, 2014, two and a half years after Google provided the government with the requested data. WikiLeaks lawyers argued the warrants were in violation of US federal privacy legislation, “which protects journalists and publishers from being forced to turn over to law enforcement their journalistic work product and documentary materials.” Google said the 2012 warrants were subject to secrecy orders, and they were only able to notify the targets once the gag orders were partially lifted.
Ex-CIA officer Jeffrey Sterling was found guilty this week of leaking classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to NYT reporter James Risen. The quick trial, long delayed by debates over whether or not the Justice Department would force Risen to testify, inevitably took less than two weeks –notably without Risen’s testimony.
Sen. Dianne Feinstein (D-Ca), former head of the Senate Intelligence Committee who spearheaded its report on the CIA’s torture program and publicly accused the CIA of spying on her staff, is damning a recent CIA panel that recommended no punishment of the CIA officers who spied on Senate staffers. The CIA Accountability Board, a taskforce hand-picked by CIA Director John Brennan, “cleared” the officials of any “wrongdoing,” concluding they acted reasonably in the face of a potential security breach. Feinstein, on the other hand, demanded there be accountability for the spying, and outlined 15 flaws with the Board’s findings, including that it contradicts the CIA’s own Inspector General report that found the agency officials improperly monitored Senate staff, and that “The CIA and the Committee exchanged formal, signed letters in 2009 establishing limits on the CIA’s access.”
A small, two pound drone recently made it past the White House radar system and Secret Service before ultimately crashing into a tree. The breach raises questions about the Secret Service’s ability to bring down similar devices, and comes on the heels of several significant White House security breaches. The drone – a “quadcopter” – was flown by an off-duty National Geospatial-Intelligence Agency employee.
Drug Enforcement Agency (DEA) documents recently disclosed through the FOIA to the ACLU reveal news of the second secret DEA program in as many weeks. The latest revelation shows the DEA “has initiated a massive national license plate reader program” that connects DEA license plate readers with local law enforcement agencies’ own plate readers around the country (a 2012 Police Executive Research Forum report found that 71% of all US police departments use automatic license plate tracking). According to one undated document, “there were more than 343 million records in the program’s database at one point,” and Customs and Border Protection (CBP) – a component of the Department of Homeland Security – collects data on “nearly 100 percent of land border traffic” and shares its data with the DEA. The revelation comes one year after the Department of Homeland Security (DHS) scrapped its own plan to build a national license plate tracking system to catch fugitive illegal immigrants after the Washington Post reported the program could “contain more than 1 billion records and could be shared with other law enforcement agencies, raising concerns that the movements of ordinary citizens who are under no criminal suspicion could be scrutinized.”
Last week, a year after President Obama promised changes to the government’s handling of Americans’ electronic communications collected and maintained by the National Security Agency (NSA), the White House abandoned plans for a non-governmental third party to hold the phone metadata collected by the agency. The administration did announce, however, that it is still considering a plan that would allow the telecommunications companies themselves to maintain the records rather than the NSA.
The Obama administration recently declassified two 2007 rulings issued by Judge Roger Vinson in response to an ongoing New York Times FOIA lawsuit. The documents show Vinson, who was then serving on the Foreign Intelligence Surveillance Court (FISA), ruled that the Patriot Act empowered the NSA “to collect foreigners’ emails and phone calls from domestic networks without prior judicial approval.” The rulings also shed light on the agency’s “secret moves” regarding the surveillance prior to Congressional approval in August 2007.
Federal judge John Gleeson of the US District Court in Brooklyn “heard a rare constitutional challenge” last week to the government’s warrantless wiretapping of a US permanent resident who pleaded guilty to terrorism charges in 2012. The Justice Department only revealed it had collected the defendant’s communications without a warrant last year under a new policy that requires such disclosures, prompting Judge Gleeson to rule that the defendant could withdraw his guilty plea.
This week’s #tbt document pick is chosen with the recent sentencing of two former Chilean intelligence officials for the 1973 murders of Americans Frank Teruggi and Charles Horman in mind. Teruggi, a student, and Horman, a journalist and filmmaker, were deemed subversives by the Chilean government and later killed in large part because of a “secret investigation” conducted by Ray Davis, a US Navy Captain commanding the US Military Group in Santiago. Davis was indicted for his role in the murders in 2011 in a Chilean court (the judge also requested Davis’ extradition from Florida where he was believed to be living in a nursing home, but his death in 2013 revealed he had been living secretly in Santiago). Today’s #tbt document picks are the key FBI memos that contain Terrugi’s address and requests for investigation into Terrugi based on his association with a West German political activist that were cited extensively in Davis’ 2011 indictment.