Inspectors General Council Fights Back Against OLC Opinion Substantially Curtailing DOJ-IG Authority, CIA Six Months Without IG, and Much More: FRINFORMSUM 8/6/2015
The Council of the Inspectors General on Integrity and Efficiency have sent a letter to Congress asking it to pass legislation affirming “the independent authority of Inspectors General to access without delay all information and data in an agency’s possession that an Inspector General deems necessary to execute its oversight functions under the law.” The letter was sent in response to a July 20, 2015, Department of Justice Office of Legal Counsel (OLC) opinion that requires the DOJ-IG to seek permission to review documents pertinent to an investigation, even going so far as to state that “the Department of Justice itself decides whether access by the DOJ-IG is warranted – placing the agency that the DOJ-IG oversees in the position of deciding whether to grant the Inspector General access to information necessary to conduct effective and independent oversight.” The IG Council views this as a potentially serious challenge to every agency IG, and a possible roadblock for IGs “to get permission to review sensitive documents from the very agencies they are monitoring.”
The CIA’s beleaguered inspector general, David Buckley, resigned six months ago, and the Obama administration is facing criticism for not yet nominating a replacement – delaying sensitive internal investigations, like the one into the drone strike that killed Warren Weinstein, an American hostage being held by Al Qaeda in Pakistan, in the process. In February Buckley released his report finding that five CIA officials improperly monitored Senate Intelligence Committee staff working on the CIA Torture Report; while his report admonished the involved officials, the agency opted not to punish them. A CIA panel handpicked by Director John Brennan, “in what was widely seen as an embarrassing rebuke to Buckley,” went so far as to clear the officials of any wrongdoing, concluding that the officials had acted reasonably in the face of a potential security breach. Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Senate Intelligence Committee, sent a letter to President Obama in June asking him to nominate Buckley’s replacement, but the White House has yet to suggest one. Steven Aftergood of the Federation of American Scientists called the move “discouraging,” and the Project on Government Oversight’s Danielle Brian said “It’s clear to me it’s not a priority of this administration to have strong inspectors general.”
A FOIA lawsuit brought by the New York Times has won the declassification and release of documents on the Protect America Act, filling in gaps on the evolution of post-9/11 warrantless surveillance. The Protect America Act, the predecessor to the FISA Amendments Act, was passed in August 2007 and permitted warrantless surveillance on domestic soil provided “the target was a foreigner abroad. The law permitted the NSA to immediately begin using its power, even before the Foreign Intelligence Surveillance Court approved its procedures.” The documents are from 2007 and 2008 and “Some are entirely new to the public, and some were previously released but have now been reprocessed to see if additional information could be left unredacted.”
FOIA-obtained records played a big role in showing that the Air Force gave Senator Lindsey Graham (R-SC), who is currently campaigning for president on the assertion he’s a “battle-tested leader” with “a lifetime of military service”, special treatment “with few expectations in return.” The Air Force promoted Graham twice during his first decade in Congress “even though documents in his military personnel file reveal that he did little or no work. Later, the Pentagon gave the military lawyer a job assignment in the Air Force Reserve that he highlighted in his biography for several years but never performed.” Graham received credit for performing an average of a day and a half of work a year with the Air Force between 1995 and 2005. Graham is often cited for his work between 2006 and 2015 as a senior instructor at the Judge Advocate General’s School at Maxwell Air Force Base in Montgomery, Ala, although “Air Force officials said they had no record of Graham teaching any courses on behalf of the school or even visiting it during that period.”
The Air Force’s new instructions on Media Operations clarifies that employees are not to use force against journalists who do not obey instructions regarding classified information, and “generally favors constructive engagement with the news media, both on principle and out of self-interest.” The instructions outline crisis communications in addition to media operations, and emphasizes that “the primary responsibility for protecting classified information lies with the Air Force, not the reporter.”
The Guardian recently published an in-depth expose based on the Bureau of Investigative Journalism’s research on contractors “working in the processing, exploitation and dissemination (PED) of intelligence” for military drone strikes. The information, gleaned from interviews, the FOIA, and public sources, notes that about one in ten drone controllers is a contractor, posing potentially troubling implications for transparency. Contractors are not supposed to perform inherently governmental tasks, and the Air Force maintains that it keeps “contractors out of sensitive, decision-making positions.” George Washington University law school’s Laura Dickinson notes, “It’s not that these contractors are necessarily doing a bad job, it’s that our legal system of oversight isn’t necessarily well equipped to deal with this fragmented workforce where you have contractors working alongside uniformed troops.”
Last week Archive Director Tom Blanton penned a memorable op-ed in the Washington Post, pushing back against dubious secrets and securocrats’ efforts to use Hillary Clinton’s emails to stem transparency by requesting the DOJ open a security referral into their handling. Blanton, arguing compellingly that America misguidedly classifies too much information, said, “The word is the Cold War is over, yet Cold War secrecy rules still control the government’s information systems.” Blanton further noted that the “best defense of an open society is open information. We are not safer in the dark.” Despite the potential “egregious waste of time and money” involved in re-reviewing documents that were not sensitive enough to warrant classification when they originated, this week it was reported that the FBI – a DOJ component – was already looking into the security of Clinton’s emails, her server, and a thumb drive in her lawyer’s possession that holds copies of the files.
Chilean dictator General Augusto Pinochet refused to accept a police report identifying his military was responsible for burning two teenage protesters -Rodrigo Rojas de Negri and Carmen Gloria Quintana- alive in July 1986, according to declassified US documents recently posted by the Archive. One heavily censored CIA intelligence report highlighted in the posting, titled “Government of Chile Pressure to Drop Investigation and Prosecution of Rojas Case,” shows that regime officials intimidated judges and lawyers and intervened to stall legal efforts in the courts to bring those responsible to justice.
The Archive’s definitive collection of primary source documents about the dropping of the atomic bomb at the end of WWII has been updated to mark the 70th anniversary of the bombings. New documents reveal, among other things, that a few months after the atomic bombings of Hiroshima and Nagasaki, General Dwight D. Eisenhower commented that, “he had hoped that the war might have ended without our having to use the atomic bomb.” See this document and read the whole posting here.
Today’s #tbt pick is chosen with the Archive’s recent receipt of 900 declassified Henry Kissinger telephone calls – telcons –, the result of a FOIA lawsuit filed earlier this year. Today’s #tbt document pick is a September 16, 1973, telcon recording a conversation between Kissinger and President Nixon. Highlighted in a 2008 posting by Archive Senior Analyst Peter Kornbluh, the document recounts their “first substantive conversation following the military coup in Chile…When Nixon asks if the U.S. ‘hand’ will show in the coup, Kissinger admits ‘we helped them’ and that ‘[deleted reference] created conditions as great as possible.’ The two commiserate over what Kissinger calls the ‘bleating’ liberal press. In the Eisenhower period, he states, ‘we would be heroes.’ Nixon assures him that the people will appreciate what they did: ‘let me say they aren’t going to buy this crap from the liberals on this one.’”
This op-ed originally appeared in The Washington Post.
Warning: If you hold a security clearance, reading this column could expose you to information that potentially violates your security agreement. Reading this column will certainly expose you to information that is currently classified by some securocrats, though not by others.
By Tom Blanton
The inspectors general of the State Department and the intelligence community have made a security referral to the Justice Department regarding Hillary Clinton’s e-mails on the grounds that some of them were “potentially classified.”
So is this column.
Watch out: Your clearance is at stake.
Let me get the suspense over with. Here’s a classified fact: We, the United States, based medium-range ballistic missiles carrying nuclear warheads in Turkey in 1962, which angered Soviet leader Nikita Khrushchev so much that he put his own into Cuba.
Wait: I’ve read all about that. It’s been declassified, hasn’t it?
Well, yes. Except — in the immortal words of John F. Kennedy — “there’s always some son of a bitch who doesn’t get the word.”
The word is the Cold War is over, yet Cold War secrecy rules still control the government’s information systems.
The Defense Department still can’t bring itself to declassify nukes in Turkey, and Italy, and the 50 or so other countries where we idiotically stationed them during the Cold War.
Here at the National Security Archive, in our “Dubious Secrets” series, we have published hundreds of U.S. government documents that one office or official considers declassified, while another insists must stay secret. Whom do you listen to?
We have two versions of the same page of White House e-mail, addressed to then-deputy national security adviser Colin Powell, with the top and bottom blacked out from one review, and the middle blacked out from another, 10 days later. Turns out it was the same reviewer both times. So goes the highly subjective process of classification.
But let’s talk about Clinton. Thank goodness she used a private e-mail server when she was secretary of state. If she had used the State Department system, practically none of her e-mail would survive. That’s how bad State’s electronic archiving was then. Instead, the State Department has 30,000 of her messages, and history is becoming much the wiser. Her critics, not so much.
Now, the same folks who clamored to see those messages seem to want to lock them up in classified vaults. Foolishness. They intend to redact the e-mails, thus putting red flags right on messages that circulated for years in unclassified form, thus highlighting the secrets they contain, if there really are any. Keeping the e-mails unclassified would actually be the best way to protect anything sensitive — through obscurity.
There were significant efficiency gains for our national security when the secretary of state ran her main e-mail account in unclassified form. No artificial barriers to information sharing. A bright line against including truly classified documents. A standing rebuke to the massive overclassification all around her.
I’ve seen a couple-million pages of documents that were classified when the government put them on paper or computer screens. I can say from experience that few deserved such consideration.
There are real secrets. This is where I diverge from the Julian Assanges and the Chelsea Mannings of the world. I don’t want the designs of binary chemical warheads getting out, nor the identities of any brave Iranian or Chinese voices who talk to our embassies or CIA stations. The bottom lines of our diplomats in negotiations, I think we should keep to ourselves until such time as the deals are done.
But the real secrets make up only a fraction of the classified universe, and no secret deserves immortality. In fact, essential to the whole idea of democratic government is that secret deals with dictators will come out eventually, not least to deter the worst deals from being made.
WikiLeaks produced hysteria in Washington with its large-scale release of U.S. diplomatic cables in 2010. The House Judiciary Committee asked me to talk about whether lawmakers should amend the Espionage Act to prosecute those guys. Bad idea, I said. I predicted that there would be little damage to real national security because most classified cables can be published within a few years with no harm done.
I showed Congress the estimates over the years of how much gets classified that doesn’t deserve to be. Ronald Reagan’s executive secretary for the National Security Council, Rodney B. McDaniel, said 90 percent. Thomas H. Kean, the Republican head of the 9/11 Commission, said 75 percent of what he saw that was classified should not have been.
In fact, the congressional inquiry into 9/11 concluded that secrecy had kept the American people — our best allies in the fight against terrorism — from engaging with the threat they faced. The only responders with enough information to disrupt any of the Sept. 11 attacks were the passengers on United Flight 93, who heard through their cellphones what was happening on other planes and attempted to retake control of their own, saving who knows how many lives in the process.
The best defense of an open society is open information. We are not safer in the dark.
Those inspectors general poring over Clinton’s e-mails need to get back to their transparency and accountability jobs, where they should focus on opening — not closing — the files that will empower a free citizenry to protect our country and ourselves, and hold our leaders to account.
Tom Blanton is director of the National Security Archive at George Washington University. The Archive won the George Polk Award in 2000 for “piercing self-serving veils of government secrecy, guiding journalists in search for the truth, and informing us all.”
IG’s Want to Open Security Referral into State Department’s Handling of Clinton Records; Focus on Trees and Not Forest of FOIA/Classification Problems.
The inspectors general for the State Department and the intelligence community have asked the Department of Justice to open a security referral to determine if the Department of State inadvertently released Hillary Clinton emails that contained classified information. (The IGs did not ask the DOJ to launch a criminal inquiry “into whether sensitive government information was mishandled” as initially reported by the New York Times.) The IGs requested the review after determining five emails in the trove of tens of thousands Clinton turned over to the State Department contained information from five intelligence agencies that, while not marked classified at time they were on her server, were in fact “secret.” The request for a security referral, according to Secrecy News’ Steven Aftergood, “is a recipe for paralysis,” and the Archive’s Director Tom Blanton says, “The government would be better off dropping any classification claim, both as a matter of security, and of resources.”
State’s Under Secretary of State for Management, Patrick Kennedy, said in a June 29 memo that they were seeking the referral over concerns that Clinton’s personal account housed “hundreds of potentially classified emails.”
Clinton has maintained that none of the emails in her personal account were classified.
While Clinton undoubtedly should have taken measures to preserve her emails with the State Department (the Archive’s full analysis of her sole use of private email can be found here), the IG’s request for a security referral, and the likely retroactive classification of documents that would result, underpins broader problems of government-wide overclassification that ought to be at the fore of the debate.
Unredacted reported earlier this month on the State Department’s release of 3,000 pages (the first batch out of a total of 55,000 pages) of Clinton’s emails – at 9 PM on a Tuesday night, and the Department’s decision to ultimately redact portions of two dozen of them – even going out of its way to fully redact a 16-page speech Clinton gave to the Council of Foreign Relations in 2009 using the “withhold it because you want to” Exemption 5. The State Department hid this unclassified document in its entirety despite the incredibly high public interest in the records and Clinton’s expressed desire to see all of the emails released in full. Archive FOIA Project Director Nate Jones said at the time that using the oft-abused Exemption 5 to withhold this document is an “egregious waste of time and money.”
All of the redacted emails out of the first batch of releases are unclassified, and while “their contents were apparently not sensitive enough to national security at the time to have required a higher classification status” they must now, confoundingly, be redacted in part or in full.
What’s worse is that this “egregious waste of time and money” will balloon exponentially with a security referral. The Justice Department has yet to announce if they will open one, and hopefully they will decide in the negative.
In 2010 National Security Archive director Tom Blanton appeared before the House Judiciary Committee, providing testimony concerning the Espionage Act and whether it should be amended to prosecute Julian Assange and Chelsea Manning. Blanton showed the Committee estimates over the years of how much information gets classified that doesn’t deserve to be. Blanton noted that Ronald Reagan’s own executive secretary for the National Security Council said 90%, and that the Republican head of the 9/11 Commission who saw all the most recent Osama Bin Laden intelligence said that 75% of what he saw that was classified should not have been.
Need another example of overclassification? The latest report from the Information Security Oversight Office (ISOO), housed at the National Archives and responsible to the President for policy and oversight of the government-wide security classification system, showed that the Interagency Security Classification Appeals Panel (ISCAP) continues to overrule agency classification decisions in Mandatory Declassification Review appeals nearly 75% of the time.
Blanton noted in regards to Clinton during his Senate testimony earlier this year that, ironically, because of the State Department’s terrible electronic record keeping,1 Clinton’s use of a private “likely preserved more of her e-mails there than the State Department systems would have done had she exclusively used a state.gov account.” The public will likely get to see many more of them much sooner, too.
The DOJ should decide that it doesn’t make any sense to spend finite resources to retroactively classify emails that were in Clinton’s possession when, in all likelihood, there are no real secrets there, and the State Department and intelligence community officials should spend their own time and resources fixing systemic issues with their respective FOIA administrations rather than focusing on one felled tree in a forest of FOIA failures.
1. A 2015 Department of State OIG report found State’s e-mail archiving system, ironically named SMART, goes almost entirely unused. The report found that State Department “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.'” In 2011 State Department employees only created 61,156 record e-mails out of more than a billion e-mails sent. In other words, roughly .006% of DOS e-mails were captured electronically.↩
FOIA Oversight Reports, Possible Security Referral over Clinton Emails, and Much More: FRINFORMSUM 7/31/2015
The National Security Archive recently updated its listing of previously released reports on agencies’ compliance with the FOIA with more than two dozen various Inspector General reports. The Archive is publishing the reports in an effort to assist the FOIA Advisory Committee’s FOIA Oversight and Accountability Subcommittee, which Archive FOIA Project Director Nate Jones sits on, identify what current authorities for oversight exist, and areas where there are opportunities for additional oversight. The subcommittee continues to encourage members of the public to submit reports that the subcommittee might have missed, and help studying the content of the reports. Suggestions of additional documents and FOIA Oversight and Accountability strategies may be submitted to https://ogis.archives.gov/foia-advisory-committee/contact-us-submit-comments.htm.
Last week the New York Times erroneously reported that the inspectors general for the State Department and the intelligence community asked the Department of Justice to launch a criminal inquiry “into whether sensitive government information was mishandled in connection with the personal email account Hillary Rodham Clinton used as secretary of state.” The real story was that the IGs asked the DOJ to open a security referral to determine if the Department of State inadvertently released Clinton emails that contained classified information. The IGs requested the review after determining that five emails in the trove of tens of thousands Clinton turned over to the State Department contained information that five intelligence agencies claimed was “not marked classified at the time they were stored on her private server but that the contents were in fact ‘secret.’” The request for a security referral, according to Secrecy News’ Steven Aftergood, “is a recipe for paralysis,” and the Archive’s Director Tom Blanton says, “The government would be better off dropping any classification claim, both as a matter of security, and of resources.”
The Office of the Director of National Intelligence (ODNI) recently posted an official statement on the National Security Agency’s (NSA) retention of phone data collected under Section 215 of the USA Patriot Act. The statement follows the June passing of the USA Freedom Act, which, among other things, ended the NSA’s bulk collection of American phone records, instead ordering them to be stored with private phone companies that the NSA will need to obtain a court order to retrieve. After the law’s passage, “the Obama administration gained approval from the Foreign Intelligence Surveillance Court to keep the old bulk phone records program going” during the stipulated six month transition period. ODNI’s latest statement laid out that, pursuant to the USA Freedom Act, NSA analysts “will no longer be permitted to search a database holding five years of Americans’ domestic calling records after Nov. 29.” NSA technicians will be able to view the historic phone records for three additional months for “data integrity” purposes. Prior to this week’s announcement it remained unclear what the NSA would do with the database of historic phone records it had amassed before the program was upended.
In April the NSA declassified 52,000 pages of documents pertaining to the Friedman Collection, which concerns cryptographer William Friedman, arguably the founding father of the intelligence agency and the US’ scientific approach to code-breaking. The documents were subsequently scoured by the BBC, which reports that the documents shed light on American and British intelligence’s secret relationship with the leading Cold War encryption company, Crypto AG. Specifically, the documents reveal a secret relationship between Friedman and the founder of Crypto AG, Boris Hagelin – a relationship known as the “Boris Project.” The BBC reports that the NSA documents show Hagelin kept “the NSA and GCHQ informed about the technical specifications of different machines and which countries were buying which ones.” The BBC further notes, “In one document, Hagelin hints to Friedman he is going to be able ‘to supply certain customers’ with a specific machine which, Friedman notes, is of course “easier to solve than the new models.’”
The Department of Homeland Security (DHS) released documents in response to a FOIA request filed by The Intercept this week that show the department monitored the Black Lives Matter movement since former Ferguson, MO police officer Darren Wilson fatally shot African American teenager Michael Brown last year. Documents show “DHS circulated information on a nationwide series of silent vigils and a DHS-funded agency planned to monitor a funk music parade and a walk to end breast cancer in the nation’s capital,” begging obvious questions about whether or not this surveillance infringes on First Amendment rights. Last week Vice’s Jason Leopold reported, also thanks to documents obtained through the FOIA, that DHS attempted to preemptively stymie the release of any protest surveillance documents concerning the announcement of whether or not Wilson would be indicted because of concerns the documents would be requested under the FOIA.
The New York Times obtained three statements made by Joyce Mitchell – a former employee of New York’s Clinton Correctional Facility who pleaded guilty to helping two men escape from the prison – through the FOIA. (While not explicitly stated by the Times, the FOIA was likely filed with the New York State Department of Corrections.) The statements show that Mitchell did favors for one of the convict’s daughters, that she performed sexual acts with that same prisoner, and that she snuck “tools past guards for use in an audacious escape from a maximum-security prison.”
Over 100 pages of CIA contracting documents were turned over to Jason Leopold and Ryan Shapiro as part of a FOIA lawsuit. The documents show that the agency paid the contractor Centra Technology, Inc. more than $40 million “for administrative support and other tasks related to the Senate’s work [investigating the agency’s torture program]. Those tasks included compiling, reviewing, redacting, and then posting to a server set up by the contractor the more than 6 million pages of highly classified CIA cables and other documents about the torture program Senate Intelligence Committee staffers pored through during the course of their probe.” Senator Dianne Feinstein (D-Calif.) told Vice, “These documents confirm and offer context for what I said in December: CIA spent roughly $40 million in order to hamper the Senate Intelligence Committee’s report on the CIA detention and interrogation program, while the committee operated within its existing budget.”
A FOIA request for materials on Dick Cheney submitted by Colette Neirouz Hanna, the coordinating producer for the Kirk Documentary Group, recently won the release of never before seen photographs taken by Cheney’s staff photographer from 9/11. The photos show, among other subjects, “Cheney watching footage of the World Trade Center attack in his office. Other photos show Cheney and other senior staffers meeting in the President’s Emergency Operations Center, or the secure bunker deep underneath the White House.”
A 38-page Department of Defense review found “systemic problems with irradiation and testing procedures” for an Army laboratory’s handling of anthrax. The review was ordered after reports “that Dugway Proving Ground in Utah inadvertently shipped live samples of the deadly bacteria that reached at least 86 commercial and government laboratories in seven foreign countries, 20 U.S. states and the District of Columbia.” While the review determined serious problems with Dugway’s procedures, the root cause of the inadvertent distribution remains unknown.
Jonathan Pollard, a former Navy intelligence analyst convicted of spying for Israel, will be released after serving 30 years of a life-long prison sentence this November. Pollard’s supporters have long-petitioned successive presidents for Pollard’s release (Clinton only dropped the idea after CIA director George Tenet threatened to resign if he did), but the move remained strongly opposed by the intelligence community. Pollard is currently being released because, “At the time that Mr. Pollard was sentenced, federal law required that he be reviewed for parole after he had served 30 years of his life sentence.” A 2013 Archive posting details what secrets Israel asked Pollard to steal, and includes a declassified 1987 CIA damage assessment of Pollard’s spying. The CIA assessment notes the specific subjects Pollard’s Israeli handlers wanted information on – “primarily for nuclear, military and technical information on the Arab states, Pakistan, and the Soviet Union – not on the United States.” Late last year Pollard’s Israeli handler, former Mossad agent Rafi Eitan, revealed that Pollard had bungled a pre-arranged escape plan that would have delivered him safely to Israel; Pollard blew his escape when he diverted from the plan and went to the Israeli Embassy in Washington, D.C. seeking asylum, at which point Eitan ordered the embassy to kick Pollard out in an attempt to avoid further complications.
The House Committee on Government Oversight and Reform chair, Rep. Jason Chaffetz (R-Utah), who earlier this year told the Department of Justice’s Office of Information Policy (OIP) Director Melanie Pustay that she must be living in “la-la-land” if she thought FOIA was being properly implemented, informed the National Journal that he plans to have a committee vote on a strengthened FOIA bill in September. According to the Journal, the committee is looking to tighten the bipartisan bill, H.R. 653, by identifying “ways to make agencies face consequences for failing to comply with FOIA requests, and reduce the number of exemptions that agencies can use to justify withholding information.” The bill currently amends the FOIA in two key ways: it codifies both that agencies cannot use FOIA’s “withhold it because you want to” Exemption 5 to withhold information that is older than 25 years, and states that “records that embody the working law, effective policy, or the final decision of the agency” cannot be withheld under that same exemption.
Jim Holzer, the chief FOIA watchdog at the Department of Homeland Security, will take over as the head of the federal FOIA ombuds office, the Office of Government Information Services (OGIS) – and not a moment too soon. Prior to the announcement of Holzer’s appointment, which was made at this week’s Federal FOIA Advisory Committee meeting, the position for leading the small federal office, which is responsible for providing FOIA mediation and compliance services for the entire federal government, had been left vacant for six months. The Archive looks forward to continuing to work with the FOIA ombuds office under Holzer’s direction.
FreedomInfo.org’s Toby McIntosh recently posted an excellent article examining one of the most controversial aspects of the recently announced “Release-to-One: Release-to-All” pilot project, namely whether or not “first requesters should get a priority look at the documents released before they are made available to the public.” Interviewing OIP director Pustay vie email, McIntosh reports that OIP has no position on whether or not to provide first-requesters with a lead time on FOIA releases, noting it is something OIP will be examining throughout the six-month pilot program. McIntosh notes that although sub-components of seven agencies are participating in the program, “Those in the pilot differ in what they post and how they do it,” begging broader questions about not only first-requester priority, but also how results of the study will be extrapolated government-wide.
Anticipating protests in response to the announcement of whether or not Ferguson, MO police officer Darren Wilson would be indicted in the shooting death of African American teenager Michael Brown last year, the Department of Homeland Security (DHS) worked on a surveillance plan to conduct of the protests. Vice’s Jason Leopold reports – thanks to over 700 heavily redacted pages he obtained in response to a FOIA request – that DHS attempted to preemptively stymie any protest surveillance documents’ release because of concerns they would be requested under the FOIA. Specifically, “an employee with DHS’s National Protection and Programs Directorate distributed an email on November 11, 2014 reminding personnel to mark all electronic communications ‘for official use only’ because of ‘recent events and FOIA requests.’” FOIA’d documents also show that the agency investigated claims that Muslims had “co-opted” the protests based on “intelligence” from Fox News reporting “on how the Council of American and Islamic Relations (CAIR) was trying to raise awareness about the 2009 shooting death of Luqman Ameen Abdullah, an imam at a Detroit mosque.” One document also shows that DHS officers were looking forward to reuniting with old colleagues in Ferguson and St. Louis, with one writing, “Looks like we are working together again,” and another, “Long time since [Hurricane] Katrina. LOL.”
President Obama’s national security adviser, Susan Rice, allegedly presented Secretary of Defense Ashton Carter with a “memo stating that he would have 30 days to make decisions on newly proposed transfers” of Guantanamo detainees at a cabinet-level “principals committee” meeting last week. Carter’s delay in transferring the detainees since taking office is prompting anxiety among the Obama administration, which wants to close the facility before the president leaves office in 18 months. Mr. Carter did not commit himself to the administration’s 30-day timeline.
US District Court Judge Richard Leon berated the State Department and its Justice Department lawyers over DOS’ handling of a 4-year-old Associated Press FOIA request last week. AP received no response from the State Department on its request, which sought records about former Secretary of State Hillary Clinton’s schedules and staffers, including Clinton Deputy Chief of Staff Huma Abedin, now vice chairman of Clinton’s presidential campaign, until filing suit. Judge Leon harangued the government’s representatives, saying “The State Department, for reasons known only to itself … has been, to say the least, recalcitrant in responding.” Leon also told DOJ lawyers that they were responding to questions about why AP’s request was being delayed because of State’s handling of Jason Leopold’s much more recent request for Clinton’s emails with “convoluted gobbledygook.”
Wired reported recently that a staggering 89% of all wiretaps are fueled by drug cases, an increase of 27% in the last 25 years, and a strong indicator of how the War on Drugs shapes government surveillance. Reporter Andy Greenberg notes “that constant swell in drug-focused wiretaps may help to explain the general increase in all American wiretaps. In total, the count of US state and federal wiretaps has jumped from 768 in 1989 to more than four times that number today. But take out those drug cases, and the collection of wiretaps of all other kinds increased only 29 percent in those 25 years, from 297 in the year 1989 to just 384 last year.” Greenberg reports that one of the reasons drug-related wiretaps far outpace others is the money they can generate: “a wiretap costs an average of $39,485 in 2014 according to the latest report—and unlike other types of crimes, those seizures mean that drug cases can pay for themselves.”
The biggest revelations from the newly-released Rosenberg grand jury testimony shows that Ethel’s brother, David Greenglass, lied about his sister’s involvement to conceal the minor role played by his wife, Ruth. The testimony was obtained thanks to a court order in case brought by the National Security Archive and a coalition of Historical and Archival Associations. The most important passages from Greenglass’ testimony are on page 12, in which he says, “My sister has never spoken to me about this subject,” and on page 30, where he states, “I never spoke to my sister about this at all.” Ruth Greenglass’ testimony, released in 2008, undermined the core charge against Ethel, “struck the keys, blow by blow, against her own country in the interest of the Soviets.” Of the Rosenberg case Brad Snyder says, “This historical import of the David Greenglass’s grand jury testimony is bigger than the guilt or innocence of Julius and Ethel Rosenberg. It is about how the American criminal justice system treats even the most despised and politically unpopular defendants. It is about the role of the Supreme Court in policing the behavior of government prosecutors.”
In a huge win for transparency and corporate accountability, Chiquita Brands International lost its bid to hide Colombia terror documents from the public (again) in a suit brought by the National Security Archive. Last week a federal appeals court in Washington, D.C., ruled that the US Securities and Exchange Commission (SEC) should release to the Archive 9,257 pages of records produced by Chiquita to the SEC as part of an investigation of the company’s illegal payments to a Colombian terrorist organization, the United Self-Defense Forces of Colombia (AUC), a group responsible for egregious acts of violence during Colombia’s civil war. 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 benefitted 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.
The Archive’s latest posting commemorates the 40th anniversary of the Church Committee investigation of CIA abuses, and details how that probe foreshadowed post-9/11 executive/congressional battles. Documents posted this week show, among other things, that: the White House of President Gerald R. Ford, spearheaded by deputy assistant to the president Richard Cheney, quickly seized control of the administration’s response to the congressional investigations; lists of records to which the Church Committee requested access for its investigation were reviewed in detail and Mr. Cheney ultimately decided whether to provide them in each case; and CIA accommodation measures were explicitly designed to keep Church committee investigators away from its most important records.
This week’s #tbt document pick is chosen with the recent Chiquita ruling in mind, and is one of the most startling documents released to the Archive in April 2011. This week’s #tbt pick is a January 4, 1994, Chiquita memo indicating that leftist guerrillas provided security at some of Chiquita’s plantations. The general manager of Chiquita operations in Turbó told company attorneys that guerrillas were “used to supply security personnel at the various farms.”
By Michael Barclay
On July 11, 1970, the United States Air Force launched an ATHENA V-123-D rocket from Green River Launch Complex in Utah. While its intended target was the White Sands Missile Range in New Mexico, it impacted “180-200 miles south of the Mexican border,” according to a recently released memorandum sent from the desk of Henry Kissinger, then serving as National Security Advisor to President Nixon. The document cites “abnormal re-entry into the atmosphere” as the reason why the rocket landed in the Mapimi desert, a “sparsely populated” area in the Northeast corner of the state of Durango. While the three-paragraph memorandum may seem as though the mishap was nothing to be concerned about (noting the Mexican Government’s “willingness to grant clearance and assist in any search efforts”), the cleanup effort was long, costly, and included the construction of a road through the Mapimi desert to excavate hundreds of tons of soil from the impact site. The scale of the cleanup was due to the fact that the rocket was carrying two small vials of cobalt 57, an isotope used to enhance radioactive fallout with the intention of contaminating large areas of land (commonly referred to as a “salted bomb”).
According to a 1971 report from the Office of Air Force History, the ATHENA rocket tests at Green River were part of the Advanced Ballistic Reentry System (ABRES) program. The program “developed and tested promising reentry vehicles and penetration aid devices for use on present and future ballistic missile systems.” While the Atlas test flights under the same program “gathered valuable reentry vehicle performance data” that contributed to the development of multiple independently targetable reentry vehicles (MIRV), the Athena launch program was “suspended in July 1968 after three consecutive flight failures.” But the report notes that after its reactivation in November of the same year, the program yielded “thirteen successful Athena launches” that “carried a variety of payloads” and aided the development of “reentry vehicles [that] altered their ballistic paths upon command.“ But despite these advances, “ABRES program funding dropped from $147.7 million to $105 million” between 1966 and 1969, which forced the Air Force “to postpone development of the improved Athena H booster.” Since MIRV research and development was the program’s main concern at this time, “test range operations—deeply cut in fiscal year 1970…would have to be slashed even more than before.” Combined with the Athena program’s flight record prior to the 1970 test range budget cuts, the ATHENA rocket misfire that occurred at Green River on July 11th of the same year doesn’t seem like as much of an unexpected anomaly as Kissinger’s memorandum to President Nixon makes it sound.
In fact, there seems to be a good amount of evidence pointing to the fact that the ramifications of a misfired rocket impacting foreign soil were not only considered prior to the construction of Green River Launch Complex, but were taken seriously enough to halt launch plans at other facilities for fear of triggering an international incident. On August 11, 1963, a memorandum entitled “Report on Peacetime Launch From ICBM Operational Sites” was sent to the Joint Chiefs of Staff suggesting that despite “the limited record of past performance of [the Air Force’s] liquid–fueled missiles…we do not have high confidence that such tests would be completely successful.” The report goes on to note that “public acceptance of overflight by test shots in the vicinity of our national ranges has been encouraging and the public is willing to accept some risk if such tests appear necessary in the national interest.”
Several months later, an Air Force General responded to claims of political and safety concerns by noting that “system reliability can no longer be considered a limiting factor” to rigorous ICBM testing. But within a matter of days, another Air Force memorandum reiterated that the “concern of possible international and political implications” resulting from overflight “remain[ed] as the major constraint against launching Minuteman missiles from existing operational sites at [the] time.” While this may seem like an unnecessary concern if the Air Force were to take proper precautions in the construction of its launch sites and testing ranges, the description of an overflight make the author’s fears seem well warranted. In reference to the launching of Minuteman missiles from Malstrom Air Force Base in Montana, he notes that “examination of the planned flight profile indicated first stage impact just short of the Canadian border; second stage in the Hudson Bay; with re-entry vehicle impact in the North Atlantic area off the coast of Greenland. Since a malfunction similar to the failure of thrust termination control experienced on the first Minuteman Operational Test launch could result in overflight of Canada and Western Europe with flight termination in Africa, the political aspect [is] of much greater concern.” Clearly, this was a scenario worth being concerned about, which is why these tests were eventually fired from Vandenberg Air Force Base in Lompoc, California.
At the very least, these internal Air Force communications beg the question of why so many ICBM tests were conducted with insufficient funding after their safety and political concerns were made so abundantly clear. A National Intelligence Estimate of the USSR’s nuclear arsenal, signed by former CIA Director Richard Helms on October 20, 1966, sheds a fair bit of light on why military strategists were so anxious to begin ICBM testing despite multiple experts advising that overflight was a real and legitimate concern. Their urgency was fueled by protracted concerns of the Soviet Union matching the United States’ nuclear force. The 1966 CIA report voiced concerns that not only would the USSR “have reached approximate numerical parity with the currently scheduled US force of ground-based ICBM launchers” by 1971, but that this quantitative parity would allow the Soviets to develop a nuclear arsenal that would be qualitatively superior.1 In this frame of mind, the deployment of “multiple, independently-guided re-entry vehicles (MIRV) and other suborbital or fractional-orbital long-range ICBMs” that boast “a considerable improvement…in re-entry technology” seemed not only inevitable, but swiftly approaching.2 This explanation may seem like somewhat of an oversimplification, but the 131 ATHENA rocket test flights launched from Green River between February 4, 1964, and September 17, 1971, stand as an undeniable testament to the lengths that American policy makers and military strategists were willing to go to maintain a nuclear advantage over the Soviet Union. The fact that these launches happened despite multiple test failures, a dwindling budget, and the looming possibility of an international political incident is further confirmation of the extent to which nuclear force parity had become central to American foreign policy by the beginning of the 1970’s.
While it could easily be written off as a military and scientific blunder, the ATHENA V-123-D launch on July 11, 1970, has a very rich back story that has a lot to teach us about the ways in which genuine diplomatic, security, and logisitical concerns can be swept under the rug in the face of myopic policymaking. In this sense, it seems almost fitting that the area of the Mapimi desert that was impacted by the rocket has become much less a symbol of the Cold War arms race than it is a magnet for paranormal and extraterrestrial folklore. Commonly referred to as the Mapimi Silent Zone, locals have latched on to the legends of radio silence and alien sightings as a means to boost tourism in an area that would have had none otherwise. While it is referenced in several news articles and Wikipedia entries, the ATHENA misfire that occurred on July 1970 rarely outshines the reports of UFO’s and paranormal activity that it provides a scandalous backstory for.
1. Soviet Capabilities for Strategic Attack, Top Secret, National Intelligence Estimate, Excised Copy, NIE 11-8-66, October 20, 1966. p. 37.↩
2. Ibid. pp. 37, 40.↩
Open Gov Groups Still Interested in OGIS Reviewing Agency Practice of Sending “Still Interested?” Letters; DHS’s Mobile FOIA App Misses the Mark, and Much More: FRINFORMSUM 7/9/2015
This week the Department of Justice’s Office of Information Policy (OIP), tasked with ensuring government-wide FOIA compliance, issued new guidance on agencies issuance of “still interested?” letters. These are letters agencies send requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. The OIP guidance is, on its face, pretty good: it requires agencies to limit the instances in which they send such letters; it requires that agencies provide requesters a reasonable amount of time to respond to the query (30 days at a minimum); and it mandates that requesters should not be disadvantaged if they miss the letter’s deadline by only a “reasonable” amount.
The overall premise behind the “still interested” letters, however, is fundamentally flawed. There is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted. While the “still interested” letters can be useful, any guidance that condones an agency closing a FOIA request without legal authority provided by the FOIA is misguided and should be revised.
The silence from the Office of Government Information and Services (OGIS), the FOIA ombuds office, on this issue is of additional concern. In response to several Archive requests for OGIS assistance concerning agencies’ practice of issuing such letters (and in some instance only allowing a requester 10 days to respond before closing the request), OGIS informed our office in November 2014 that “On October 30, 2014, a group of organizations including the National Security Archive contacted OGIS about agencies’ practice of sending still interested letters, citing EPA, among other agencies. As you are aware, OGIS’s review team determined that it will take a close look at this matter.” Eight months later OGIS has yet to take any action on this issue, and OIP has taken advantage of OGIS’s silence and issued guidance condoning the legality of a practice that has no legal basis in the FOIA.
The Department of Homeland Security (DHS) launched an app to submit FOIA requests this week – perhaps a little too quickly. According to Huffington Post Technology and Science editor, Alex Howard, “Instead of launching a better way for the public to make and track requests or teaming up with the Department of Justice to fund work on a universal FOIA request feature at the government’s openFOIA website, the federal agency that receives and responds to the largest number of FOIA requests in the country actually made the experience of submitting one worse.” Among the app’s sticking points are: the microscopic font; the keyboard obscures the text of the FOIA request being drafted; and the fact that the app doesn’t retain a user’s contact information. Additionally, “The app’s permissions, at least on the Android store, state that it requires access to your approximate location.” This is according to Reporters Committee for Freedom of the Press’ Adam Marshall, who went on to say, “There is absolutely zero reason for the DHS to have access to the location of my phone, and I’m not going to install an app from the federal government that allows for that functionality. FOIA is designed to ensure that the public knows what the government is up to, not the other way around.”
DHS FOIA funds would have been much better used to make its current FOIA website responsive to mobile browsers rather than creating a clunky, hard to use, unneeded app.
Last week the Senate Intelligence Committee approved legislation that would require social media sites to report content posted by suspected terrorists, although it doesn’t require the companies to remove the content. While the committee claims the bill, which doesn’t require companies to monitor their sites if they do not already do so, is a “pretty low burden,” it’s received criticism for being technically difficult – in part because “Social media sites generally do not monitor their sites for terrorism or any other content except child porn” – and vague in its wording. The legislation is contained in the 2016 intelligence authorization act and has not yet been voted on by the Senate.
A hack of the for-hire hacking company Hacking Team has revealed that the FBI, the DEA, and the Army have all bought the Italian company’s controversial software that allows “users to take remote control of suspects’ computers, recording their calls, emails, keystrokes and even activating their cameras.” The Intercept reported this week that emails, financial reports, and other Hacking Team documents show that the FBI’s Remote Operations Unit has been using the software since 2011, and that the CIA, the Pentagon’s Criminal Investigative Service, the New York Police Department, and Immigration and Customs Enforcement were all communicating with Hacking Team about potentially purchasing their software. Hacking Team reported that it had lost control of the controversial software in wake of the hack, saying “it believed anyone could now deploy its RCS software ‘against any target of their choice.’”
Multiple Somali and African Union officials have confirmed the existence of a secretive US drone base operating out of Kismayo, Somalia. These officials allege that, “a team of special operators from the Joint Special Operations Command, the elite U.S. military organization famous for killing Osama bin Laden, flies drones and carries out other counterterrorism activities” from the Somali base. The US has yet to acknowledge operating a drone base on Somali soil. The CIA’s “substantial presence” in Mogadishu was also recently reported by The Nation, which detailed the agency’s training of a clandestine Somali commando force called “Shield.”
A United Nations (UN) panel has found that new evidence concerning the September 1961 death of UN Secretary General Dag Hammarskjold, whose plane was shot down over what is now Zambia, warrants further investigation. A 2013 UN inquiry uncovered “persuasive evidence that the aircraft was subjected to some form of attack or threat as it circled to land.” As a result, in 2014 Sweden, Hammarskjold’s home country, appealed to all UN member states to disclose unpublished documents on Hammarskjold’s death. This appeal was likely “a reference aimed largely at securing the declassification of American and British files, particularly intercepts thought to have been made at the time by the National Security Agency.” The NSA continues to withhold two of three 50-year-old documents requested by the Archive regarding the incident on national security grounds. Despite the new evidence and calls for further investigation into the crash, the NSA holds that “files classified as top secret from the National Security Agency would not be released,” a sentiment echoed by the British.
David E. Hoffman’s “The Billion Dollar Spy: A True Story of Cold War Espionage and Betrayal,” published this week, relies on 944 declassified CIA cables to help tell the story of Adolf Tolkachev, once the CIA’s most valued and successful spy in the USSR. Tolkachev, an engineer and specialist in airborne radar, provided the CIA with “documents and drawings had unlocked the secrets of Soviet radars and weapons research years into the future. He had smuggled circuit boards and blueprints out of his military laboratory.” Tolkachev spied for the CIA from 1979 through 1985, before ultimately being compromised, arrested, and executed. A selection of the declassified CIA cables on Tolkachev are available at davidehoffman.com.
Declassified documents recently published by the National Security Archive shed new light on the 2012 creation of the DOD’s Defense Clandestine Service, the expansion of Army and Air Force HUMINT operations since 2002, the work of the Iraq Survey Group, and much more. Read the whole story on the evolution of the Pentagon’s spy units through the Obama administration here.
This week’s #tbt document pick is chosen with the possible re-opening of the Dag Hammarskjold investigation in mind. This week’s pick is a 1994 CIA History Staff document by Nicholas Cullather entitled, “Operation PBSUCCESS: The United States and Guatemala, 1952- 1954,” and is a narrative history of the CIA’s role in planning, organizing and executing the coup that toppled President Jacobo Arbenz Guzmán on June 27, 1954. One portion of the document (page 85) describes international condemnation of the plan, noting that UN Secretary General Dag Hammarskjold charged that “the United States was completely at variance with the (UN) Charter.”