CIA Forced to Release Bay of Pigs History Agency Once Said Would “Confuse the Public” if Declassified
“After more than twenty years, it appears that fear of exposing the Agency’s dirty linen, rather than any significant security information, is what prompts continued denial of requests for release of these records. Although this volume may do nothing to modify that position, hopefully it does put one of the nastiest internal power struggles into proper perspective for the Agency’s own record.” This is according to Agency historian Jack Pfeiffer, author of the CIA’s long-contested Volume V of its official history of the Bay of Pigs invasion that was released after years of work by the National Security Archive to win the volume’s release. Chief CIA Historian David Robarge states in the cover letter announcing the document’s release that the agency is “releasing this draft volume today because recent 2016 changes in the Freedom of Information Act (FOIA) requires us to release some drafts that are responsive to FOIA requests if they are more than 25 years old.” This improvement – codified by the FOIA Improvement Act of 2016 – came directly from the National Security Archive’s years of litigation.
The CIA argued in court for years – backed by Department of Justice lawyers – that the release of this volume would “confuse the public.” National Security Archive Director Tom Blanton says, “Now the public gets to decide for itself how confusing the CIA can be. How many thousands of taxpayer dollars were wasted trying to hide a CIA historian’s opinion that the Bay of Pigs aftermath degenerated into a nasty internal power struggle?”
To read all five volumes of the CIA’s Official History of the Bay of Pigs Operation – together at last – visit the National Security Archive’s website.
CIA Says CREST Database Will be Published Online, Doesn’t Say When
The CIA recently announced that it would place its CREST database of nearly 13 million declassified documents online – but is not providing a timeline for doing so (the collection grew significantly earlier this year when the CIA and National Geospatial Intelligence Agency added “nearly 100,000 pages of analytic intelligence publication files, and about 20,000 pages of research and development files from CIA’s Directorate of Science and Technology, among others” to the database). The database is currently only available onsite at the National Archive’s College Park location in Maryland, and only about 250,000 pages are presently available on the CIA’s website.
The announcement comes after several lawsuits, a KickStarter campaign, and FOIA requests from the National Security Archive, among others. Recent lawsuits for the database’s release have been filed by MuckRock and Jeffrey Scudder. The CIA initially told MuckRock that it would take 28 years to release the set, prompting MuckRock to file suit, but later announced it could release the documents in six years with only a “spot check” for classified information even though the documents are already declassified. MuckRock user Michael Best, frustrated with the needless hurdles to access, launched a KickStarter campaign to buy the equipment necessary to scan and upload all the documents online. The National Security Archive also filed a FOIA request for the database’s release. The CIA denied our request, we appealed (always appeal), and were informed by the CIA that it hadn’t extended us appeal rights and therefore our appeal was not processed. The Archive contacted OGIS for assistance in this matter, but were told “In such cases as this where an agency is firm in its position, there is little for OGIS to do beyond providing more information about the agency’s actions.”
The FBI’s Big FOIA Problem isn’t Twitter, it’s the Bureau’s Grossly Outdated, Inefficient Search Software
Hillary Clinton’s press secretary Brian Fallon recently tweeted that the FBI FOIA Office’s release of heavily-redacted documents on the Clinton Foundation a week before the election was “odd.” Fallon, likely playing off criticism of FBI director James Comey’s recent letter to Congress regarding newly-discovered Clinton emails in connection to a separate investigation into Anthony Weiner, said that the FBI’s posting of the documents and subsequent promotion on Twitter was odd “absent FOIA litigation.”
Agencies, however, are supposed to both proactively post documents of likely public interest and publish documents that have been the subject of three or more FOIA requests online. The Justice Department’s Office of Information Policy reminds agencies that, in addition to following the “rule of three,” they are obligated to proactively disclose FOIA-processed documents where there is an “expectation of future interest” or there is an “anticipated receipt” of at least two other similar requests.
Part of Fallon’s claim that the timing of the tweet was odd was based on the fact that prior to late October 2016, the Twitter account the FBI used to automatically post FOIA releases was inactive for nearly a year. The FBI claims the feed was inactive because the automated system was broken – something frequent FOIA filers with the FBI likely have no trouble believing, but is a small problem compared with the real issues at the FBI’s FOIA shop.
The larger problem with the FBI’s FOIA Office is the bureau’s grossly outdated FOIA software that is built not to locate responsive records. Ryan Shapiro is currently suing the agency over its intentionally cumbersome FOIA search software, and a good summary of the suit can be found here.
It’s worth mentioning that accusations of politicizing FOIA requests is something Clinton’s State Department was not immune to. In May 2015 The Wall Street Journal reported that Clinton’s former chief of staff, Cheryl Mills, “insisted on reviewing all Keystone-related documents being prepared for release, and flagged as problematic a few that the department’s records-law specialists felt obligated to release.” Mills reportedly informed a FOIA specialist that if records were released that Mills wanted withheld, “Mrs. Clinton’s office wouldn’t comply with any future document requests on any topic.”
What State Department’s FOIA office does do well, however, is posting FOIA-processed documents quarterly in its FOIA reading room – a virtual library that currently houses 146,618 documents. If the FBI had a similar posting schedule for its FOIA processed records, it would not be the subject of such scrutiny for posting FOIA releases.
“Able Archer 83: The Secret History” On Shelves Now!
“Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War,” Nate Jones’s new book on how the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during the 1983 NATO nuclear release exercise, is now on shelves. Jones hosted a Reddit Ask Me Anything session on the event (some great questions and answers here), and was recently interviewed by the Wilson Center’s John Milewski in a segment entitled, “The War Game that Almost Became Real.”
Jones will also be hosting a November 15 book talk at Walls of Books – Washington, DC at 7:00, and an International Spy Museum Podcast that will be released November 15.
TBT Pick: Nuclear Terrorism
This week’s #tbt pick is a 2012 posting from Dr. Jeffrey Richelson on “Nuclear Terrorism: How Big a Threat?” Some items of note in the posting are:
Some items of particular interest in today’s posting are:
- A Defense Science Board report (Document 8) which discusses Project SCREWDRIVER (1950-52) and the resulting Project DOORSTOP (1953-70), whose objective was to detect any attempts by Soviet Bloc diplomats to smuggle nuclear material into the United States.
- Creation of the ‘SIGMA 20’ nuclear weapons data category – to protect information about data on improvised nuclear devices (Document 12).
- The report (Document 17) of a radiological survey of Washington, D.C. in preparation for the nuclear detection efforts conducted before and during the 2009 presidential inauguration.
Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.
Thousands of Curated Top Secret CIA Digests Now Available through the Digital National Security Archive
The National Security Archive, working with our partners at ProQuest, just published a new compilation of documents on the President’s Daily Briefs (PDBs) from the Kennedy and Johnson administrations that is now available online. This collection of PDBs (PDBs are Top Secret CIA digests of essential intelligence presented every morning to the president that were previously said to be too sensitive to ever be released) will serve as a rich source not only on a pivotal period in modern world history but on the workings of government and the national security system, especially presidential decision-making, CIA intelligence production, and government secrecy.
The President’s Daily Brief: Kennedy, Johnson, and the CIA, 1961-1969 consists of 2,483 documents and 19,098 pages of Top Secret intelligence summaries prepared by the CIA and delivered to the president each day. Known as the President’s Intelligence Checklist (PICL) during the Kennedy administration and the President’s Daily Brief (PDB) during Johnson’s tenure, these documents were used to brief the president on world events and global threats, including the evolution of the war in Vietnam, conflicts resulting from decolonization in Africa and Indonesia, Cold War crises in Berlin and Czechoslovakia, the Cuban Missile Crisis and its aftermath, Latin American political upheavals, and the 1967 Six-Day War in the Middle East, among others.
These documents were kept secret for nearly four decades, with only a few PDBs finding their way into the public domain. The CIA fought hard to prevent their disclosure, and continues to inconsistently declassify the documents, claiming that the daily summaries would reveal intelligence sources and methods. Press secretary Ari Fleisher termed the PDB “the most highly sensitized classified document in the government.” and CIA director George Tenet declared that information in these records could never be disclosed “no matter how old or historically significant it may be.”
The National Security Archive – in partnership with others in the academic community – was instrumental in paving the way for the first substantial release of PDBs through a campaign of public education and pressure that finally led to litigation. The Archive joined with Professor Larry Berman in 2007, then a professor of political science at the University of California, Davis, in a suit against the CIA. Though the court denied the plaintiffs’ immediate request, it rejected the CIA’s attempt to obtain a blanket exemption for all PDBs, opening the door for the eventual release of the 2,483 documents and nearly 19,100 pages included in this collection.
Above all, the PDBs in this collection will help researchers understand how decision-makers receive and utilize information in determining policy. (Combining these materials with the Digital National Security Archive’s collections on presidential directives will increase their value even more.) With coverage spanning several years, researchers can use the PDBs to analyze comparatively the interests, priorities and approaches of different presidential administrations. Students of the U.S. intelligence community will also find much raw material for understanding one of the most critical aspects of the community’s mission – keeping the president informed.
Among the important topics covered by these documents are:
- the evolution of the Vietnam war;
- the Cuban missile crisis;
- the Congo crisis;
- the Laotian civil war;
- tensions among Indonesia, the Philippines, and Malaya resulting from the creation of Malaysia and the decolonization of Borneo;
- leadership changes in the Soviet Union;
- Soviet military aid to Cuba, Latin America, the Middle East, and Africa;
- the North Yemen civil war;
- the Biafra-Nigeria civil war;
- intercommunal violence in Cyprus and the Greek and Turkish responses;
- elections, coups, and civil unrest in Latin America;
- the Sino-Soviet dispute;
- Chinese conflicts with India and Taiwan;
- the Chinese cultural revolution;
- independence movements in Africa and the Caribbean;
- the French withdrawal from NATO;
- European discussion of political, economic, and security benefits of integration;
- Cold War flashpoints in Berlin;
- Czechoslovakia’s Prague Spring;
- nuclear issues;
- the space race;
- the Arab-Israeli conflict;
- Egypt’s attempts to unite with Syria, Jordan, and Iraq
“Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War,” Nate Jones’s new book on how the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during the 1983 NATO nuclear release exercise, is now on shelves.
David Hoffman, author of The Dead Hand: The Untold Story of the Cold War Arms Race and its Dangerous Legacy, says of Jones’s book: “Able Archer 83 is an invaluable resource on one of the most dangerous moments of the Cold War. The book contains an unmatched collection of previously secret documents about the War Scare of 1983 and the Able Archer exercise at the center of it. If you want to learn from history, this is the place to start.”
To mark the occasion, Jones will be hosting a Reddit Ask Me Anything tomorrow, November 2, at 3:00 ET, a November 15 book talk at Walls of Books – Washington, DC at 7:00, and an International Spy Museum Podcast that will be released November 15.
508 Should Not Undercut FOIA’s Promise to Release the Most Documents to the Most People the Most Quickly: FRINFORMSUM 10/26/16
508 Should Not Be Distorted to Undermine FOIA
This week an expert panel comprised of representatives from the Access Board and the General Services Administration addressed the FOIA Advisory Committee’s October 25 meeting and answered questions on 508 compliance. 508 compliance refers to a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities and that federal employees with disabilities can access records with the same ease as their counterparts since 1998. It is also often cited by agencies as a reason they cannot post FOIA releases online, because either making documents 508 compliant is too difficult or agencies fear being sued for posting “non-compliant” documents – even though all documents created after 1998 are required to be accessible so that agency employees with disabilities can still access them.
The expert panel made several important remarks, including the fact that while 508 is a requirement for agencies, how far each agency goes fulfilling 508 standards is a matter of agency discretion. The panel also noted that if making documents 508 compliant constitutes an “undue burden,” agencies can still post documents that are not 508 compliant to their websites. Finally, the panel also noted that some agencies do post non-508 compliant documents but provide a disclaimer and further instructions for individuals with accessibility issues on how to access the documents – a practice that the panel indicated is acceptable and is something the Department of Homeland Security, among others, currently does. (The DHS website states: “If the format of any material on our website interferes with your ability to access the information, due to an issue with accessibility caused by a disability as defined in the Rehabilitation Act, please contact Website Issues for assistance.)
The National Security Archive’s FOIA Project Director Nate Jones, after pointing out the problem of contractors monetizing the technological burdens of making documents 508 compliant, asked the panel for the citations used to make claims that agencies are allowed to use disclaimers to post documents online that are not 508 compliant and what constitutes an undue burden.
Tom Susman, director of the American Bar Association’s governmental affairs office and member of the FOIA Advisory Committee, cut to the core of yesterday’s meeting, summarizing: “On the one hand, I’m hearing from you either there’s a technology that can do it, or if it’s too great a burden, an agency can go ahead with a disclaimer. Yet I’m hearing from the other side, a lot of agencies and government people say, ‘Oh no, no, 508 keeps us from doing it.’ I think that’s really the question of the day.”
The FOIA and 508 statutes should not be at loggerheads, and the Sunlight Foundation’s Alex Howard emphasized during the public comment period that, under no circumstances, should a statute mandating greater access be distorted by agencies to undermine the FOIA’s intent to disseminate the most information to the most people the most quickly.
The meeting was recorded, but the video will not be made available until it is made 508 compliant.
Donald Rumsfeld, Prolific Short Memo Writer, Chastises Subordinates for Short Memo Use
Donald Rumsfeld was famous for sending out short memos, often referred to as “snowflakes,” during his tenure as Defense Secretary – regularly producing between 20 and 60 a day. The National Security Archive filed a FOIA request for these “snowflakes” in 2007 – that has not yet been fulfilled. Some of Rumsfeld’s snowflakes have, however, been released under different FOIA requests. A 2012 FOIA request to the DOD for 2004 Afghanistan records produced an ironic September 9, 2004, snowflake from Rumsfeld on “Memo Procedure.” The note reads: “Attached is a short memo from Mira. I noticed that it has been approved by you [Doug Feith], Mira, and seven others. You might want to review your procedures to determine if a short memo like this requires so many people to approve.” The memo referenced is entirely redacted.
FOIA Lawsuit Reveals High Level of PTSD Among Guantanamo Guards
A FOIA lawsuit filed by VICE News’s Jason Leopold has won the release of several reports that reveal the high rates of post-traumatic stress among Guantanamo prison guards. One of the released reports, a 2011 Army Institute of Public Health study, notes that “Between 2008 and 2011, the joint task force that operates the detention facility secretly evacuated at least 19 troops who had worked in detainee operations due to severe ‘behavioral health reasons.’” The study also found that 1 in 5 troops were considered to be a high behavioral health risk – for having suicidal thoughts or exhibiting behavioral conditions like depression that required “intensive medication management and/or therapy.” The study recommended, among other things, that the “military pre-screen all troops prior to their deployment to Guantanamo to identify pre-existing behavioral health conditions,” although a Guantanamo spokesperson would not confirm if any of the recommendations were implemented.
MOONLIGHT MAZE Remains Heavily Redacted
This week’s Cyber Vault update includes a heavily-redacted April 1999 FBI memo that summarizes recent developments in a series of computer infiltrations that began in 1998 and lasted almost two years. Codename MOONLIGHT MAZE, the investigation traced the attacks to Russia – although Russia denied any involvement – and revealed serious gaps in the U.S.’s cyber defense. The document provides extensive background on the MOONLIGHT MAZE investigation of computer systems in the United States and at least four other nations (the United Kingdom, Canada, Brazil, and Germany), but, more than 15 years later, remains heavily redacted pursuant to the FOIA’s exemption 7.
FOIA Apology Drafted by HRC Aides, Never Issued
Hillary Clinton aides drafted a mea culpa on how her use of private email and server while Secretary of State affected the State Department’s handling on FOIA requests. The State Department has been inundated with dozens of FOIA lawsuits to preserve the documents as federal records and spur their release since Clinton’s personal email use was revealed early last year. One draft of the statement, which was released after Clinton campaign chairman John Podesta’s emails were hacked and published online, read “I wish I had thought more about the public records process and the impact on FOIA requests.” (For our run-downs on Hillary Clinton’s email use, go here and here.)
A number of references to the National Security Archive also appear in Podesta’s hacked emails – including Archive Director Tom Blanton’s July 2015 Washington Post op-ed – “America classifies way too much information — and we are all less safe for it.” The article, contextualizing an Intelligence Community Inspector General report that Clinton’s personal emails contained “several dozen” classified emails, lays out the ongoing problem of overclassification. Blanton argues that “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…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.”
Enemy Drones of Rising Concern
Steven Aftergood recently flagged an Army doctrinal publication on Secrecy News concerning the growing threat of enemy drone use. The paper notes that “Perhaps the most dangerous COA [course of action]… is the Swarm” in which drone clusters “are used by an adversary simultaneously for surveillance, indirect attack and direct attack;” it also cites the growing concerns of drones functioning as explosives. The paper, Aftergood notes, does not expressly state how to deal with both of these concerns, while citing a New York Times article from earlier this month on ISIS’s use of exploding drones.
#TBT in Honor of Bulgaria’s Access to Information Program’s 20th Anniversary
This week’s #tbt pick is chosen with Bulgarian NGO Access to Information Program’s (AIP) 20th anniversary in mind. AIP has produced valuable annual transparency audits since 2006 “to evaluate how the executive bodies fulfill their obligations for proactive publication of information online under the Access to Public Information Act and other legal regulations and to assess their readiness to respond to electronic requests.” This week’s pick is a 2010 blog post, using documents requested under the Bulgarian Access to Public Information Act by AIP and journalist Vesselka Venkova of the Bulgarian Duma daily, on whether Prime Minister of Bulgaria, Boyko Borisov, “pays his own way.” Borisov resigned in 2013 after national protests over – in part – corruption, but was reinstated in 2014.
Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.
Archive FOIA Project Director and author of the new book, Able Archer 83: The Secret History of the NATO Exercise That Almost Triggered Nuclear War, Nate Jones, recently presented the four key takeaways from his research to-date on the 1983 War Scare before a packed house at the Wilson Center.
Jones, with commentary by Archive Director Tom Blanton and an introduction from the Cold War International History Project’s Christian Ostermann, analyzed the documentary evidence (which Jones has been fighting for over a decade to free through hundreds of Freedom of Information Act and Mandatory Declassification Review requests) on one of the most dangerous periods of the Cold War.
The evidence presented at the Wilson Center and in the book, according to Blanton, “effectively resolves a heated controversy that divided the CIA in the 1980s and has led to sharp exchanges between scholars ever since.”
The video of the presentation and the Q&A is available here. The Wilson Center will also be releasing its own recording, and we will update this posting when it becomes available.
Other events Jones will be holding include a November 2 Reddit Ask Me Anything at 3:00 ET, a November 15 book talk at Walls of Books – Washington, DC at 7:00, and an International Spy Museum Podcast which will be released November 15.
Early praise for Jones’s book includes:
“Twenty-one years after the Cuban Missile Crisis, a NATO exercise, Able Archer 83, came terrifyingly close to precipitating an accidental nuclear war. Nate Jones’s brilliantly researched and gripping history of government miscalculations and misjudgments on both sides of the iron curtain during this war game poses the twenty-first-century’s most serious existential question: How many nuclear bullets can humanity dodge? Read it and reckon! I don’t think you will like the answer.”
–MARTIN J. SHERWIN, University Professor of History at George Mason University and author of A World Destroyed: Hiroshima and Its Legacies
“Able Archer 83 is an invaluable resource on one of the most dangerous moments of the Cold War. The book contains an unmatched collection of previously secret documents about the War Scare of 1983 and the Able Archer exercise at the center of it. If you want to learn from history, this is the place to start.”
–DAVID E. HOFFMAN, author of The Dead Hand: The Untold Story of the Cold War Arms Race and its Dangerous Legacy
“Read this book and you will make the world a safer place. Read these former secrets-many of them classified above Top Secret-and you will understand how the Cold War dangers that flared in 1983-and could have produced a nuclear war through miscalculation and misperception-are still with us today.”
–TOM BLANTON, director, National Security Archive (from the foreword)
“Able Archer 83 brings us back to a moment when we all came close to becoming cinders or radioactive corpses. It’s an important contribution to our understanding of how the Cold War played out, and how erroneous assumptions routinely become institutionalized policy, which then becomes almost irresistible.”
–GLENN L. CARLE, a former CIA officer and author of The Interrogator
Good FOIA Fee Guidance from OIP, How the Next President Can Strengthen Records Accountability, and More: FRINFORMSUM 10/20/2016
Good FOIA Fee Guidance from OIP
The Department of Justice Office of Information Policy (OIP) has issued good FOIA fee guidance that clearly lays out for agencies the limitations the FOIA Improvement Act of 2016 places on their ability to assess fees. Importantly, the guidance reminds agencies that “unusual circumstances,” which agencies routinely cite when processing FOIA requests while continuing to assess fees as usual, are extremely limited and must meet strict thresholds to qualify as “unusual.” In cases where that threshold is not met, most fees cannot be assessed; OIP also emphasizes that if the request involves 5,000 pages or less and agencies take over 30 days to respond, most fees may not be charged. The strong guidance – which should result in agencies charging much fewer fees going forward – is good to see from OIP; the next step will be ensuring that the Office of Management and Budget follows through on recommendations by the FOIA Advisory Committee to update its three-decade-old fee guidelines.
FOIA Federal Advisory Committee Meeting
The FOIA Advisory Committee’s next meeting will take place on Tuesday, October 25th at 10 AM in the Archivist’s Reception Room at NARA. While the meeting will be recorded, live streaming will not be available. (I’ll be there live-tweeting for those who can’t make it.)
Opportunity for Next President to Strengthen Records Accountability
OpenTheGovernment.org recently published a letter for both presidential campaign transition teams for actions the candidates can take to demonstrate their commitment to strengthening records accountability within the federal government. Noting that the revelation of Secretary Clinton’s use of personal email “created a pivotal moment for the public to pressure the government to examine the way officials manage, preserve, and release information in the digital age,” the letter’s co-signers, including National Security Archive director Tom Blanton, urge the president to issue a first-day memorandum to all executive departments, agencies, and independent agencies directing them to take the following actions:
“(1) Within six months each Senior Agency Official for Records Management, working with the National Archives and Records Administration (NARA), shall develop and implement agency-wide records management training for all agency employees and contractors performing agency functions.
(2) Within six months each Chief Technology Officer or their equivalent shall report to the agency head on the status of their agency’s record keeping systems and the progress they have made toward satisfying the requirements of the August 24, 2012 memorandum issued by the Office of Management and Budget, “Managing Government Records Directive.”
(3) Within nine months each Inspector General, working with each Senior Agency Official for Records Management, shall report to the agency head on steps the agency has taken with respect to subparagraphs (1) and (2).
(4) Within 12 months the head of each agency or designated senior agency official shall report to the President on the status of the agency’s compliance with the August 24, 2012 OMB memorandum.
(5) Within 12 months, and every two years thereafter, each agency shall develop an open records plan, with public engagement, that identifies the key steps the agency will take to ensure ongoing compliance with all federal records requirements.”
NYU Law School’s Brennan Center for Justice used a series of targeted FOIA-requests to help uncover how much reliance on secret law has expanded post 9/11, and to show how it “persists even in areas where we thought the secrecy had ended.” The report, compiled by Brennan Center co-director Liza Goitein and highlighted in a recent New York Times op-ed, notes that “at least 74 [Justice Department Office of Legal Counsel] O.L.C. opinions from 2002 to 2009 on national security issues, including intelligence gathering and the detention and interrogation of suspected terrorists, remain classified. Similarly, despite the disclosure of many FISA court opinions following Edward Snowden’s revelations, new information from the Justice Department indicates that about 30 significant opinions remain secret.”
The Washington Post’s Ellen Nakashima notes that the still-secret OLC material “includes memos documenting advice given over the phone to agencies.”
The creeping practice of agencies seeking unwritten advice from OLC is controversial. In November 2015 two of the government’s top lawyers told American Bar Association Standing Committee on National Security Law attendees that agencies are shying away from OLC opinions in favor of seeking “informal” and unwritten advice out of concerns the OLC opinions will be sought under the FOIA. The CIA’s General Counsel Caroline Krass told the audience, and acting OLC head Karl Thompson confirmed her assessment, that FOIA has “served as a deterrent to some in terms of coming to the office to ask for a formal opinion.” (Goitein and the ACLU’s Brett Max Kaufman forcefully rebutted Krass and Thompson’s assertions in a series of postings for Just Security that same month).
The House Oversight and Government Reform Committee sent a letter to the DOJ in March 2016 “seeking, among other things, documents showing how many FOIA requests for OLC opinions OLC received between 2005 and 2015, and “Documents sufficient to show whether OLC, or the Department more generally, utilizes any automatic program, such as Capstone, for Federal Records Act purposes.” As far as this author knows, no response has been published.
The data freed by the Brennan Center’s FOIA requests to the State Department also revealed that the “42 percent — almost half — of all international agreements and treaties dating from 2004 to 2014 have not been published. The Case Act of 1972 requires that international agreements be made public, but it allows for certain exemptions, such as for national security purposes.”
Every CRS Report – for Free
Daniel Schuman, policy director for Demand Progress, has successfully spearheaded a campaign to make every Congressional Research Service report available online for free. The site currently houses 8,255 reports. In an article explaining what motivated him to build the useful website, Schuman says, “widespread access to CRS reports increases the reservoir of knowledge available to the American people. If the first result for any substantive internet search is Wikipedia, shouldn’t it contain the knowledge that the American people spent $100 million annually to refine? CRS reports can help make constituent communications to congress better by helping to provide a useful context for people who have questions about matters of policy.”
FOIA Release Reveals Fears U.S. Could be Implicated in War Crimes in Yemen
Documents obtained by Reuters through the Freedom of Information Act and dating from May 2015 through February 2016 show State Department officials’ private concern that following-through on a $1.3 billion arms sale to Saudi Arabia while it carries out air strikes against Yemen that have killed thousands of civilians could implicate the US in war crimes. Specifically, the heavily-redacted documents “reveal new details of how the United States pressed the Saudis to limit civilian damage and provided detailed lists of sites to avoid bombing, even as officials worried about whether the Saudi military had the capacity to do so.” One State Department official said in an October 2015 meeting, “The strikes are not intentionally indiscriminate but rather result from a lack of Saudi experience with dropping munitions and firing missiles.”
FOIA and the Football War
On July 15, 1969, Honduran radio networks, using the country’s recent World Cup qualifier loss to El Salvador as pretext for violence, encouraged listeners “to grab machetes or other weapons and move to the front to assist the army” in its 4-day war against their Salvadoran neighbors. The Archive’s Nate Jones recently joined the Wilson Center’s Sports in the Cold War podcast to discuss how the contentious match combined with political tensions over immigration and an ill-defined border to spark the so-called “The Football War” – and how declassified Central Intelligence Bulletins and President’s Daily Briefs obtained through the Freedom of Information Act provide a vivid day-by-day account of the incident. Listen here.
Jones is the author of the new book Able Archer 83: The Secret History of the NATO Exercise that Almost Triggered Nuclear War and will be giving a special presentation on his research at the Wilson Center today at 3PM, with commentary by Archive director Tom Blanton. Published this month, Able Archer 83 tells the story of this dangerous nuclear incident, 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. The book vividly recreates what the National Security Agency described as “the most dangerous Soviet-American confrontation since the Cuban Missile Crisis.”
CIA Overreach: 22-Year-Old FOIA Request Needlessly Withheld in Full
NARA, at the CIA’s urging, recently withheld in full a 22-year-old FOIA request for a document that was very likely released in full in 1999 by the Eisenhower Library. The CIA’s denial of one of the requested documents – from 1958 – raises serious doubts about the quality of the declassification review it provides for records at NARA. It also raises questions about the role of the National Archives in the declassification of archival records. The National Security Archive’s Dr. William Burr has a proposal that would go a long way helping limit instances of such senseless secrecy: “Such problems could be managed, however, if archivists at the National Declassification Center, which is lodged at NARA, had the authority to intervene when they believe that an agency decision needs to reconsider its judgments. In that case, an archivist could ask for a justification of the decision. If she is not persuaded, an NDC committee could undertake a quality review to decide whether the agency is making a reasonable case and order further review if necessary. The NDC is unlikely to take such action on its own; it would probably require a decision by the Archivist of the United States or even the Information Security Oversight Office to grant such authority.”
TBT Pick – “Fujimori’s Rasputin”
This week’s #tbt pick is a 2000 posting of declassified documents on Vladimiro Montesinos – referred to as “Fujimori’s Rasputin.” The documents show that as early as October 1990, US Army intelligence analysts were already referring to Fujimori as “in the hip pocket of the National Intelligence Service (Servicio Inteligencia Nacional –SIN),” and as “particularly influenced by Vladimiro Montesinos.” In a report titled “Who is Controlling Whom” high-level Peruvian army officers described to US intelligence analysts this “extraordinary…situation in which the intelligence apparatus is in effect running the state.”
Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.
Recently the National Archives sent the National Security Archive a decision letter on a Freedom of Information Act request that the present author filed in 1994. It might not be the Archive’s oldest request at NARA that remains in play, but it is certainly among them. The CIA’s denial of one of the requested documents raises serious doubts about the quality of the declassification review it provides for records at NARA. It also raises questions about the role of the National Archives in the declassification of archival records.
The request was for documents from the State Department decimal files on Anglo-American nuclear relations, including basing issues, during the late 1950s. Many of the documents requested had been declassified during the 1990s, but some agencies take their time in reviewing records and in this instance the Central Intelligence Agency was the laggard. According to the National Archives’ letter, the CIA had withheld in its entirety tab 40B from box 3199 of the decimal file series for 1955-1959. The withdrawal sheet for tab 40B describes it as a 7-page report with an attachment described as “Fr Murphy, et al. to the President, et al.,” dated 7 June 1958, classified top secret. According to the National Archives’ letter, the CIA’s exemption was based on the FOIA’s statutory exemption (B) (3), in this case 50 U.S.C. 403 (g), “which protects the organization and staff of the Central Intelligence Agency.”
It is difficult to be sure exactly what the withheld document is because it is stored in a vault at the National Archives in College Park, MD. Nevertheless, the subject matter of the decimal file in which the withdrawn document had once resided, the fact that it was signed by Deputy Under Secretary of State Robert Murphy, and that the addressee was President Dwight D. Eisenhower strongly suggest that Tab 40B is the text of the agreement on “Procedures for the Committing to the Attack of Nuclear Retaliatory Forces in the United Kingdom,” which Murphy had negotiated with Sir Patrick Dean, a British career diplomat, who was then chairman of the UK’s Joint Intelligence Committee. The addressees on that agreement were the President and the Prime Minister and it is signed by Murphy and Dean. The agreement was declassified in full by the Dwight D. Eisenhower Library in late 1999.
The purpose of the agreement was to assure that if war with the Soviet Union broke out, a “mutually understood procedure” would assure that British nuclear forces and U.S. nuclear forces based in the United Kingdom went into action “with the minimum delay.” At the behest of President Eisenhower and British Prime Minister Harold Macmillan, Murphy negotiated the arrangements with Dean (who probably was the lead British negotiator because he had all of the necessary security clearances and “need to know” on sensitive nuclear and intelligence issues). During the negotiations, the CIA was kept informed, but played no role otherwise. The Agency was kept in the loop because the agreement provided a role for U.S. intelligence authorities in the event that the interagency CIA-chaired National Indications Center received intelligence information that provided warning of an attack. If intelligence received an advance “strategic warning,” the U.S. would pass the information to both the British and the Canadian Joint Intelligence Committees. That was consistent with the Tripartite Alert procedure that London, Ottawa, and Washington had negotiated in 1957. In the event of a surprise attack or tactical warning that a bomber or missile strike was on its way, presumably the British and the Canadians would have already been aware of the circumstances.
The rest of the agreement relates to procedures for the use of nuclear weapons. While incoming Prime Minister Macmillan had, like his predecessors, sought a commitment by Washington on the use of U.S. nuclear forces based in the United Kingdom, Murphy-Dean was not a binding agreement. A joint decision to use forces would depend on “the circumstances at the time.”
The Murphy-Dean agreement has been the subject of historical research and writing and declassification requesting. What was likely the first scholarly discussion was by Stephen Twigge and Len Scott in their book, Planning Armageddon: Britain, the United States and the Command of Western Nuclear Forces, 1945-1964 (Amsterdam: Harwood Academic Publishers, 2000). Twigge and Scott had access to a partly declassified copy of the agreement at the Eisenhower Presidential Library in Abilene, KS; from that version, U.S. government reviewers had excised “Formerly Restricted Data,” such as references to U.S. nuclear weapons that had been made available to the Royal Air Force. The Interagency Security Classification Appeals Panel (ISCAP) released a somewhat fuller version (although with some variations in text) of the agreement during the 1990s, but significant portions, including sections on tactical and strategic warning procedures, remained classified as FRD. The brief passages concerning the British and Canadian intelligence committees were declassified in their entirety. In any event, the U.S. excisions were moot because Twigge and Scott found material in the British National Archives that enabled them to reconstruct the agreement in its entirety (including subsequent amendments) and publish it in their book.
Unbeknownst to Twigge and Scott (and certainly to the present writer), in late 1999, by the time their book had gone to press the agreement had been declassified in full. The copy at the Eisenhower Library is the 6-page signed agreement (the 7-page withheld copy in the National Archives probably includes a cover memorandum to the Secretary of State or the President perhaps with a recommendation to approve the attached agreement). In 1999, when the Defense Department and the Energy Department reviewed the document from the Eisenhower Library they no longer had objections to full declassification, probably because they were no longer treating the fact that the United States had deployed nuclear weapons to the United Kingdom as secret under the Atomic Energy Act. Apparently no other agency, including the Central Intelligence Agency, lodged any objections to declassification of the brief passages of intelligence interest.
CIA declassifiers were very likely unaware of the declassification history when it reviewed this writer’s 1994 request and exempted tab 40B in its entirety. Yet, if indeed the exempted document is the Murphy-Dean agreement, why the Agency’s declassification reviewers felt compelled to deny it is perplexing. Worse still, there are plainly no direct references to the CIA’s “organization or staff,” which was the declared basis for the denial. In any case, the Agency could easily have excised the few lines mentioning the National Indications Center and the British and Canadian intelligence committees; they are a minor element of the text. By denying the report in its entirety, the CIA has significantly exceeded its authority; the content of the Murphy-Dean agreement has nothing to do with classified intelligence information, it relates only to intelligence sharing arrangements that have been declassified for years. If the CIA has indeed denied the Murphy-Dean agreement, it places the quality of its declassification review process under heavy doubt because the decision is so unsound.
This is hardly the first occurrence of an incorrect classification decision concerning an archival document. What makes this kind of problem possible is that the National Archives serves as the executor of agency decisions, yet its staff has no power to lodge an objection, much less prevent or discourage agencies from overreaching. Such problems could be managed, however, if archivists at the National Declassification Center, which is lodged at NARA, had the authority to intervene when they believe that an agency decision needs to reconsider its judgments. In that case, an archivist could ask for a justification of the decision. If she is not persuaded, an NDC committee could undertake a quality review to decide whether the agency is making a reasonable case and order further review if necessary. The NDC is unlikely to take such action on its own; it would probably require a decision by the Archivist of the United States or even the Information Security Oversight Office to grant such authority.