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CIA Overclassification Jeopardizes Hmong Veterans’ Fight for Military Burial

July 20, 2017

CIA Overclassification Jeopardizes Hmong Veterans’ Fight for Military Burial

Journalist James Eli Shiffer has a must-read piece in the Minneapolis StarTribune on Hmong veterans who fought for the United States during the Vietnam War and are currently fighting for the right to be buried with “military honors in a national cemetery.” But the CIA is refusing to declassify documents about the Agency’s proxy secret army, “or even acknowledge that they exist” – and, in the process, denying Hmong veterans the paperwork they need to be buried with military honors.

The CIA’s official history on CIA and Surrogate Warfare in Laos, published in redacted form in 2009, admits that it commanded many Hmong soldiers to fight in Vietnam, yet the CIA continues to Glomar – neither confirm nor deny – FOIA requesters seeking the names of those on the agency payroll, arguing it would endanger sources and methods.

Shiffer notes that this indignity towards “thousands of other Lao and Hmong veterans demonstrates a human cost of the runaway system of classification that perpetuates federal secrecy.” (Shiffer also has a good companion article with Matt DeLong on “What you need to know about how government secrets are made.”)

U.S. Rep. Tim Walz said of the CIA’s decision, “How in the hell is our safety at stake by trying to release those names or at least telling us they don’t have them?”

Even though a 2009 Executive Order says no official secret can remain classified forever – and even though the existence of the Hmong soldiers has already been declassified by the Agency – National Security Archive director Tom Blanton says in practice, “All it takes is one person at CIA to say, ‘Wait a second, that Hmong army, that was a covert operation.’”

The end result is the Hmong veterans are left in limbo. “A box of records might exist, perhaps in the CIA headquarters or the vast warehouse of the National Archives, that, once opened, could document what everyone already knows to be true.”

Shiffer’s article also gives a good summary of the issues facing the National Declassification Center. Of the multiple agency page-by-page equity reviews of the historical records housed at the NDC, director Sheryl Shenberger says, “Sometimes seriously it is literally one paragraph that’s stopping 80 pages from being released.”

FCC Incorrectly Says Reviewing Net Neutrality Complaints in Response to FOIA “Too Burdensome”

Of overturning net neutrality rules, Federal Communications Chairman Ajit Pai has said that “net neutrality rules were a response to ‘hypothetical harms and hysterical prophecies of doom’ and that there was no real problem to solve.”

The National Hispanic Council argues that the release of the 47,000 complaints at issue in their FOIA request will likely contradict these assertions. But the FCC is stonewalling their release, saying that reviewing the more than 40,000 complaints about overturning net neutrality rules it has received since June 2015 would be “too burdensome.”

The FCC’s claim that reviewing the 47,000 complaints would be unreasonably burdensome is wrong. The Justice Department’s own guidance makes clear that reviewing a large number of records does not, in and of itself, make a request burdensome. The key issue is whether or not the requester has worded the FOIA request to enable the FOIA officer to easily determine what records are sought. In this instance, the FOIA requester has done precisely that.

Case law also supports the requester’s right to ask an agency to conduct a time-consuming search provided the records are well-defined. In Shapiro v. Cent. Intelligence Agency, 170 F. Supp. 3d 147, 154 (D.D.C. 2016), the court found, “Regardless of how onerous it might be to locate them, there can be no dispute about which items are being requested.”

White House Military Office Paying $130,000 a Month for Trump Tower Lease

A FOIA request filed by the Wall Street Journal and released by the General Services Administration shows that the White House Military Office – which provides military support for White House functions and is charged with carrying the “nuclear football” –  took out a $2.39 million lease to rent a unit in Trump Tower from April 11, 2017, to September 30, 2018. This figure does not include the money Secret Service, which is a component of the Department of Homeland Security, spends protecting the president’s property (the agency’s 2018 budget requests an additional $25.7 million to secure the tower.)

Trump, perhaps unaware of the expense irrespective of his presence at his New York home, has not visited the tower since inauguration, repeatedly citing cost as the reason; “Going back is very expensive for the country.”

Mar-a-Lago Records to be Released in September

The Department of Homeland Security will release the visitor logs for President Trump’s Mar-a-Lago resort by September 8, according to a court order filed on July 14, 2017, by federal judge Katherine Polk Failla.

The order is in response to a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW).

The government has until the end of September 2017 to file declarations concerning the White House visitor logs; DHS claims there are no such records for Trump Tower since the President did not visit the property during the time period covered by the request.

Access to the Obama visitor logs helped break a number of news stories, including on the influence of lobbyists. One story revealed that then-CEO of Exxon, Rex Tillerson, visited the Obama White House at least 20 times in 2014 to advocate against Russia sanctions. In another example, the logs raised questions about the clout of high tech firms, particularly Google, in the Obama administration; one article on “Google’s Remarkably Close Relationship With the Obama White House” showed that Google lobbyist Johanna Shelton visited the White House no fewer than 128 times, far more than her peers from other tech companies, and that “Between January 2009 and October 2015, Google staffers gathered at the White House on 427 separate occasions.”

CIA Files at Risk

The CIA is positioned to begin destroying a large number of potentially important documents, including classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.”

As reported in the Daily Beast, the National Archives has tentatively approved a CIA records retention schedule to destroy information that is more than 30 years old. In addition to the files listed above, the Agency is also attempting to destroy files related to CIA investigations into alleged unauthorized releases of classified information (which the Agency is attempting to change from a permanent to temporary designation).

The National Security Archive, with OpenTheGovernment, Defending Rights & Dissent, and Demand Progress submitted comments to NARA acting director of records appraisal and agency assistant, Margaret Hawkens, requesting her agency do just that, and “reconsider its pending approval of the CIA’s proposed schedule, N1- 263-13-1, until NARA can better assure the public that records of permanent historic value will not be allowed to be destroyed by the CIA.”

A by-no-means-thorough list of the CIA’s destruction of records includes:

This also isn’t the first time the CIA has submitted records management and records schedule plans that ring alarm bells. In 2016 the Agency – after public outcry – was forced to withdraw its plan to destroy agency emails of all except its top 22 employees.

FOIA Federal Advisory Committee

The FOIA federal advisory committee met today (video available here, transcript to be posted in 30 days), with a presentation by National Archives chief records officer Laurence Brewer and updates from the three subcommittees. Of note in today’s meeting was committee members expressing concern that the Office of Management and Budget has yet to act on the recommendation that it update its outdated (from 1987!) FOIA fee guidelines to all agencies on when and how they can charge fees, which is also missing a key word.

$350,000 FOIA Settlement to National Security Archive Spurred CIA IG Investigation

blistering 2008 Central Intelligence Agency legal settlement of $350,000 to the National Security Archive’s pro bono lawyers, paid after losing a Freedom of Information Act case, led to the opening of an Inspector General investigation to review whether the CIA violated “policy and federal law” with respect to the FOIA.

The IG report, released in response to a FOIA request filed by Jason Leopold, reviews an anonymous allegation by a CIA employee of FOIA “missteps” at the Agency.  The IG report investigated how the Agency treated National Security Archive FOIA requests, including multiple reversals –some “on its own initiative” and some “reversed by the court several times” on whether the Archive should be treated as a news media organization, and pay fewer FOIA fees.  This CIA FOIA mismanagement caused the CIA “great confusion,” a large settlement bill, and a tongue lashing by DC District Judge Gladys Kessler.

Mellon Foundation Helps Stand Up Email Preservation Task Force

The Andrew W. Mellon Foundation is helping stand up an international task force to develop a framework to address challenges preserving email, a subject near and dear to the National Security Archive. The Foundation has also produced a short video – drawing on Archive resources – to demonstrate how email preservation was critical in allowing historians understand the Iran-Contra Affair, “one of history’s first scandals involving electronic correspondence.” Despite its importance, as Kristen Ratanatharathorn notes, “rigorous cataloguing of email communication remains the exception, not the rule. Instead, those trying to understand the recent historical record are, too often, left feeling the way many of us do with our personal inboxes: searching in vain for that one elusive message.”

Contact information for those interested in getting involved in the task force can be found here.

TBT Pick – Israel Crosses the Threshold II

Today’s #tbt pick is a 2014 posting from our Nuclear Vault on the Nixon administration debates during the emergence of the Israeli Nuclear Program.  Included are documents on the DOD’s Paul Warnke warning in early 1969 that the Israeli Nuclear Program is “the single most dangerous phenomenon in an area dangerous enough without nuclear weapons.”

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Happy FOIA-ing!

Tomorrow is Deadline to Submit Comments to Stop CIA Plan to Destroy Important Files

July 18, 2017
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The CIA is positioned to begin destroying a large number of potentially important documents, including classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.”

As reported in the Daily Beast, the National Archives has tentatively approved a CIA records retention schedule to destroy information that is more than 30 years old. In addition to the files listed above, the Agency is also attempting to destroy files related to CIA investigations into alleged unauthorized releases of classified information (which the Agency is attempting  to change from a permanent to temporary designation). This is is a departure from current guidelines, which mandate that leak-related files must be saved permanently.

The public can submit comments to the National Archives ( urging it to reconsider its pending approval of the CIA records schedule until tomorrow, July 19.

Nate Jones, the National Security Archive’s FOIA project director, told the Daily Beast’s Aliya Sternstein that the CIA’s plan was of serious concern because history has shown that the CIA is “too eager to destroy their records.

Malcolm Byrne, the Archive’s Iran Project Director, pointed to recent reports that the Agency destroyed records on its involvement in the 1953 coup when it moved offices on the incorrect belief that there were copies of the records elsewhere. Byrne argues, if “CIA disinterest in some quarters about preserving records, human fallibility, and similar horror stories are a guide, then logic dictates there are plenty of grounds for concern – or at a minimum meaningful oversight, which is always a concern in these days of slashed budgets.”

The solution is for NARA and the CIA to err on the side of preservation.

The CIA could have given a bit more justification to make its case.

The National Security Archive, with OpenTheGovernment, Defending Rights & Dissent, and Demand Progress submitted comments to NARA acting director of records appraisal and agency assistant, Margaret Hawkens, requesting her agency do just that, and “reconsider its pending approval of the CIA’s proposed schedule, N1- 263-13-1, until NARA can better assure the public that records of permanent historic value will not be allowed to be destroyed by the CIA.”

The groups argued there are concerns that the CIA could use the records schedule “to allow the destruction of crucial documentary evidence of the CIA’s activities.” The groups also called it unwise to allow the designation of CIA declassification referral files as “temporary” after 30 years. “FOIA and Mandatory Declassification Review requests to NARA (sometimes of CIA records) occasionally take longer than 20 years to be completed.  Declassification referral ‘paper trails’ also do have research value to find and request re-reviews of documents, even if they are no longer needed for CIA business purposes.”

With the destruction of the Iran Coup documents in mind, the signatories also request NARA “take a closer examination of the CIA’s request to destroy some records based on the assertion that the information is ‘[c]aptured elsewhere in permanent records’ in order to assure that this is in fact the case.'”

The CIA files in question likely have significant research value. The current order on declassification states that “No information may remain classified indefinitely.” NARA must guard that no previously secret, historically valuable information is improperly destroyed before the public can view it.

Submit your own comments to

New Documents about 1953 Iran Coup Enliven Regime Change Debate

July 17, 2017

Iranian Prime Minister Mohammad Mosaddegh, overthrown in the 1953 coup.

This article was originally published by the Atlantic Council

Sixty-four years on, the effects of the 1953 coup in Iran continue to resonate inside Iran and outside.

Last month, the State Department released a highly anticipated official collection of declassified documents covering US policy toward Iran from 1951-1954.  While it did not change the basic understanding of that period, it did provide more detail about who was pushing for regime change on both the US and Iranian sides, what they feared and how presumptuous they were.

Coincidentally, Iran is nosing its way back into public awareness by means of a number of renewed calls by neoconservative op-ed writers for regime change in the Islamic Republic.

In one sense, this is mere coincidence. The volume of documents, part of the State Department’s venerable Foreign Relations of the United States series, has been in the works since the early 1990s.  In 1989, the volume that was supposed to be the official word on the coup period turned out not to have a single reference to Western involvement in the overthrow of Prime Minister Mohammad Mosaddegh.  Public scandal ensued and the State Department promised to produce a more reliable account.  It took more than a generation to accomplish.

For several years, US and British government refusal to declassify most of what was in their files held things up.  But that was mainly for reasons of spy craft – an insistence on holding onto anything having to do with sources and methods.  The British also demanded (and continue to this day) that their part in the coup not be acknowledged at all. By contrast, two US presidents have admitted to America’s role.

Hopes for release edged upwards under President Barack Obama – one of the two aforementioned presidents – but his Secretary of State, John Kerry, decided after concluding the contentious 2015 nuclear deal with Iran that releasing records on a topic that remained so sensitive for many Iranians might give hardliners in Iran a pretext to attack the accord.  So the Department continued to sit on the volume.

In one of the great ironies of this extraordinary political period, it was the administration of Donald Trump – not known as champions of transparency – that finally consented to release the current volume.  Officials from different agencies this author has spoken to will not even speculate on the record about the reasons but do acknowledge that it was “surprising” how quickly things moved from the original April 2017 internal memo from the Historian’s Office proposing release, to the mid-June decision to publish.

Pro-Shah crowds on streets of Tehran, August 1953.

From the comfort of the private sector, speculation is easier.  Suffice to say it seems highly likely that, at a minimum, the president, who campaigned on promises to tear up the nuclear agreement, and his secretary of state, who also thinks it is a terrible deal, would not have the same qualms as Obama or Kerry on this score.

At over 1000 pages, the volume consists of previously closed files from the State Department, the CIA and the National Security Council (NSC) that complement a small universe of previously known materials on the coup period.

The documents mainly provide a backdrop of political reporting and analysis, a smattering of reports during the coup itself and more assessments of the aftermath.  The analyses start with attempts to understand the state of play in Iran during this critical period.  The title of the first section identifies Mosaddegh as the chief topic of interest but the tall shadow of the Soviet Union towers over most of the reports.  One of the strengths of the collection is that it covers not just the analytical arms of each agency but operational divisions as well, such as CIA’s Directorate of Plans, and the offices of top administration officials.  The result is a wide range of perspectives that dovetail well with previously released materials.  (See, for example, the National Security Archive’s e-book, “CIA Confirms Role in 1953 Iran Coup,” August 19, 2013.)

Interestingly, the most important known record of the coup, a 200-page internal CIA history written in early 1954, has never been declassified, but The New York Times got its hands on a leaked copy and posted it on its web site in 2000.  The author of the history was Donald Wilber, one of the architects of the operation.  The new FRUS volume contains only one short appendix from his study.

Oil nationalization is naturally another focus of attention – since that was the act that started the British, and later Americans, down the road to Mosaddegh’s ouster.  The new materials are sure to add to the ongoing scholarly debate over whether the coup was more about strategic fears — the Soviet threat — or crass commercial interests.

CIA and State Department assessments also review the actions and thinking of a number of key individuals starting with Mosaddegh but including the Shah, Mosaddegh’s replacement Fazlollah Zahedi and other pro-Shah, military and opposition figures.

Particularly interesting are some of the assessments of senior Islamic clerics.  Ayatollah Abolqasem Kashani, who was also very active in politics – at one point serving as Speaker of the Majles – appears as someone, in the eyes of the analysts, who has a worrisome capacity to create problems for US policy objectives.  American officials variously fret about his forming an “unholy alliance” with Mosaddegh or, improbably, siding with the Communist Tudeh Party.  Such was the level of concern at the time that almost any combination of political forces seemed plausible – and all were likely to be bad for Washington.

Of course the Tudeh itself appears throughout the files.  The Communist threat was uppermost on the US list of concerns, not as high for Great Britain.  A few pieces of British analysis pop up occasionally in these records and are useful as points of comparison.

For years, the US government has bowed to London’s wishes to keep their participation under wraps.  But indications of their involvement slip through.  For instance, an editorial note on page 611 reveals that Kermit Roosevelt learned on July 1, 1953 that the British Prime Minister “has approved the plan.”  The note goes on to imply, without stating it directly, that the plan indeed has to do with the coup. Here, Wilber’s history comes in handy – it explicitly confirms July 1 as the date Winston Churchill gave his approval for Mosaddegh’s overthrow.

As indicated, there is relatively little about the unfolding of the coup itself. Several reporting telegrams are reproduced, some of which include extremely interesting nuggets about events on the ground, and even point fingers after the botched first attempt of August 14-15, although they don’t reveal much about shifting tactics in the wake of that initial failure.

Tragically, most of the operational cables for the key timeframe of August 16-19 no longer exist. A source note to the volume explains that CIA officers destroyed a large number of records in the early 1960s as part of a routine “office purge,” and allegedly in the belief that a backup file existed. In fact, a microfilm set had been made and some of the cables in this collection were transcribed from it several years ago originally for use in the 1989 FRUS volume.

Where is that backup set now?  The source note provides the answer in what may be the most inexplicable statement in the entire volume: “The microfilm was later destroyed in accordance with a National Archives approved records schedule.”  How many other irreplaceable files about other historically significant or controversial intelligence operations have met the same “approved” fate?

Fortunately, the leaked internal history goes into deep detail about the operation. On the other hand, as useful as that is, there is no substitute for contemporaneous accounts, written or dictated in the heat of the moment, which are the most likely to offer an unvarnished picture of events and officials’ thinking. Wilber, the author of the 1954 internal history, was one of the operation’s planners but was not in Tehran at the time so his account is often one or two steps removed from the immediate action.

Kermit Roosevelt, chief of CIA’s Near East operations division, and on-the-ground manager of the U.S.-U.K. coup plan.

Some of the most interesting new additions to the story are the notes of meetings that took place after the coup. For instance, Kermit Roosevelt met with senior CIA officials on August 28 and went into some depth about what happened and why he made some of the decisions he did – crucially, refusing to close up shop when it looked like the whole operation had gone south. The volume includes the cable from CIA headquarters advising Roosevelt to evacuate his team. Instead he stayed in Tehran and worked with a number of Iranians to put the operation back on track.

One of the questions about this episode that has gotten significant play in recent years is whether the coup was an American and British venture or whether Iranians were the ones who ultimately pulled it off. Not surprisingly for such a significant – even emotional – issue, opinions are sharp on all sides. Already, “I-told-you-so” articles, web postings and interviews have appeared, insisting the new materials conclusively support a given interpretation.  More information does not always bring greater clarity.

The fact is that the full story of the coup will never be told, at least not to everyone’s satisfaction. No significant troves of contemporaneous Iranian documents are likely to appear after this long, although one can always hope.  The British government refuses to open its undoubtedly rich archive to public scrutiny. A large collection of Tudeh Party materials is under lock and key in the Moscow archives.  When this author asked the head of one those archives some years ago about getting access, he was told he would need the Tudeh’s permission.  Even the American records – the ones that still exist – have not fully been released although we’re getting close to the bottom of the file cabinet.  At least nine CIA records that didn’t make it into the volume are specifically identified and marked as “not declassified.” Over 100 more that are included have bracketed text indicating where security deletions have been made.

So, the debates will continue, but they will now be a bit more informed, at least on the American side.  Meanwhile, my organization, the National Security Archive, has begun filing Freedom of Information Act requests for the expurgated materials.

$350,000 FOIA Settlement to National Security Archive Spurred CIA IG Investigation

July 13, 2017
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Should have just released the documents…

A blistering 2008 Central Intelligence Agency legal settlement of $350,000 to the National Security Archive’s pro bono lawyers, paid after losing a Freedom of Information Act case, led to the opening of an Inspector General investigation to review whether the CIA violated “policy and federal law” with respect to the FOIA.

The IG report, released in response to a FOIA request filed by Jason Leopold, reviews an anonymous allegation by a CIA employee of FOIA “missteps” at the Agency.  The IG report investigated how the Agency treated National Security Archive FOIA requests, including multiple reversals –some “on its own initiative” and some “reversed by the court several times” on whether the Archive should be treated as a news media organization, and pay fewer FOIA fees.  This CIA FOIA mismanagement caused the CIA “great confusion,” a large settlement bill, and a tongue lashing by DC District Judge Gladys Kessler.

The Deep (ly confused) State.

Kessler found that the CIA “has twice made highly misleading representations to the Archive, as well as to [the] Court,” explained that the CIA’s position was “truly hard to take seriously,” characterized the CIA’s conduct as “extraordinary misbehavior,” concluded that the CIA’s “past actions strongly suggest that their alleged misconduct will recur,” and enjoined the CIA from illegally denying the Archive’s news media fee status.

According to the newly released IG report, in addition to losing the court case to the Archive and paying a $350,000 settlement, the CIA also began an “added layer of review” for Archive FOIA requests which resulted in “no requests from the [National Security Archive being] approved for release between December 2008 and March 2009.”

Despite the fact that “[f]our of seven staff officers interviewed were aware that requests from the NSA were treated differently than other requests,” the IG report found “no information to support the allegation of deliberate malfeasance or dereliction of duty” in the CIA’s processing of FOIA requests.  The CIA had stopped conducting its additional, delaying FOIA review, before the IG report was written.  Nonetheless, the report concluded by noting the CIA’s “regulatory and statutory violation” of failing to process FOIA requests by the statutory 20 day deadline.

Attorneys Gregory G. Katsas, Jeffrey A. Taylor, John R. Tyler, and

The CIA’s “extraordinary misbehavior.” came with a price tag.

Heather R. Phillips argued this case for the United States Government.  CIA public FOIA liaison, Scott A. Koch, even sent the Archive a letter to “sincerely apologize” for its “administrative mistake[]” of denying news media status even after it assured the court it would follow the law.  But, then, on the next business day, the CIA again failed to grant the Archive news media status, in direct contravention of the “sincere apology” letter they filed with the court.  Pat Carome of WilmerHale LLP served as counsel to the Archive which recieved $20,000 of the settlement.

And in a final coda to the CIA’s lack of attention to detail to FOIA matters, the IG report misidentified the National Security Archive as the National Security Archives.

FOIA Finds 28 Trump Deregulation Team Members with Potential Conflicts of Interest: FRINFORMSUM 7/13/2017

July 13, 2017

Trump’s Deregulation Teams

Freedom of Information Act (FOIA) requests, interviews, and public records helped The New York Times and ProPublica identify 71 appointees to the Trump administration’s deregulation teams at agencies across the government, including 28 members with potential conflicts of interest. The Times notes, “Some appointees are reviewing rules their previous employers sought to weaken or kill, and at least two may be positioned to profit if certain regulations are undone.”

Highlights of the findings include:

  • Two deregulation team members at the Education Department worked previously for pro-charter organizations;
  • Fifty-Eight visits by oil and gas industry representatives to the appointees at the Interior Department between February and May; and
  • The EPA rejected FOIA requests to release the appointment calendar of its top deregulation official, while the Defense Department and Homeland Security released many of the titles of appointees, but not names.

In news that will not surprise seasoned FOIA requesters, the investigative efforts have found the process of obtaining information on the teams to be “scattershot. Some agencies have been soliciting public feedback, while others refuse even to disclose who is in charge of the review. In many cases, responses to public records requests have been denied, delayed or severely redacted.”

FBI Special Counsel Budget Will be Secret

The Justice Department will not be releasing the proposed budget submitted by Special Counsel Robert Mueller. The Washington Post reports that “the regulation under which Mueller was appointed does not specifically detail how the special counsel must disclose expenses to the public. It requires only that Mueller ‘be provided all appropriate resources by the Department of Justice.’” DOJ officials say that they would release expenditure reports every six months. The first report is due to be published “sometime after Sept. 30.” President Trump has previously complained on Twitter that the “total hoax” Trump-Russia collusion investigation is a “taxpayer funded charade.”

Expired Body Armor

Documents obtained by the Senate Judiciary Committee show that “more than 1,400 law enforcement officers with the U.S. Marshals Service are wearing expired body armor, despite months of internal warnings.” The documents detail that over a third of operational employees at the agency have body armor that expires in 2016 and 2017. A spokeswoman said the agency has plans to replace all expired vests in the next three months.

The first agency employee that provided documentation to the Judiciary Committee was taken off his active duties and “given different responsibilities, prompting Grassley to complain to the agency that ‘this type of behavior is Retaliation 101, and it interferes with congressional oversight activities.’”

The Marshals’ incident recalls a 2005 story reporting, thanks to FOIA, that “the Marine Corps issued nearly 10,000 troops in Iraq body armor that ballistics experts rejected because tests revealed life-threatening flaws in the vests. The Corps recalled 5,277 vests made by Point Blank Body Armor when faced with the imminent publication of an eight-month probe into the purchase and distribution of the vests.”

Two U.S. Attorneys Release Resignation Letters

Two former U.S. Attorneys – Tom Delahanty of Maine and Mike Cotter of Montana – shared their resignation letters with the Burlington Free Press, saying there was nothing in the letters that should prevent their public release. Cotter’s March 10, 2017, letter stated: “Today at 12:45 p.m. MST I was informed that you Mr. President, ordered that I resign my position as United States Attorney for the District of Montana effective 5 p.m. MST today. Accordingly, I hereby submit my resignation.”

The Burlington Free Press reported in April that the Justice Department refused to release the resignation letters of the U.S. attorneys who “left their posts at the request of the Trump administration” in March. The Justice Department argued that the letters must be withheld because they were “inherently personal” and were not appropriate for discretionary release. Former Justice Department lawyer Allan Blutstein said the DOJ denial letter and the speed with which it was sent, “less than 10 days after receiving the request — suggest department staff conducted no search for responsive records and relied instead on the belief that all the resignation letters are exempt from disclosure.”

Blocked Twitter Users Sue Trump

Twitter uses that have been blocked by President Trump are suing Trump, White House press secretary Sean Spicer, and Trump’s social media director Dan Scavino, for violating their First Amendment rights. The suit, filed in the Federal District for the Southern District of New York, argues that Trump’s Twitter use amounts to a public forum, and a government official cannot block them from such. The suit is being brought by the Knight First Amendment Institute and raises “cutting-edge issues about how the Constitution applies to the social media era. They say Mr. Trump cannot bar people from engaging with his account because they expressed opinions he did not like, such as mocking or criticizing him.”

FOIA Advisory Committee Meeting July 20

The next Federal FOIA Advisory Committee meeting is July 20 at 10 AM in the McGowan Theater at NARA (register here). Topics expected to be discussed include 508 compliance and improving FOIA searches.

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, and the Committee has been struggling with the topic since its inception. In theory, all documents created electronically by the US government since 1998 should already be compliant, but many agencies continue to argue that making documents 508 compliant for posting on agency FOIA reading rooms to be too burdensome, or agencies fear being sued for posting “non-compliant” documents.

An important development took place during the October 2016 FACA meeting that should be kept in mind going into this one: an expert panel comprised of representatives from the Access Board and the General Services Administration addressed the Committee and noted that if making documents 508 compliant constitutes an “undue burden,” agencies can still post documents that are not 508 compliant to their websites. 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 Access Board Standards and Guidelines has relevant citations on when documents need not be made 508 compliant and when an agency may use alternative means to meet 508 requirements for individuals with disabilities on pages 5803 and 5843 respectively.

I will be live-tweeting as much as my reception in McGowan allows – follow at @laurenleharper.

Government Information Watch

A new resource is available for tracking openness and accountability in the federal government. Government Information Watch, directed by former director Patrice McDermott, is committed to monitoring “access to information about government policy, process, and practice and to ensure and preserve open, accountable government through advocacy.” Recent posts discuss the nomination of Neomi Rao for Administrator of Office of Information and Regulatory Affairs and Prosecution under the Espionage Ace and “National Defense” Information.

Sharing Intelligence with non-IC Agencies

New policy guidance from the Director of National Intelligence and highlighted by Steve Aftergood at Secrecy News lays out the procedures for non-intelligence community agencies accessing classified intelligence or IC IT systems. Aftergood says, “In a nutshell, the non-IC agency must have an identifiable need for access to intelligence information and must be able to meet required physical security standards for safeguarding the information.” The guidance, “Federal Partner Access to Intelligence Community Information Technology Systems,” can be found here.

No Redacted Report on Russian Election Interference Possible

It is not possible for the Office of the Director of National Intelligence to prepare a redacted version of a classified report on Russian meddling in the 2016 presidential election, according to a declaration filed by the ODNI’s Edward Gistaro in response to an Electronic Privacy Information Center FOIA lawsuit. Doing so would provide valuable information to foreign intelligence services and could “reasonably cause serious harm” to U.S. intelligence efforts and national security.

The document is one of 11 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, July 12.

“Kryptos” (1990), by James Sanborn, a sculpture containing a message encoded with frequency tables, located at the CIA’s New Headquarters Building. (Photo credit: CIA)

TBT Pick – CIA Reactions to JFK Assassination Included Fear of Possible Soviet Strike against U.S.; Desire to “Bond” with LBJ

This week’s #TBT pick features declassified articles from Studies in Intelligence, the CIA’s in-house journal, that were released via FOIA requests and litigation. Topics highlighted in the articles include:

  • The Presidential ban against CIA assassinations of foreign leaders, first enacted in 1976, which reflected both moral and practical reasons but never spelled out the exact scope of the prohibition;
  • A proposal for a far more draconian version of the Intelligence Identities Protection Act – including secret courts for intelligence officers accused of violating that law and criminalizing any revelation or purported evelation of a covert intelligence officer’s identity;
  • An account of how CIA and Army intelligence analyses in the late 1970s indicated that the U.S. had significantly underestimated North Korean military strength — and derailed President Carter’s plan to withdraw U.S. ground forces from South Korea.

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Still Fighting for FOIA After All These (51) Years: FRINFORMSUM 7/6/2017

July 6, 2017

The signing statement from left to right: LBJ’s handwritten edits, Bill Moyers’s edits, and the final iteration.

FOIA at 51

The Freedom of Information Act turned 51 this July 4, and the public is still fighting tooth-and-nail for its right to know decades after the law went into effect. This calendar year alone the National Security Archive has filed suit against the Trump administration four times – including for access to the White House visitor logs and to prevent the destruction of Presidential records by Trump and his staff. As the Des Moines Register’s Editorial Board notes in a history of the law, “As with many of the rights we cherish, we must tirelessly work to ensure the public’s access to public information is protected.”

Another excellent article on the history of the FOIA was recently published in the US News and World Report.

The National Security Archive’s history of LBJ’s signing of the Freedom of Information Act can be found here, and the Archive’s “Essential FOIA Resources” can be found here.

Anticipated Medicare Data Will Not be Released

Centers for Medicare and Medicaid Services’ officials have scrapped plans to release data on Medicare Advantage plans, which allow participants to enroll in “privately run health plans run by Medicare” that enroll “more than a third of the 58 million beneficiaries of the Medicare program.” The release was long-awaited by researchers, but CMS reported that “there were enough questions about the data’s accuracy that it should not be released for research use.” Critics responded that if the data was good enough to be used for processing payments, it should be good enough to be released to the public.

Last year the Center for Public Integrity reported, thanks to a FOIA lawsuit, that many Medicare Advantage providers were overcharging Medicare – to the tune of $70 billion from 2008 to 2013. More publicly available information could prevent such gross overcharging.

No Classified Presidential Directives from Trump

President Trump has not issued a single classified presidential directive on national security in the nearly six months he has been in office, reports Steve Aftergood of Secrecy News. Aftergood notes that it is “a departure from past practice in previous Administrations” and the reasons behind it are unclear. Aftergood speculates that the president may have delegated aspects of national security decision-making elsewhere, or that there is no national security policy to speak of.

Trump has issued five unclassified National Security Presidential Memorandums, the most recent one being a June 16 memo reversing steps towards normalization of relations with Cuba. “The June 16 NSPM-5 directed the Secretary of State to publish it in the Federal Register. But three weeks later, even that simple task has still not been carried out.”

“Overview of the 9/11 Investigation”

Miami U.S. District Judge Cecilia Altonaga. Photo: Federal Bar Association, South Florida Chapter

Federal Judge Cecilia Altonaga recently reversed her own May 2017 ruling and issued a new order allowing the FBI to keep secret a document from the 9/11 Review Commission concerning funding for the terrorist attack; Altonaga also ruled out holding a FOIA hearing “to evaluate the need for such continued secrecy nearly 16 years after the 9/11 attacks.”

The ruling stems from a 2016 lawsuit brought by the Florida Bulldog’s parent company, Broward Bulldog Inc., which sued the FBI for 9/11 Review Commission records. The suit “forced the FBI to review 1,858 pages of records and to release parts of 713 pages. The FBI withheld 1,145 pages.”

One of the key records released in part this February is a 60-page document, “an FBI slide show titled ‘Overview of the 9/11 Investigation.’” The bureau argued that the heavily redacted document was exempt from release pursuant to FOIA exemption b(7)(E), which protects law enforcement techniques and procedures. This May Altonaga ruled that the bureau “failed to meet its burden in establishing Exemption 7(E) applies to the redacted information” in the 9/11 Overview because “much of it does not discuss any FBI investigative techniques and procedures; instead the material often encompasses facts and information gathered FBI suspects.”

The Florida Bulldog reports,“Altonaga’s new order doesn’t address that argument, but nevertheless sided with the FBI, saying the redactions are ‘necessary to prevent disclosure of FBI techniques or procedures.’”

Former Florida Senator Bob Graham, who led the Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001, said, “The court essentially accepted without detailed substantiation the FBI’s assertions that techniques and procedures would potentially be compromised. I believe a trial was needed at which those unsubstantiated statements would be challenged with questions such as, ‘Over the 16 years since the events of 9/11 occurred have these techniques and procedures which proved to be so ineffective in preventing 9/11 been continued?’”

Broward Bulldog Inc. is considering an appeal.

Reverse FOIA Suits Face Test in California

The Marin-County based First Amendment Coalition is filing a challenge to a reverse FOIA lawsuit filed by suspended Milpitas city manager, Tom Williams. Public records show Williams, who was suspended in mid-May and has publicly been feuding with Mayor Rich Tran, used a city credit card to pay his lawyer $7,000 and tried to use another $30,000 of public funds to cover additional legal costs. News organizations filed public records requests about the dispute, and Williams quickly filed a reverse California Public Records Act suit. Williams is also asking the city for $1 million in emotional distress and damage to his reputation caused by public statements by the mayor.

The California News Publishers Association last year requested lawmakers put in end to reverse-CPRA suits with legislation, but that process is on hold as three CPRA appeals make their way through the appellate courts.

New CIA Records Schedule 

An April 2017 NARA Federal Register notice indicates that several agencies, including the CIA, have new records schedules; the CIA items relate to “human resources, employee medical files, information management, intelligence collection and operations, and security records.” Per the instructions in the notice, researchers should contact NARA for the new schedules.

US-UK FOIA Differences

A good article comparing the history of enactment between the UK FOIA law in 2000 and the US Freedom of Information Act in 1966 will be a fun read for document hounds. The National Security Archive’s Nate Jones’ is heavily-cited in the article, noting “The bottom line is that the US law has generally grown stronger over time – though with steps backwards as well.” Of the UK FOI legacy and Tony Blair’s introduction of the bill, Maurice Frankel, chairman of the Campaign for Freedom of Information, says “I’m sure most people can think of at least one decision that Tony Blair made while he was Prime Minister that was a far bigger mistake than the Freedom of Information Act.”

TBT pick – Declassified Record on North Korean Nuclear Weapons

What did the US know about the North Korean nuclear weapons program in 2003? A posting from the National Security Archive’s vault, “North Korea and Nuclear Weapons: The Declassified U.S. Record,” has some insights, but as the Archive’s Korea expert Dr. Robert Wampler notes, “Compared to what is available on Iraq and other suspected proliferating governments, there is a serious lack of declassified documents on this issue that can help the public and scholars understand and analyze the historical development of U.S. policies on the North Korean nuclear program.”

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Will Public Finally Gain Access to Congressional Research Service Reports? FRINFORMSUM 6/29/2017

June 29, 2017

Public Access to CRS Reports

Public access to Congressional Research Service reports is mandated in the House’s Legislative Branch Appropriations Committee bill for 2018, which passed out of committee this morning. The act, if enacted, directs the Library of Congress’ CRS to make all non-confidential reports public. The topic has been subject of debate for years, but the act’s authors found “the Committee believes the publishing of CRS reports will not impede CRS’s core mission in any impactful way and is in keeping with the Committee’s priority of full transparency to the American people.”

Daniel Schuman, Policy Director at Demand Progress, has been fighting for public access to the reports for years and his written extensively on the issue. A good summary of his winning arguments can be found in his May 3, 2017, testimony before the House Subcommittee on Appropriations.

The bill must still pass the entire House, and there must be a companion bill in the Senate. Roll Call notes that the “Senate Appropriations Committee has yet to act on its version” of a 2018 appropriations bill.

Secrecy News Highlights

Two recent postings by Steve Aftergood at Secrecy News will be of special interest to document hounds. The first concerns the launch of “a new series of unclassified publications on foreign military threats to the United States with a report on the Russian military” at the Defense Intelligence Agency. The second examines a new Defense Department historical volume on “The role of Secretary of Defense Harold Brown in managing the Pentagon, boosting the military and confronting the Soviet Union during the Jimmy Carter Administration.”

Contractors Kept TRANSCOM in the Dark About Compromised Networks

Contractors for the U.S. Transportation Command (TRANSCOM) only notified the command center of compromised networks that came into contact with TRANSCOM’s own networks in one out of 25 instances. The revelation comes from a previously secret 2014 Senate Armed Services Committee inquiry into cyber intrusions. The inquiry contains a wealth of information on cyber incident reporting from TRANSCOM contractors and insights into inter-governmental information sharing.

The inquiry is one of 11 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, June 28.

Privacy Watchdog Down to One Member, Can’t Launch New Investigations or Hold Public Forum

The Project on Government Oversight has a good, in-depth piece drawing attention to the precarious position the Privacy and Civil Liberties Oversight Board finds itself in. PCLOB, an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties, is supposed to be staffed by one full-time chair and four part-time members nominated by the President and confirmed by the Senate. But only one of the boards seats is currently filled and “the board can’t carry out many of its core functions without a quorum of at least three members. For example, it can’t launch any new oversight investigations or hold public meetings.” Members of Congress have complained that the vacancies hobble the debate over government surveillance.

PCLOB was not staffed at full-force by the end of the Obama administration either. The Board’s last chair was David Medine, who retired two years early in 2016 for a position in the private sector. His retirement came after The Washington Post’s Ellen Nakashima reported that Republicans on the House Intelligence Committee advanced a provision to the 2016 intelligence authorization bill that would block PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by Medine arguing that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

President Trump has yet to nominate anyone to fill the vacant positions.

State to Close Independent Office on Pakistan and Afghanistan

Reports that the Trump administration appears likely to shutter the State Department’s “stand-alone” Office of the Special Representative for Afghanistan and Pakistan (SRAP), which “coordinates across the government to meet U.S. strategic goals in the region,” comes on the heels of news that Trump has given the Pentagon the authority to set troop levels in Afghanistan.

SRAP, created in 2009, has seen its office dwindle from almost 100 employees to a dozen and its mission narrowed from being “the main diplomatic player” with a wide range of responsibilities to specialists managing current programs.

The Obama administration also considered closing the office and folding it into the South and Central Asia Affairs bureau, but the timing is now more complicated. A former SRAP deputy, Vikram Singh, said, that closing the diplomatic office while adding troops “betrays a lack of strategy and is symptomatic of a vacuum in critical positions throughout the State Department.”

What Did the FBI Learn about Homegrown Violent Extremists from a 2012 Survey? FOIA Redactions Make it Hard to Tell

Survey results analyzed in a heavily-redacted Secret 2012 FBI Counterterrorism Division report shed some light on the Bureau’s insights about homegrown violent extremists. The report, released to the National Security Archive’s Dr. Jeffrey Richelson in response to a FOIA request, specifically focuses on radicalization. Unfortunately, it is nearly impossible to draw conclusions from the document given the amount of redacted material. The FBI redacted all information about who was polled and who conducted the survey, but a good guess is that they survey was carried out by the Directorate of Intelligence’s Analysis and Strategic Issues Branch.

Chief FOIA Officers Meeting

The next meeting of the Chief FOIA Officers Council is scheduled for July 27 at 10 AM at the U.S. National Archives, and you can register here. The Office of Government Information Services’ (OGIS) blog notes, “The Chief FOIA Officers’ Council is intended to develop recommendations to increase agency compliance and efficiency and to share agency best practices and innovative approaches… During this meeting of the Chief FOIA Officer Council, we will discuss strategies for improving customer service and improving coordination between agency FOIA Public Liaisons and OGIS.”

Sterling Convictions Upheld

A federal appeals court upheld all but one of former CIA employee Jeffrey Sterling’s convictions last week. Sterling was found guilty in January 2015 of leaking classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to New York Times reporter James Risen. The quick trial, long delayed by debates over whether or not the Justice Department would force Risen to testify, inevitably took less than two weeks (without Risen’s testimony). Prosecutors urged the judge in a federal filing “to make an example of Sterling in order to discourage other government employees with access to classified information from taking a similar course.”

TBT Pick – The Spy Satellite So Stealthy that the Senate Couldn’t Kill It

Today’s #TBT pick is a 2004 posting on a surveillance satellite program “that the Senate intelligence committee has voted to cancel but survives in the current intelligence budget due to strong support from the House and Senate appropriations committees and the House intelligence committee.” The existence of the program was first described in the National Security Archive’s Jeffrey Richelson’s 2002 book, “The Wizards of Langley.”

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Happy FOIA-ing!