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DOJ Seeks Comments on “Release to One, Release to All” Policy by Dec. 23: FRINFORMSUM 12/15/2016

December 15, 2016

Release to One, Release to All – Law Enforcement Carve-out Citing Mosaic Theory a Slippery Slope

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The Department of Justice is seeking comments on the “Release to One, Release to All” policy prepared by the Office of Information Policy (OIP); the comment period is open through 11:59 PM on December 23.

The draft contains two potential options for the timing of posting FOIA-processed documents: “1) agencies should post documents online as soon as administratively feasible following a release to a requester; or 2) agencies should post documents online as soon as administratively feasible, but only after a delay of five working days following release to a requester, to allow requesters a brief period of time with exclusive access to the requested records.”

The National Security Archive would be happy to see agencies posting documents either immediately or with a brief delay.

The potentially problematic part of the policy, however, is part B – the “good cause” exemptions to posting. The “good cause” exemption, if enacted, would contain a broad carve-out for law enforcement agencies wishing to not publicly release records under the so-called“mosaic theory” argument, in which intelligence agencies argue that someone could collect “seemingly disparate pieces of information and assembl[e] them into a coherent picture” in such a way that would pose a grave damage to national security.  This could become an “any document, any time” excuse for some agencies to avoid their responsibilities under FOIA.

Department of Defense Releases Office of Net Assessment Documents

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The Department of Defense recently posted a batch of 61 documents from Andy Marshall’s Office of Net Assessment (ONA) (the documents begin with “litigation release”). Topics covered include “Axis of Troubles: Male Youth, Factional Politics and Religion,” “Building ‘Hedgehogs’ in the Persian Gulf Region,” and  “Why China Seeks Confrontation with the United States.” ONA was established in 1973 and Marshall served as its director from its inception until early last year; the office looks at a wide variety of significant issues, ranging from “nuclear proliferation, future naval warfare and the use of space,” and hopefully this batch of documents is an indicator that more ONA documents will eventually be made public.

Flynn “Did Not Have Permission” to Share Classified Information, Army Says

Army documents from a 2010 investigation into complaints Michael Flynn inappropriately divulged classified information on Afghanistan with foreign military officials “determined that Flynn did not have permission to share the particular secrets he divulged.” The documents were released to the Washington Post under the FOIA. Flynn was not punished for the disclosure, “after the investigation concluded that he did not act ‘knowingly’ and that ‘there was no actual or potential damage to national security as a result.’”

In an interview with the Post’s Dana Priest that was published on August 15, 2016, Flynn said of the investigation: “I’m proud of that one. Accuse me of sharing intelligence in combat with our closest allies, please.”

A month earlier at the Republican National Convention in July, Flynn condemned Hillary Clinton for her her private email set-up, urging the crowd to “lock her up,” and saying, “If I, a guy who knows this business, if I did a tenth, a tenth of what she did, I would be in jail today.”

First declassified listing of strategic warheads outside Russia in 1991 = 3,429

Newly declassified documents – released to coincide with the 25th anniversary of the Nunn-Lugar Act –  show that the risk of nuclear proliferation at the end of the Soviet Union in 1991 was even greater than publicly known at the time, with 3,429 Soviet strategic warheads scattered outside of Russia in various former Soviet republics. The Nunn-Lugar legislation began a flow of U.S. funding that helped secure the post-Soviet nuclear weapons as well as reduce chemical and biological dangers, with the hands-on cooperation of Russian, Kazakh and American military personnel and scientists. The National Security Archive, in addition to posting ten newly declassified documents helping show just how much cooperative security worked, hosted a 25th reunion this week of dozens of Nunn-Lugar veterans including Russians, Kazakhs, and Americans – including Senators Sam Nunn and Richard Lugar – in the historic Kennedy Caucus Room of the U.S. Senate.

Obama Declassifies Top Secret Intelligence Files on Repression in Argentina

The Obama administration has released a comprehensive CIA report on Operation Condor operations showing that there existed plans to target Amnesty International officials as well as human rights groups, and planned overseas missions in Paris and London . “The basic mission of Condor teams to be sent overseas,” according to the CIA, was “to liquidate top-level terrorist leaders. Non-terrorists also were reportedly candidates for assassination,” the CIA reported in May 1977, and “some leaders of Amnesty Internation[al] were mentioned as targets.”

The secret CIA report is included among more than 500 pages of documents on repression during the military dictatorship in Argentina declassified today by the Obama administration as part of a commitment made by the president last March when he visited Buenos Aires on the 40th anniversary of the military coup.

Among the documents that the National Security Archive identified as newsworthy was a NSC summary of the torture of Alfredo Bravo the president of Argentina’s Permanent Assembly for Human Rights. The report was sent in August 1978 to President Carter’s National Security Advisor, Zbigniew Brzezinski, by his top aide for Latin America, Robert Pastor, who detailed the atrocities the military had committed against Bravo. Pastor reported that Bravo had been “subjected to a bucket treatment where his feet were held in a bucket of ice water until thoroughly chilled and then shoved into a bucket of boiling water.” Bravo had also been subjected to electrical shocks and “subjected to ‘the submarine’—repeatedly being held under water until almost drowned.”

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

The exhumation of La Verbena cemetery in 2010 -- (c) James Rodríguez, mimundo.org

The exhumation of La Verbena cemetery in 2010
— (c) James Rodríguez, mimundo.org

The Guatemalan Forensic Anthropology Foundation (FAFG) has confirmed the identification of one of the victims associated with the notorious “Death Squad Diary,” or Diario Militar, a Guatemalan military document of the disappeared made public in 1999 by the National Security Archive. FAFG unearthed Juan Ramiro Estuardo Orozco López’s remains during its exhumation of ossuaries containing thousands of unidentified corpses at La Verbena cemetery in Guatemala City, and recently identified him by matching his body’s DNA with his family’s. In 1999, the Historical Clarification Commission concluded that some 200,000 civilians lost their lives during Guatemala’s civil conflict, among them 40,000 disappeared by state security forces. The National Security Archive continues its forensic archival work to find evidence of the fate and whereabouts of the disappeared, as well as to hold the Guatemalan state responsible for kidnapping and killing them.

TBT – U.S. Nuclear Terrorism Exercise Leaves Indianapolis in “Ruins”

Today’s #tbt pick is a 2012 posting on Mighty Derringer – a secret exercise by a U.S. government counter-terrorist unit that uncovered a host of potential problems associated with disrupting a nuclear terrorist plot in the United States. The posting contains almost 70 declassified documents and is notable for being the first publication of documents that provide in-depth exposure into all aspects of such an exercise – including the state-of-play at key points and the array of issues involved in disabling terrorist devices.

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Happy FOIA-ing!

 

New Identification of Guatemala’s Disappeared

December 13, 2016
"The exhumation of La Verbena cemetery in 2010" -- (c) James Rodríguez, mimundo.org

The exhumation of La Verbena cemetery in 2010 — (c) James Rodríguez, mimundo.org

The Guatemalan Forensic Anthropology Foundation (FAFG) has confirmed the identification of one of the victims associated with the notorious “Death Squad Diary,” or Diario Militar, a Guatemalan military document of the disappeared made public in 1999 by the National Security Archive. FAFG unearthed Juan Ramiro Estuardo Orozco López’s remains during its exhumation of ossuaries containing thousands of unidentified corpses at La Verbena cemetery in Guatemala City, and recently identified him by matching his body’s DNA with his family’s.

The Diario indicates that Orozco López, the second person captured by Guatemalan military intelligence in operations described in the document, was killed in Guatemala City on August 31, 1983, as he tried to flee his attackers. According to his entry, Orozco was an electrical engineer charged with radio interference for the Revolutionary Organization of People in Arms (ORPA), one of four principal insurgent groups that sought to overthrow the Guatemala government during the height of the country’s 36-year armed civil conflict.

"Orozco's entry in the Guatemalan Death Squad Diary" -- Courtesy National Security Archive

Orozco’s entry in the Guatemalan Death Squad Diary
— Courtesy National Security Archive

Although the Diario Militar says he was shot down in the street, his killers disappeared his body, and his family knew nothing of his whereabouts until FAFG’s findings.

As part of its ongoing work to expose human rights violations committed during the conflict, FAFG undertook the exhumation at La Verbena cemetery in 2010 and launched a national campaign called “My Name Is Not John Doe” (Mi Nombre No Es XX) to convince relatives of the disappeared to provide the Foundation with DNA samples.

According to an email from José Suasnavar, FAFG’s deputy director, the exhumation of La Verbena and analysis of the bones is completed, but genetic analysis of some 15,000 DNA samples taken from bodies continues. The cemetery’s mass burying sites contained a mixture of corpses placed there when families were no longer able to pay for their graves, and bodies that were dumped anonymously. “With the identification of these individuals, we are getting closer to a level of the ossuary that may contain a greater quantity of remains buried as XX inside the cemetery,” said Suasnavar.

Orozco now becomes the 8th victim of the brutal campaign to hunt down, secretly imprison, torture, and kill suspected subversives in Guatemala documented by the Diario Militar during 1983-85.  The first victims of the Diario to be identified by FAFG, in November 2011, were Amancio Samuel Villatoro and Sergio Saúl Linares Morales. Their skeletal remains had been exhumed at a former army detachment in Comalapa, Chimaltenango, in 2003. Another four victims, whose remains were found in the same at the same site, were identified in March 2012: Juan de Dios Samayoa Velásquez, Hugo Navarro Mérida, Moisés Saravia López, and a fourth whose identity has not been publicly disclosed.

"Hernández Cusanero's entry in the Guatemalan Death Squad Diary" -- Courtesy National Security Archive

Hernández Cusanero’s entry in the Guatemalan Death Squad Diary
— Courtesy National Security Archive

Along with FAFG’s identification of Orozco, the ID in 2015 of José Zenon Hernández Cusanero – the seventh person among 183 men and women victims of the Military Diary to be restored to his family – affirmed the importance of documents in the fight for justice in Guatemala, denying again the military’s attempt to erase an individual and a history.

In 1999, the Historical Clarification Commission concluded that some 200,000 civilians lost their lives during Guatemala’s civil conflict, among them 40,000 disappeared by state security forces. The National Security Archive continues its forensic archival work to find evidence of the fate and whereabouts of the disappeared, as well as to hold the Guatemalan state responsible for kidnapping and killing them.

“Critical Security Failures” ID’d in Ohio Electronic Voting Systems in 2007: FRINFORMSUM 12/8/2016

December 8, 2016

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Untrustworthy Elections

A 2007 Ohio Secretary of State review to assess the security of electronic voting systems used in the state discovered that “all of the studied systems possess critical security failures that render their technical controls insufficient to guarantee a trustworthy election.” The 300-plus page review was one of the dozen new documents that was posted in the National Security Archive’s Cyber Vault on Wednesday, December 7. The review highlights four areas of primary concern: a uniform failure to “adequately address important threats against election data and processes;” improper use of implementation of security technology; lack of trustworthy auditing capabilities; and “deeply flawed” software maintenance practices.  The rest of this week’s updates can be read here.

Tom Blanton Testifies Before House on Overclassification

National Security Archive director Tom Blanton testified this week on the “arbitrary and capricious classification system” before the House Oversight and Government Reform Committee. The entire written testimony is a must-read, and the video of Blanton’s testimony – along with expert testimony from the Federation of American Scientists’ Steve Aftergood, Project on Government Oversight’s Scott Amey, and former ISOO Director William Leonard – can be found here. The main takeaway? The problem is “an arbitrary and capricious classification system that lacks internal and external credibility and contains too many secrets. This system shields government misconduct, obstructs Congressional and public oversight, retards scientific progress, and cedes enormous power to its enforcers, the securocrats.  It’s time to write a law that reduces government secrecy.”

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Blanton also recently visited with PBS’s The Open Mind to discuss the 50th anniversary of the Freedom of Information Act, declassifying the presidency, and more. Go here to watch the entire 30-minute interview.

Three Steps to Improve Classification and Declassification System

National Security Archive FOIA Project Director Nate Jones presented three tangible steps that could be taken to fix the classification and declassification system today before the Public Interest Declassification Board. Jones, echoing some of Tom Blanton’s House testimony, urged the Board to: further improve the efficiency of the National Declassification Center and expand its authority; fully realize the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document; and “get into the declassification business.”

Jones was joined by Steve Aftergood, the Brennan Center’s Liza Goitein, and Patrice McDetmott of OpenTheGovernment.org. All of their White Papers can be found on the PIDB’s blog, Transforming Classification.

The National Declassification Center’s Sheryl Shenberger also presented, commenting that the NDC should, among other things, be given more declassification authority, particularly of historical records. Her comments do not appear on PIDB’s blog – but it would be useful if they were added alongside Jones’s and others.

Internet Archive Publishes NSL

The Internet Archive, a nonprofit digital library of 279 billion (and counting) webpages, including “irreplaceable webpages that have been erased elsewhere,” recently announced its plan to set up a mirror repository in Canada, citing concerns of increased government surveillance under a Trump administration.

The announcement comes on the heels of an “unqualified success” for the Internet Archive. IA fought back against a gag order contained in one of the FBI’s infamous National Security Letters (a 2013 District Court ruling found the everlasting gag orders unconstitutional) directly in a letter to the FBI that challenged the letter’s legal and constitutional validity. The FBI backed down, and the Internet Archive posted the letter.

Food Stamp Benefit Info

U.S. District Judge Karen Schreier recently ruled against the Department of Agriculture and its invocation of FOIA exemption 4 (trade secrets) to hide information on “the Supplemental Nutrition Assistance Program – SNAP, formerly known as food stamps.” A South Dakoka newspaper went to court in 2011 after it was denied the records, and, 5 years later, the court sided with the paper. Judge Schreier ruled, “This information includes a store’s location, layout, pricing, product selection, and customer traffic. … while SNAP information may provide some insight into a store’s overall financial health, the data is a small piece in a much larger picture—disclosure would have a nominal effect on competition in the grocery industry.”

House Bill Requires Declassification Review of Intel Reports on transferred Guantanamo Detainees

The House recently passed a bipartisan intelligence policy bill that calls for an interagency panel on “Russian attempts to “exert covert influence over peoples and governments.” The bill “also updates whistleblowing procedures in the intelligence community. And it requires a declassification review of intelligence reports on detainees transferred out of the military prison at Guantanamo Bay by both Presidents Barack Obama and George W. Bush.”

Soviet Response “Unparalleled in Scale”

A National Security Archive posting this week, reinforcing a new book by Nate Jones, reveals that NATO war game Able Archer 83 simulated nuclear launch procedures so realistically that it triggered a Warsaw Pact response “unparalleled in scale” and risked actual nuclear war. This high-level review “strongly suggest[ed]” to its authors, the President’s Foreign Intelligence Advisory Board, “that Soviet Military leaders may have been seriously concerned that the U.S. would use Able Archer 83 as a cover for launching a real attack” and that “some Soviet forces were preparing to pre-empt or counterattack a NATO strike launched under cover of Able Archer.” Now available to purchase, Able Archer 83, tells the story of this dangerous nuclear exercise, the generals who ran it, and the American and Soviet leaders it affected, through a selection of declassified documents pried from U.S. and British agencies and archives, as well as formerly secret Soviet Politburo, KGB, and other Eastern Bloc files.

FOIA @ 250

250 years ago, two centuries before the United States enacted the FOIA, the Swedish Parliament passed the Ordinance on Freedom of Writing and of the Press, the world’s first law requiring “publicity for official documents.” The Finnish-Swedish enlightenment thinker and politician Anders Chydenius was the champion of this 18th century open records law. “Historians cannot trace a direct line from Sweden’s 1766 law to the U.S. law of 1966, but the Swedish and Finnish idea of publicity for official documents percolated through the 19th century movement in the U.S. that changed common law notions – that requesters had to demonstrate a need to know before they could get government records – into the right to know, now recognized as a fundamental human right,” said Archive director Tom Blanton. The National Security Archive’s commemorative posting can be found here.

John Negroponte speaks at his swearing in ceremony as new U.S. Ambassador to Iraq on June 23, 2004. (Source: U.S. State Department)

John Negroponte speaks at his swearing in ceremony as new U.S. Ambassador to Iraq on June 23, 2004. (Source: U.S. State Department)

TBT pick – The Negroponte File

This week’s #TBT pick is the Negroponte File. Originally posted in 2005, it contains “392 cables and memos [that] record Negroponte’s daily, and even hourly, activities as the powerful Ambassador to Honduras during the contra war in the early 1980s. They include dozens of cables in which the Ambassador sought to undermine regional peace efforts such as the Contadora initiative that ultimately won Costa Rican president Oscar Arias a Nobel Prize, as well as multiple reports of meetings and conversations with Honduran military officers who were instrumental in providing logistical support and infrastructure for CIA covert operations in support of the contras against Nicaragua –‘our special project’ as Negroponte refers to the contra war in the cable traffic.”

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Happy FOIA-ing!

 

“There’s classified, and then there’s classified”: Tangible Steps to Fix the Classification and Declassification System

December 7, 2016

pidb

These comments will be presented to the Public Interest Declassification Board for its December 8 meeting and were initially published on the PIDB’s blog, Transforming Classification

The former head of the Information Security Oversight Office, responsible for oversight of the US classification system, has acknowledged that classification officials joke that “you could easily classify the ham sandwich.”  Barack Obama has summarized the tension between the public’s right to know and the necessity for the government to keep some secrets as: There’s classified, and then there’s classified.  Certainly, much work remains for the Public Interest Declassification Board to meet its goal of “modernizing the national security classification and declassification systems.”  Here I suggest three achievable measures that the next Executive Order on Classification could take to reduce over-classification, improve declassification, and begin to rebuild the public’s trust that documents stamped as “secret” actually contain information that should be withheld from the public.

PIDB2First, the next Executive Order should further improve the efficiency of the National Declassification Center and expand its authority.  The NDC has eliminated much—though certainly not all—of the National Archives’ backlog of historic documents.  Its “indexing on demand” program serves as a quick and efficient mechanism for researchers to request and usually receive previously classified records.  But further improvements are needed for the NDC to achieve its mission of “releasing all we can, protecting what we must.”  It must completely end its “pass fail” reviews where a single classified word in a document can cause it to “go to the back of the vault” and remain classified indefinitely.  It must also stop allowing multiple re-reviews by multiple agencies of historic documents.  The NDC should also, once again, adhere to the principle of automatic declassification; this principle, established in the current Executive Order but not practiced, requires documents to be declassified without a review when they reach a certain age.  This is the only workable solution to the coming exponential avalanche of digital historic records.  The PIDB has correctly called these malpractices as “wasteful, expensive,“ and “unsustainable.”  Fortunately, the NDC has taken note and begun to remedy them.

Once these inefficiencies are modified and the NDC is solidified as the government’s premier, most efficient declassification mechanism, it should expand to target not just classified documents accessioned to NARA but also those held by the Presidential Libraries. Declassifying documents held by the Presidential Libraries is the bureaucratic equivalent to passing a kidney stone.  For a member of the public to even see what is in the Library’s boxes a researcher must submit a Freedom of Information Act request (which usually takes years to process).  Even worse, any document that has ever been deemed classified is not even reviewed during this process and the researcher must submit a second Mandatory Declassification Review request (which again usually takes years), before possibly having the ability to access this critical history (even then, if it has been censored by an overzealous redactor, the MDR appeal process, again, usually takes years).1 If the incoming administration is able to utilize the strength of the National Declassification Center to declassify all declassifiable material held by the Presidential Libraries, it will be an extremely beneficial accomplishment.

Second, the incoming administration’s Executive Order on Classification should finally fully realize the Moynihan Commission’s finding that “the cost of protection, vulnerability, threat, risk, value of the information, and public benefit from release” must be considered when deciding whether or not to classify or declassify any document.  This means that no sets of information—including any agency’s operational files—should be automatically exempted from declassification review.  The US government once used this specious claim to attempt to thwart the release of any President’s Daily Brief, ever.  Fortunately, under the current administration the Central Intelligence Agency and National Archives reversed course and released the PDBs from the Johnson and Nixon administrations —though many still have far too many redactions.  Unfortunately, agencies including the CIA continue to ignore the current Executive Order’s instruction that “No information may remain classified indefinitely” and refuse to even review other historically important operational files for release.

The current Executive Order also includes a provision which states that in “exceptional circumstances” an agency head may declassify “properly classified” information when she deems that “the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”  The language in the next Executive Order should be modified so that this common sense logic applies to all classification and declassification decisions, not merely “exceptional circumstances.”  While the fact that President Kennedy agreed to remove Jupiter Missiles from Turkey to end the Cuban Missile Crisis may be technically “properly classified,” it is not a justifiable secret to keep from the public —and greatly harms the government’s ability to keep its true secrets.

When the Defense Department released document 2 in September 2013 it withheld the references to Turkey from the section concerning Nikita Khrushchev's public message to President Kennedy on 27 October 1962 suggesting a trade of U.S. missiles in Turkey for the Soviet missiles in Cuba. In its 2009 appeal letter to the Defense Department the Archive pointed out that Khrushchev message's was in the public record, but the Pentagon maintained the deletions.

When the Defense Department released document 2 in September 2013 it withheld the references to Turkey from the section concerning Nikita Khrushchev’s public message to President Kennedy on 27 October 1962 suggesting a trade of U.S. missiles in Turkey for the Soviet missiles in Cuba. In its 2009 appeal letter to the Defense Department the Archive pointed out that Khrushchev message’s was in the public record, but the Pentagon maintained the deletions.

Finally, the Public Interest Declassification Board should get into the declassification business.  The Board has done much good work by issuing guidance and recommendations, providing a forum for public insight, and improving classification and declassification from the inside.  But it has done little to actually declassify documents.  The next Executive Order on Classification –or if necessary, legislation– should empower the PIDB get its hands dirty.  The PIDB should have the authority to compel the NDC or another body to declassify the documents, including those referenced in this piece, that it deems in the public interest —there are trillions of them.


1. In one startling case, it took the National Security Archive 12 years to win the release of a document held by the George H. W. Bush Presidential Library. See http://nsarchive.gwu.edu/NSAEBB/NSAEBB427/ footnote 12.

National Security Archive Director Tom Blanton Testifies Today on “Arbitrary and Capricious Classification System”

December 7, 2016

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This morning the Archive’s Executive Director, Tom Blanton, is testifying before the House Oversight and Government Reform Committee for its hearing on “Examining the Costs of Over-classification on Transparency and Security.” Below is a copy of Blanton’s “must read” testimony.

Testimony of Thomas Blanton, Director, National Security Archive, George Washington University  

Before the Committee on Oversight and Government Reform,

U.S. House of Representatives 

Hearing: Examining the Costs of Over-classification on Transparency and Security

Wednesday, December 7, 2016

Rayburn House Office Building, Room 2154, 9 a.m.

Chairman Chaffetz, Ranking Member Cummings, distinguished members of the Committee, it is an honor to be invited to testify today before this Committee, which provided so much leadership for the passage this year of the Freedom of Information Act amendments, signed into law by President Obama on June 30.

Already your far-sighted reforms have driven real change in the bureaucracy.  For example, the CIA finally had to release their internal draft history of the Bay of Pigs disaster, revealing – horrors! – that the Agency suffered a nasty internal power struggle afterwards – hardly a national security secret, just bureaucratic “dirty linen,” as the suppressed history remarked.  The 25-year sunset you imposed on bureaucratic drafts, on agency deliberative process, the 5th exemption to the FOIA, really works.  Thank you!

bopt

That success, the 25-year rule, and your whole legislative approach to reforming FOIA, needs to be applied here today, to the classification system.  It’s time for Congress to step up to its Constitutional Article I responsibilities and write a law to govern an out-of-control, dysfunctional, counter-productive classification system.  Until now, you’ve pretty much left it to the Article II folks, who claimed as much power as they could get away with in the name of the Commander-in-Chief.

A law to govern classification – that was the number one recommendation of the Moynihan Commission 20 years ago.  They asked me to testify back then, and I’m sorry to report today that most of what they recommended never happened.  It is worth looking back in order to look forward.

That Moynihan Commission was quite an effort.  The formal title was “The Commission on Protecting and Reducing Government Secrecy” – some people saw that as contradictory, protecting and reducing, but I believe this is just the common sense notion that the only way you can truly protect the real secrets is by releasing the non-secrets.  The Commission report quoted Justice Potter Stewart in the Pentagon Papers case, saying “when everything is classified, then nothing is classified.”  My own metaphor at the time was:  We have low fences around vast prairies of classified information, when what we need is high fences around small graveyards of what could really hurt us.

I’m here today to tell you, we’re still stringing two strands of barbed wire around the prairies.  To compound the problem, we’re deploying our armored cars to go round up unclassified emails like Hillary’s, instead of focusing on the real hazards, like the millions of hacked security clearance files at the Office of Personnel Management.  I’ll come back to that point, about priorities, about whether you can believe anything a securocrat tells you about what’s classified (you can tell from the outset that I’m a skeptic).  But let’s start with the lessons from the Moynihan Commission.

The Moynihan Commission came up with unanimous bipartisan recommendations – and not just the usual suspects – not only Pat Moynihan, Democrat of New York, but also Jesse Helms, Republican of North Carolina, John Podesta of Washington D.C., and Larry Combest of Lubbock, Texas, then the Republican chair of the House Intelligence Committee.  Among others.

The Moynihan Commission reported a range of findings about how much over-classification there was.  From insiders administering the classification system, they received testimony that the problem was only a 5-to-10-per-cent overage.  But the final report treated with far more credence the estimate from President Reagan’s top National Security Council staffer, Rodney B. McDaniel, that only 10 per cent of classification was for “legitimate protection of secrets.”  (Commission report, p. 36).  That is, 90% over-classification.

My own experience at the National Security Archive, with more than 50,000 Freedom of Information Act requests over 30 years, and millions of pages of declassified documents, tells me that McDaniel is especially on target with his 90% when it comes to historical records.  For more current information, you can’t get a more informed and independent view than from the head of the 9/11 Commission, Republican Governor Tom Kean.  Kean was looking at all the intelligence on the 9/11 attacks, all the signals intercepts and CIA assessments of Al Qaeda, and commented publicly that too much secrecy had been part of the problem that left our country vulnerable: “Three quarters of what I read that was classified should not have been.” (Cox News Service, July 21, 2004)  So 75% over-classification on very current national security information.

hmo

The Moynihan Commission was greatly impressed with the costs of secrecy – not so much the dollar costs, however substantial, but the detriment to open research that would keep the United States ahead of the rest of the world technologically.  A central theme of the Moynihan report concerns the ways classification retards scientific and technical progress by compartmenting information and stifling the scientific method.  One 1970 study organized by scientists and cited by the Commission even suggested that “more might be gained than lost” if the U.S. unilaterally adopted “a policy of complete openness in all areas of information,” but given existing realities, recommended a 5-year sunset on scientific and technical classification.  In effect, the Moynihan Commission attributed the American national security advantage to our society’s open flow of information, rather than the potential development of thicker vaults to rival the Kremlin’s.

That finding is still true today.  No less an authority than former Los Alamos Laboratory director Siegfried Hecker describes in his latest book, Doomed to Cooperate (p. 402), how excessive secrecy and compartmentalization actually produces a “negative impact on nuclear weapons stewardship.”  Hecker criticizes government “overreaction” to allegations of security breaches, ramping up security at the expense of the research environment in ways that have “undermined the effectiveness of the labs.”

After extensive hearings, the Moynihan Commission concluded that our secrecy system was broken and needed a statute to fix it.  That law would mandate changes to the thought process around making the initial classification decision.  The classifiers should have to consider the public interest in release, the cost-benefit ratio, the actual vulnerability of the information, the long-term cost of keeping the secret, and not just whether it might damage national security, but all the other factors including the benefit from disclosure.

Key to the new statute would be a new concept of a “life cycle” for secrets.  Restrain the decision on the front end so you have fewer to start with.  Continuously push the unneeded secrets out of the system so they don’t stack up and gum up the information flows you need in any efficient decision-making process.  Minimize the amount you keep for the long haul, by using sunsets like the 25-year-rule and automated processes for release.

I have to say, this was especially prescient.  The World Wide Web was only a couple of years old at the time of the Moynihan Commission report (1997).  Google was still a year away from even launching.  But already electronic systems were proliferating documents at a rate the old carbon-copy secretaries would never have imagined.  What we now know is no matter how far you reduce the number of “original classification authorities” and no matter how far you bring down the number of “original classification” decisions, the capacity of computer systems to produce infinite copies means that the classified universe is expanding faster than the Big Bang.  That means the costs keep going up – $16 billion plus in the last fiscal year – and even more of a problem, the declassifiers will never catch up.  That’s why we need a statute that puts some automatic sunsets into the mix:  no more page-by-page reviews, if a document is in a certain category, it’s public after 10 years or 25 years.

The bureaucracy will object.  They’ll say every document has to be reviewed in case there’s a Social Security number in there, or a phone number, or other data protected by the Privacy Act.  But this is a formula for perpetual backlogs, a system that chokes on its old secrets, and of course, full employment for retirees doing the reviews.  Instead, we need to apply computing power to search and sort and protect privacy – standard formats like SSNs and phone numbers should be the easiest for automation to deal with.

The Moynihan Commission also recommended creating a central office to run classification policy.  They found all kinds of confusion and bureaucratic tussling between the Security Policy Board and the Information Security Oversight Office.  Frankly, as an outsider, I didn’t see this issue nearly as interesting as the bureaucrats found it.  But what we ended up with, as a combination of the Commission’s attention to this problem, and the 1995 Executive Order that set up an appeals process for mandatory declassification review requests, was an interagency panel that has been a rousing success – not least as a result of its staffing from the ISOO.

This is the Interagency Security Classification Appeals Panel – or Icecap as we call it.  The Panel has overruled the agencies in favor of requesters more than 70% of the time – yet another hard data point about over-classification.  Turns out that simply moving the decision about declassification out of the hands of the original agency makes a huge difference, even when the originators still have a say.  Yet, as useful as the Panel’s decisions have been, we’ve seen little evidence that the bureaucracy has learned anything from them.  We have to keep going back to the Panel, and the backlog there keeps growing, with some cases dating back a whole decade.

In my Moynihan testimony 20 years ago, I highlighted the huge successes in declassification that Congressional statutes had accomplished in creating the Nazi War Crimes board and the Kennedy Assassination Records Board – those two reviews combined to compel the release of tens of millions of pages of historically valuable records that would have otherwise remained secret indefinitely.  Without these statutes, we would never have seen the CIA’s file on Adolf Eichmann, or on Eichmann’s deputy whom the CIA recruited after the war and installed as a well-paid vice president at Proctor&Gamble in Cincinnati.  These records were technically still classified, but the Congress made a finding in law that the public and historical interest outweighed the bureaucratic factors.  We need such a finding across the board on classification, in statute, with an oversight board that can order openness and re-balance the secrecy teeter-totter.

But instead of a government-wide Declassification Board that could break the logjam on whole series of historical files, we got the limited ISCAP handling only mandatory review appeals (and only a few hundred of them, usually for individual documents), authorized by Executive Order rather than statute.

Congress did legislate an advisory function in this arena, the Public Interest Declassification Board.  The Pidib (as we call it) has become a helpful and responsive sounding board, producing useful recommendations, and even weighing in on some priority declassifications; but it is not the kind of drag-the-quarry-back-to-the-cave operation we need, or that the JFK and Nazi war crimes boards provided.

The statute you write needs to combine the ISCAP and the PIDB, by adding outside blue-ribbon nominees to an inter-agency panel of insiders, and giving the new body the power to overrule agencies and order the release of batches of documents.  The new body should turn its decisions into binding guidance on the agencies.  Such guidance is desperately needed.

The Moynihan Commission recommended that the CIA Director produce a new directive that would only withhold sources-and-methods information if there was a demonstrable harm from release, not just any and every method.  Such a directive has never happened, and there’s hardly a CIA Director born who would ever give away power so cavalierly.  So Congress has to do it, put this recommendation into the statute, there has to be demonstrable harm from the release of the source/method or else it can’t be withheld.

Instead of a rational cost-benefit approach, however, the last 20 years have only demonstrated the CIA’s burka approach to redaction.  Look at the President’s Daily Briefs that the CIA produced for Presidents Kennedy and Johnson and finally declassified (partly) last year.  We had gone to court to get the Briefs released for their historical value, but the CIA opposed us on the grounds that the very document itself was an intelligence method.  After the courts finished laughing at this, they allowed the CIA to withhold the two Briefs we had asked for (from Lyndon Johnson’s presidency), but denied the CIA’s claim for a “per se” exemption for all the Briefs.

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With some pushing from the CIA’s own historical advisory group, the CIA finally started releasing the Briefs last year, even though many looked like Swiss cheese from the redactions.  One white blotch seemed familiar – the claim was “sources and methods” – but we already had a copy we had used in the lawsuit, found at the LBJ Library before the CIA began its absolutist claim.  That censored paragraph?  Our other copy showed the redacted source was our United Nations mission quoting foreign officials in New York.

What’s the secret?  My guess is that the CIA doesn’t want us to know that sometimes somebody in the State Department can actually come up with useful information.

Another major Moynihan Commission recommendation focused on centralizing declassification in a National Declassification Center.  This took about 10 years to see the light of day (that’s one measure of bureaucratic resistance).

The NDC does exist, and cranks out the low-hanging fruit from the classified trees, but it has little power over the agencies, and continues to pursue a hugely wasteful approach where one classified word can keep a document denied from release, and send it into the pile that has to be re-reviewed down the road.  That pile has taken on Jack-and-the-Beanstalk proportions.  Here the Moynihan Commission apparently bowed to the wishes of CIA director John Deutch and said the NDC “would not supersede agency control” over declassification decisions.  A decade of real experience shows that if NDC keeps avoiding any superseding, the backlog of historical classified records will overwhelm the system, especially with the tsunami of electronic records already in the pipeline.

We need to draw a line at least on the historical records – after 25 years, agencies have to turn over to the NDC the authority to declassify, and if the agencies want to keep a hand in, they have to put in real funding and real detailees into the NDC process.  Even so, the NDC should make the decision, not the cold dead hands of the bureaucracy.

Which step ensures improper withholdings are not occurring. (Hint: none.)

Which step ensures improper withholdings are not occurring. (Hint: none.)

This is especially true at the Presidential Libraries, where the process to open records is excruciatingly slow.  My organization obtained Mikhail Gorbachev’s transcript of his Malta summit with President George H.W. Bush two decades before the Bush Library was able to declassify the American version.  Now, 25 years after the end of the Soviet Union, we’re finally able to publish all the summit conversations between Gorbachev, Reagan, and Bush – and the American side, not the Russian side, was responsible for almost all the delay.  At the Presidential Libraries, a researcher has to file a Freedom of Information request just to get a group of files “accessioned,” which can take years, and then come back to the library, go through the boxes full of withdrawal sheets listing still-classified documents, and file individual Mandatory Declassification Review requests for those, which takes more years.  The National Declassification Center should be a geyser of Presidential records, centralizing the review, saving time and money.  A new statute on classification could make it so.

As for the other Moynihan Commission recommendations on areas like standardizing security clearance procedures, I can’t speak to those.  Not my expertise.  I’ve never had a clearance, and I don’t want one.  I remember the late 18-term Congressman George Brown, who saw the commercial potential in spy satellites (we take it for granted today in our traffic apps and Google maps), but the securocrats prohibited him even from talking about the possibility, so he resigned from the House intelligence committee so he wouldn’t be bound and gagged.

Well, that’s what a single securocrat can do today.  Bind and gag by claiming classification.  Other officials with equal or more seniority and expertise may well disagree, but all it takes is one securocrat and the whole system grinds to a halt.

Let me show you our latest example.  At the National Security Archive, we’re hardly even surprised any more.  We’ve been publishing these compilations called “Dubious Secrets” on our Web site for more than a decade now – side-by-side examples of different versions of the very same document, one section blacked-out here, but left in full over there.  Sometimes the documents have almost mirror image redactions, so when you slide them together you get the whole text.

In other words, I’m about to show you some documents that senior government authorities with the power to say so insist are classified.  Yet at the same time, these very same documents have been declassified by senior government authorities also with the power to say so.  All of which is to say, don’t believe them until you see for yourself.  Always ask, where’s the damage?

Here’s a document still classified, you can see all the black blotches, this was a decision just a month ago, in November.  The Joint Staff at the Pentagon deemed this document very sensitive, even though it dated all the way back to 1986, 30 years ago, and it was about the Soviet Union, a country that no longer exists.  But the document looked familiar.  Our expert on the topic, Dr. Bill Burr, thought he’d seen that headline and title before, and he poked around in our files.  Sure enough, back in 2010, the Headquarters staff at the Pentagon had declassified this document from a copy in another file.  In full.

So now we can read from six years ago the text that the Joint Staff thinks, right now today, is really sensitive, classified, worth spending taxpayers’ dollars on protecting, can’t be looked at by you or us in any public setting.  And what’s in there?  Just the Joint Chiefs’ comments on a draft presidential directive for our mid-1980s strategy against the Soviet Union.  No weapons systems design.  No intelligence assets.  It’s a waste of the Committee’s time even to read this out loud.

That made us go back to the cover letter on this document, this November.  In there, the Pentagon tells us that neither OSD (Office of the Secretary of Defense) nor NSC (National Security Council) had any objection to declassification in full, but a single securocrat, Mr. Mark Patrick of the Joint Staff Information Management Division, decided to exercise his Sharpie, or his computerized black-out system. What a travesty of national security.

Two versions of the same page of White House e-mail, addressed to then deputy national security adviser Colin Powell. The reviewer classified the deletions each time at the Secret level, meaning he believed their release would cause "serious damage" to U.S. national security.

Two versions of the same page of White House e-mail, addressed to then deputy national security adviser Colin Powell. The reviewer classified the deletions each time at the Secret level, meaning he believed their release would cause “serious damage” to U.S. national security.

It gets worse.  At least with the Joint Staff example, it’s one office against another.  But consider this piece of White House e-mail, originally sent to Colin Powell because he had missed the meeting.  The declassification review, going through several thousand White House e-mails, looked at the version from Powell’s user area first, and blacked out chunks from the middle section.  A little over a week later, the review dealt with the sender’s copy, as written by the meeting note taker.  This time, the top and bottom sections were whacked.  Classified SECRET, meaning there would be serious damage to our national security if released.  Except they were already released and there was no damage.

We found out the punch line once both versions arrived and we put them together.  The same person did the review both times – a highly experienced reviewer with TS/SCI clearances.  He told me later there must’ve been something in the Washington Post the first time around that made Egypt and military aid seem sensitive, and the second time around he had forgotten the document and the only news stories were on the Iran-contra arms deals, so he blacked that out.

Fast forward from this piece of Colin Powell e-mail from the 1980s to February of this year, when somebody in the inspector-general line of work grabbed two of Colin Powell’s e-mails from the account he had on the State Department unclassified system (his main account was with AOL.com) and deemed them classified.  When reporters called Powell for comment, the former 4-star general, Presidential national security adviser, chairman of the Joint Chiefs, and secretary of state described the messages as “fairly minor” notes from ambassadors, and remarked, “I do not see what makes them classified.”  Later, Powell told NBC News (February 4, 2016), “I wish they would release them, so that a normal, air-breathing mammal would look at them and say, ‘What’s the issue?’”

That’s what we’ll ask when the purportedly classified Hillary e-mails ever see the light of day.  When we actually get to read the declassified versions of those 110 or so messages in 52 chains, my bet is we’ll find that those 8 chains supposedly containing TOP SECRET information started with newspaper stories, like the one in the New York Times about drone strikes in Waziristan in 2011 while the then-chair of the Senate Foreign Relations Committee was visiting Pakistan – and neither he nor the ambassador Cameron Munter apparently were informed ahead of time.  So millions of Americans can read the newspaper story and talk about it over the breakfast table or around the office water cooler, but not the Secretary of State.  The CIA has effectively extended its capriciously high classification level covering the drone program, which was anything but secret even in 2011, to constrain the most basic diplomatic discussion of what’s in the newspaper that day.

Already, one of the Hillary e-mails now classified at the SECRET level has emerged with enough metadata (the date and the To/From/Subject lines) to check with the author, Dennis Ross, a veteran of three decades at State and the National Security Council in highest-level negotiations and highest-level security clearances.  Ross had emailed the Secretary of State in September 2012 with unclassified thoughts about the back-channel talks between the Israelis and the Palestinians.  Ross told the New York Times (February 13, 2016) that nothing about the discussion should be classified, “It shows the arbitrariness of what is now being classified.”

That’s the problem:  an arbitrary and capricious classification system that lacks internal and external credibility and contains too many secrets.  This system shields government misconduct, obstructs Congressional and public oversight, retards scientific progress, and cedes enormous power to its enforcers, the securocrats.  It’s time to write a law that reduces government secrecy.  Thank you for your attention and I look forward to your questions.

 

Archive Director Tom Blanton during his first appearance on The Colbert Report in 2010.

Archive Director Tom Blanton during his first appearance on The Colbert Report in 2010.

Tom Blanton is the director since 1992 of the independent non-governmental National Security Archive at George Washington University (www.nsarchive.org), which won the George Polk Award in 2000 for “piercing self-serving veils of government secrecy.”  He was the Archive’s first Research Director starting in 1986, and he has also served as the Henry M. Jackson Lecturer at Whitman College, the Lazerow Lecturer at Long Island University, and the Henderson Lecturer at the University of North Carolina at Chapel Hill.  Educated at Harvard University, he is series editor for the Archive’s online and book publications of more than a million pages of declassified U.S. government documents obtained through the Archive’s more than 50,000 Freedom of Information Act requests.  His articles have appeared in Diplomatic HistoryForeign PolicyWilson Quarterly, and the Cold War International History Project Bulletin, among other journals, as well as The New York Times, Washington Post, Boston Globe, Wall Street Journal, Los Angeles Times, and other newspapers.  His new book is The Last Superpower Summits: Gorbachev, Reagan, and Bush: Conversations that Ended the Cold War (New York/Budapest: CEU Press, 2016, with Svetlana Savranskaya).  Other books include “Masterpieces of History”: The Peaceful End of the Cold War in Europe 1989 (New York/Budapest: CEU Press, 2010, with Svetlana Savranskaya and Vladislav Zubok), which won the Link-Kuehl Prize for documentary editing from the Society for Historians of American Foreign Relations; The Chronology (New York: Warner Books, 1987) on the Iran-contra scandal; and White House E-Mail (New York: New Press, 1995) on the landmark lawsuit that saved over 220 million records from Reagan through Obama.  His honors include the Emmy Award (2005) for individual achievement in news and documentary research, the Jean Mayer Global Citizenship Award (2011) from Tufts University, Harvard University’s Newcomen Prize in History (1979), and the American Library Association’s James Madison Award Citation (1995) for “defending the public’s right to know.”  The National Security Archive receives no government funding or contracts, and instead relies on publication royalties and donations from individuals and foundations for its $3 million annual budget.

 

Chiquita’s Terrorist Funding, Bureau of Prisons Admits CIA Afghanistan Prison Visit, and More: FRINFORMSUM 12/2/2016

December 2, 2016
March 2000 notes of Chiquita Senior Counsel Robert Thomas indicate awareness that payments were for security services.

March 2000 notes of Chiquita Senior Counsel Robert Thomas indicate awareness that payments were for security services.

Chiquita Terrorist Funding

A federal judge in Florida ruled that “victims of Colombian paramilitary death squads funded by Chiquita” have a right to have their case heard in the United States rather than Colombia, “clearing the way for the historic case to advance toward trial.” The ruling comes nearly a decade after Chiquita pled guilty in 2007 to charges of “engaging in unauthorized transactions” with the United Self-Defense Forces of Colombia (AUC), which was designated a global terrorist organization by the US State Department in 2001.

“It’s an important win for the victims of violent groups funded by Chiquita,” said Michael Evans, director of the Archive’s Colombia documentation project, “and a big boost for groups seeking to hold multinational corporations accountable for human rights crimes in US courts.”

Earlier this year, Evans filed an affidavit in the class action lawsuit in which he used Chiquita corporate records obtained through the National Security Archive’s FOIA litigation to identify a dozen individuals connected to the paramilitary payments scheme and who are now potential witnesses for the plaintiffs.

In July 2015  a federal appeals court in Washington, D.C., ruled that the US Securities and Exchange Commission (SEC) should release to the National Security Archive some 9,257 pages of records produced by Chiquita Brands International to the SEC as part of an investigation of the company’s illegal payments to the AUC. The Archive’s FOIA case began in November 2008, when our office filed a pair of FOIA requests with the SEC asking for records relating to SEC and Justice Department investigations of Chiquita’s Colombian subsidiary, Banadex, for violations including the illegal AUC payments.

In April 2011, the Archive published some 5,500 pages of Chiquita’s records released by the Department of Justice in response to similar FOIA requests. Those records revealed that Chiquita benefited from its transactions with both AUC “paramilitary” groups and insurgents from the FARC and ELN guerrilla groups. The records call into question the Justice Department’s determination, spelled out in the 2007 plea deal, that there was no evidence of a quid pro quo with the illegal groups.

Domestic Law Enforcement Agency Admits Trip to Secret CIA Prison

The Bureau of Prisons (BOP) recently admitted for the first time that two BOP officials visited a CIA “black site” prison in Afghanistan in 2002. The agency submitted legal filings confirming the visit during the course of an ACLU FOIA lawsuit  – seven months after the bureau told the ACLU that it had no records in response to the ACLU’s FOIA request for information on the visit, which was revealed in a Senate report. Afghan detainee Gul Rahman died at the prison in November 2002 after being “short shackled” overnight, and “likely” freezing to death – a technique the CIA implemented after flying the BOP officials to Afghanistan.

It’s worth noting that “The Bureau of Prisons is a domestic law enforcement agency that does not have the authority to classify intelligence information. The agency explained in the legal filing on Thursday that the two officials who visited the detention site were told by the CIA ‘that they were not permitted to discuss their participation in this training, or to create or retain any records of the training or their involvement.’”

75 Years of CIA Cartography

The CIA’s Cartography Center posted a collection of declassified maps to commemorate the center’s 75th anniversary. The posting includes nine albums that feature cartography tools and maps from the 1940s to the present. The collection of maps from the 1940s notes that the Office of Strategic Services, the CIA’s predecessor, produces 8,000 hand-drawn maps. The release also includes photographs of the Bush administration taken shortly after 9/11 and “a 3D map of the Konar Valley in Afghanistan from 2001, while another map from 2012 includes a full country profile, with geographic information and a timeline of various influential groups in the region.”

Camp David September 12, 2001.

Camp David September 12, 2001.

Fidel Castro Dead at 90

The National Security Archive’s Cuba project director Peter Kornbluh visited with The Atlantic (here) and Democracy Now (here and here) in recent days to discuss what implications Fidel Castro’s death could have on the normalization of US-Cuba relations. The Archive’s Cuba project has produced a number of postings on the US’s complicated relationship with Castro, including:

The National Security Archive also hosted a conference in Havana for the 40th anniversary of the Cuban Missile Crisis, bringing together the senior surviving veterans of the event, including Castro and Defense Secretary Robert McNamara, and featured four panels: (1) from the Bay of Pigs to the missiles, (2) the missiles and the October crisis, (3) the November crisis and aftermath, (4) lessons from the crisis.

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More information on the conference can be found here and here.

PIDB Meeting Next Thursday at NARA

The Public Interest Declassification Board will be holding a public meeting Thursday, December 8. The presentations and public comments will address how best to reduce over-classification, improve declassification, and ensure “a credible and transparent security classification system.” The meeting is open to the public, but space is limited. If you’re interested in attending, please RSVP here.

New Appointments at NARA

Archivist of the United States David S. Ferriero recently appointed Mark Bradley and Alina Simo to head the Information Security Oversight Office and the Office of Government Information Services, respectively. Steve Aftergood notes of Mr. Bradley, he “is not ‘just’ a former intelligence officer and national security lawyer. He is also an historian who has done archival research and worked with declassified records to produce a well-regarded volume called A Very Principled Boy: The Life of Duncan Lee, Red Spy and Cold Warrior (Basic Books, 2014). So he will bring multiple relevant dimensions of expertise to his new responsibilities at ISOO.” Ms. Simo, for her part, comes to OGIS from the National Archives’ Office of General Counsel. While at NARA she “helped rewrite the National Archives’ FOIA regulations.” Prior to her tenure at NARA Simo “served as Director of Litigation in the Office of General Counsel” for the FBI.

The Iran-Contra and Presidential Deceit  

Thirty years ago, President Ronald Reagan announced to the nation – after weeks of denials – that members of his White House staff had engaged in a web of covert intrigue linking illicit US support for a guerrilla war in Central America with a legally and politically explosive arms-for-hostages bargain with the Islamic Republic of Iran. The revelation quickly led to a new phrase – “Iran-Contra” – which became synonymous with political hubris, government incompetence, and dishonesty in the public sphere. This week the National Security Archive posts a selection of materials that spotlight the scandal’s deceitfulness and whose relevance has sadly become more pronounced after a bruising political season marked by examples and allegations of widespread public contempt for facts, evidence and the truth.

#TBT – Trump, Nixon, and PDBs

Nixon’s handwritten comments on the Kissinger briefing memorandum for 11 June 1970 [Document 3A in the #tbt posting]. Next to the item on “Hanoi Takes Tough Line,” Nixon wrote “K – They need another jolt.” Next to the item, “MAC [Military Armistice Commission] Meeting on Captured Korean Ship,” Nixon jotted: “Disgraceful! I want them to have procedures which will allow immediate response in such cases in the future.”

Nixon’s handwritten comments on the Kissinger briefing memorandum for 11 June 1970 [Document 3A in the #tbt posting]. Next to the item on “Hanoi Takes Tough Line,” Nixon wrote “K – They need another jolt.” Next to the item, “MAC [Military Armistice Commission] Meeting on Captured Korean Ship,” Nixon jotted: “Disgraceful! I want them to have procedures which will allow immediate response in such cases in the future.”

This week’s #tbt pick is chosen with reports that president elect Trump recently received his third intelligence briefing – fewer than any of his predecessors – in mind. The Associated Press notes that “While Trump is getting fewer briefings than what’s been traditional, he’s gotten more during the transition than President Richard Nixon.” A September 2016 posting from the National Security Archive’s Nuclear Vault goes further, noting that once in office “President Richard Nixon may never have even read the President’s Daily Briefs partially declassified and released by the CIA with great fanfare on August 24, 2016. The CIA’s claim that the PDBs were ‘the primary vehicle for summarizing the day-to-day sensitive intelligence and analysis … for the White House’ is partly true, but Nixon’s prejudices against the Agency and the distinctive role of national security adviser Henry Kissinger suggest that his cover memos to the PDBs were far more important to the President than whatever the CIA had to say.”

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Happy FOIA-ing!

DEA Releases Two Heavily-Redacted Pages on Two-Decade Surveillance Program

November 22, 2016

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The Drug Enforcement Administration (DEA) released just three lines of unredacted text in response to the National Security Archive’s FOIA request for information on a phone surveillance program the agency ran for 21 years.

The Archive’s cybersecurity and intelligence expert, Dr. Jeffrey Richelson, submitted a FOIA request to the DEA last year for memos on the legality of the DEA’s phone surveillance program, known as USTO. The program was revealed in 2015 to have “tracked billions of Americans’ [international] phone calls” from 1992 until 2013 and was “a clear precursor to the NSA program.” The database captured “virtually all” Americans’ outbound overseas call records to as many as 116 other countries, even if the callers were not involved in any criminal activity.

The DEA recently released two documents on the legality of USTO, one page each, in response to Richelson’s request.

The first document is an August 8, 2013, memo on the “Suspension of [redacted] USTO Program.” The bulk of the document is redacted pursuant to FOIA’s Exemption 7; the unredacted text notes: “At approximately 9:00 p.m. on Friday, August 2, 2013, Deputy Assistant Administrator (DAA) Arthur A. Doty, received the directive to suspend the Drug Enforcement Administration [redacted] USTO Program from Deputy Administrator Thomas Harrigan.”

The second document is entirely redacted.

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The release is paltry (and we are appealing), but it is still more information than the DEA has previously released on the same subject. In 2015 the agency withheld all 38 pages of documents responsive to another of Richelson’s FOIA requests regarding the phone records program. In this instance, the DEA also cited a handful of FOIA Exemption 7 sub-clauses concerning information compiled for law enforcement purposes to withhold the documents, which were located by both the DEA’s Office of Chief Counsel and the Intelligence Division.

USTO is not to be confused with Operation Hemisphere, another DEA surveillance program that began in 2007 and was revealed in 2013 by The New York Times. Under Operation Hemisphere, the DEA and the Office of National Drug Control Policy paid AT&T, the only company identified to date as a participant, for access to an enormous database “that contains the records of decades of Americans’ phone calls” and “covers every call that passes through an AT&T switch – not just those made by AT&T customers.” The records supplied by AT&T go back as far as 1987 and are numerically staggering; approximately four billion call records are added to the AT&T database daily, and the records include information on the locations of callers. The scale and longevity of Operation Hemisphere “appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act.” A federal judge ruled in June of this year that the Drug Enforcement Administration’s explanation for withholding the names of companies and federal agencies involved in Operation Hemisphere from an EPIC FOIA lawsuit was “legally insufficient,” and ordered the DEA to either provide the records or specific reasons for withholding them. Courthouse New Service notes that “The judge also rejected the DEA’s argument that knowing which federal agencies used Hemisphere would help criminals avoid detection via the program.”

In addition to its phone surveillance programs, the DEA has also “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. The license plate program was revealed in 2015 thanks to a FOIA lawsuit brought by the ACLU.

Obtaining information on any of the DEA’s surveillance programs is notoriously difficult. In February 2015 documents released to C.J. Ciaramella and MuckRock showed that the DEA employs a practice known as “parallel construction” – construction of two difference chains of evidence – to “hide surveillance programs from defense teams, prosecutors, and a public wary of domestic intelligence practices.” In the same release, which outlines four “acceptable methods” of concealing sensitive sources that “Americans will accept (so far…)” including parallel construction, the DEA redacted all references to a widely-used “workable” method by citing, yet again, Exemption 7. As Shawn Musgrave points out, “To reiterate, the DEA redacted the name of a method its trainers and legal auditors deemed not only constitutional but also palatable to the public.”

These practices, combined with blanket FOIA denials and anemic releases, help ensure that the DEA remains even less transparent than its intelligence community counterparts.