Time is Now to Submit Comments Protesting ODNI’s Astronomic MDR Fees, How Obama Can Improve Openness Legacy, and More: FRINFORMSUM 3/24/16
The National Security Archive recently submitted comments to the Office of the Director of National Intelligence stating our concern over its proposed regulation change that would charge requesters as high as $72 per hour for Mandatory Declassification Review requests and 50 cents per page for photocopying. The rule goes against ODNI’s Transparency Implementation Plan, previous transparency initiatives, instructions from ODNI’s General Counsel Bob Litt, and the President’s January 21, 2009, transparency memorandum.
The ODNI’s MDR fee structure should remain consistent with FOIA’s fee structure. The FOIA statute mandates that no fees may be charged for the “first two hours of search time or for the first one hundred pages of duplication.” The FOIA further instructs that fees surpassing the first two search hours and 100 pages of duplication be reasonable, and as such, the ODNI’s FOIA fee policy only charges 10 cents per page for photocopying and provides an automatic waiver for fees that are less than $10.
ODNI has indicated in response to public comments that it plans to modify the proposed rule. No official notification has been given, however, and the public comment period remains open – until March 28.
OpenTheGovernment.org (OTG) will also be submitting comments.
The CIA tried — and failed — to enact the same bad, astronomically high MDR fees in 2011. After public backlash against the CIA’s proposed regulations, the agency, “as a courtesy to requesters,” withdrew the rule in 2012. Why the ODNI copied the CIA’s failed and misguided fee change –and who is behind the proposals– is a mystery; but it shows that transparency advocates need to keep an eye on other agencies trying to sneak through the same barriers to access.
The Archive also recently joined OTG and a dozen other groups in encouraging President Obama to take concrete and feasible steps to improve his open government legacy – ones that lives up to his Day One promise of being the most transparent administration in history – during his last year in office. These steps include advocating the presumption of openness in the FOIA that is present in both the House and Senate’s FOIA reform bills and releasing the Senate report on the CIA’s torture program.
Reinforcing the Obama administration’s “declassified diplomacy” and efforts to declassify historical records on Argentina’s dirty war during Obama’s visit to that country, the National Security Archive this week posted examples of the kinds of materials in US government files that would most likely enhance public understanding of that troubled period in Latin American history. In the case of other countries like Chile, Guatemala and El Salvador, declassified US intelligence, defense and FBI records have been key to supplying critical information about local command structures, clandestine operations, and human rights violations. Still-classified documents in US files undoubtedly describe similar operations against Argentine insurgents, dissidents and opposition, and their release would advance public comprehension of another historically significant episode of military repression in the region.
This isn’t the first time that the Obama administration has practiced “declassified diplomacy.” In 2014 Vice President Joe Biden announced during a meeting with Brazilian president Dilma Rousseff that the administration would “would undertake a broader review of still highly classified U.S. records on Brazil, among them CIA and Defense Department documents” to assist in finalizing the Brazilian Truth Commission Report. In October 2015 Secretary Kerry personally provided Chilean president Michelle Bachelet with several hundred documents on the Letelier-Moffitt assassinations in Washington, D.C. on September 21, 1976.
Planning on filing a FOIA request with the CIA? A recent court ruling spells out what “magic words” requesters need to use for the CIA to search for records. Requesters must ask for documents that “mention” or “reference” what you’re looking for, not documents that “pertain to”, “relate to”, or “concern” the subject of your request. This very useful information is thanks to a FOIA lawsuit for Nelson Mandela records filed by MIT PhD candidate Ryan Shapiro after the CIA argued unsuccessfully that his request was too burdensome. The judge in the case, U.S. District Judge Christopher R. Cooper, ruled against the CIA, finding that, “Regardless of how onerous it might be to locate them, there can be no dispute about which items are being requested – records in the CIA’s possession that ‘mention’ Nelson Mandela or his three listed aliases,” going on to note that “FOIA’s reasonable-description requirement does not doom requests that precisely describe the records sought, even if compliance might overwhelm an agency’s response team.” See page 7 of the recent ruling in Shapiro’s case for more information on wording a FOIA request to the CIA.
There is a “substantial likelihood” that the Pentagon inspector general’s office destroyed evidence in the prosecution of whistleblower and former National Security Agency official Thomas Drake, according to a new Office of Special Counsel (OSC) report. OSC, the office charged with protecting whistleblowers, sent its conclusions to the Justice Department, which in turn promised to open an investigation no later than June 1. OSC’s findings support Drake’s long-standing claims that the Pentagon IG – which has jurisdiction over the NSA IG – did not “did not properly maintain his confidentiality after he cooperated in 2002 and 2003 with congressional inquiries and a Pentagon inspector general audit of the National Security Agency’s controversial surveillance programs.” Drake was charged by the government in 2010 under the Espionage Act. The charge was dropped in 2011 in a case that US District Court Judge Richard Bennett called “unconscionable,” adding that it didn’t “pass the smell test.”
The Justice Department is declining to prosecute Robin Raphel, a career diplomat that was investigated by the FBI for allegedly providing US secrets to Pakistan. The investigation into Raphel began in 2014 after officials eavesdropped on a call between Raphel – who has been integral to shaping foreign policy towards Pakistan for decades – and a Pakistani official, which seemed to indicate that she “was passing American secrets to Pakistan.” The FBI found classified information when it raided Raphel’s home in 2014 – but the information wad decades-old.
The Navy –under Congressional pressure—is denying Rear Adm. Brian L. Losey’s promotion for retaliating against suspected whistleblowers. Losey was investigated five times “after subordinates complained that he had wrongly fired, demoted or punished them during a vengeful but fruitless hunt for the person who had anonymously reported him for a minor travel-policy infraction.” Senator Ron Wyden (D-Ore.) forced the Navy to reconsider Losey’s promotion by blocking Janine Davidson’s nomination to become the Navy’s second-ranking civilian leader and Sens. John McCain (R-Ariz.) and Jack Reed (D-R.I.), the chairman and ranking Democrat on the Senate Armed Services Committee, sent a joint letter over concerns with the promotion. Rejecting the promotion was a tough sell even with Congressional attention; “a promotion board consisting of Navy admirals recently recommended in a majority vote that Losey be promoted anyway”, a recommendation that was only overruled by Navy Secretary Ray Mabus.
Chelsea Manning recently obtained a 31-page document on the government’s Insider Threat program. The document reveals that “Thousands of US government employees under permanent surveillance are being investigated” to prevent unauthorized leaks. The beginning of the document outlines the eight characteristics that are “telltale signs” of employees likely to leak secrets. These characteristics include “ideology”, “divided loyalties”, and “disgruntled or wants revenge.” Steve Aftergood notes that focusing on these kinds of characteristics harken to an ineffective Cold War strategy. Aftergood also points out that, “The government has already put about 100,000 military and civilian employees and contractors under what it calls ‘continuous evaluation.’”
Officials speaking on the condition of anonymity have indicated that the Defense Department sought administrative and non-judicial actions rather than criminal charges against more than a dozen military personnel involved in an October 2015 airstrike that destroyed a hospital in Afghanistan, killing at least 42. The full results of the investigation are expected to be released shortly.
An ACLU FOIA request to the US Marshals has won the release of documents showing that agents hid their work using controversial cellphone surveillance technology with classification labels, “even though Justice Department officials have said that such methods are normal court-approved law enforcement, not spying or intelligence tactics.” The documents show that the Marshals paid more than $10 million over a five-year period for the surveillance technology, and suggest “a mingling of law enforcement with national-security and espionage work—two areas usually kept distinct in order to protect Americans’ privacy.”
The National Security Archive’s Peter Kornbluh — recently in Cuba as part of President Obama’s press group — told Voice of America this week that, “I think in just five or six years, you’re going to see full access to the Internet in Cuba, you’re going to see a really, a fully mixed economy in Cuba, and we’ll be in the post-Castro era where frankly, political evolution is not only likely, but inevitable.”
Today’s #tbt pick is chosen with today’s conviction of Bosnian Serb leader Radovan Karadzic of genocide, war crimes, and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia, in mind. Today’s pick is a June 15, 1995, letter from the United Nations to Karadzic saying, “We expect you to take responsibility for ensuring that those under your authority comply with all existing agreements and obligations…” Keep an eye out for an upcoming blog on the incriminating documentation regarding Karadzic gathered by the National Security Archive’s Genocide Documentation Project.
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FOIA Bill Passes Senate But Government Still Not Prioritizing Email: A Sunshine Week Wrap-Up FRINFORMSUM 3/18/2016
The Defense Intelligence Agency (DIA), the Department of the Treasury’s Comptroller, and the Nuclear Regulatory Commission (NRC) are among a handful of agencies that have already admitted they will not meet the December 31, 2016, deadline for electronic management of official government email – like Hillary Clinton’s – in their mandatory, annual self-assessment report to the National Archives and Records Administration (NARA).
The State Department, the Department of Defense, and the Energy Department – some of the government’s largest agencies – all filed their reports, which were due by January 29, more than a month late, and one in six agencies did not even bother to turn in their own self-assessments at all, according to a new Email Alert released by the National Security Archive to mark Sunshine Week.
The Archive’s Email Alert concludes that to get agencies to take email preservation seriously further steps are clearly needed. Useful ways to get agency attention include:
* a stern reminder from OMB and NARA that self-assessments are mandatory,
* a Government Accountability Office survey of agency email preservation, and
* congressional hearings showcasing the email savers along with the laggards.
The Archive nominated the Energy Department for the Electronic Frontier Foundation’s FOILIES Award for the most extraordinary and egregious FOIA request responses for withholding a 1978 letter on the Comprehensive Test Ban Treaty (CTBT) in full under FOIA’s oft-abused Exemption Five. DOE withheld the letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the CTBT saying that releasing any part of the document could “confuse the public about the Government’s later policy decisions.” DOE took this untenable stance even though the State Department has published declassified information on the CTBT – and Agnew’s negative views on it – in three Foreign Relations of the United States publications.
The CIA and the Justice Department used the same “confusion” argument last year when the Archive went to court to have a history on the Bay of Pigs invasion released. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge.
Proving again that FOIA “may be the last bastion of bipartisanship in Washington DC, Senators Patrick Leahy, John Cornyn, and Chuck Grassley” marked Sunshine Week by passing the FOIA Improvement Act of 2016 – via Unanimous Consent. The Archive’s FOIA project director Nate Jones notes that to pass the bill by Unanimous Consent, “the senators amended the bill that passed out of the Judiciary Committee to make it slightly less strong than the bill that the Senate passed last session. The section on Exemption Five reform was changed so that the 25-year sunset now only applies to the “Deliberative Process” privilege of Exemption Five (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed. The Presidential Records Act forbids the use of any Exemption Five privilege beginning twelve years after the president leaves office.” This will still prevent the DOE and CIA from their aforementioned abuse of Exemption Five.
There is a possibility that the Senate could reconcile its bill with the House’s bill so that the strongest parts of both remain, but Rep. Elijah Cummings called on Speaker Paul Ryan to pass the Senate version, meaning that the House’s strong B5 reforms may have to wait until the next congress. (MuckRock has a very good comparison of what’s in both bills here.)
The White House indicated this week that it would sign the FOIA reform bill passed by the Senate, and that it would like to see FOIA apply to Congress. The announcement comes a week after a FOIA lawsuit revealed that the Obama administration and the Justice Department “aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.”
The House Oversight and Government Reform Committee is trying to shine a light on the Justice Department’s Office of Legal Counsel memos and opinion-making process. Committee Chairman Jason Chaffetz and Ranking Member Cummings sent a letter to the DOJ noting that a “recent news report indicates that Central Intelligence Agency General Counsel Caroline Krass stated at an event that more frequent requests under the Freedom of Information Act (FOIA) and concerns about opinions being made public ‘has served as a deterrent to some in terms of coming to the OLC to ask for an opinion.’” The Committee is 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.”
The Defense Department is seeking – for the second time – a new FOIA exemption that would protect “military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive.” Steve Aftergood notes that this is the second time in as many years that the DOD has requested the exemption. (Aftergood also has some sobering comments on the Senate’s FOIA reform bill at the bottom of this post that are worth a read.)
The ACLU recently filed a FOIA request with all intelligence agencies to learn more “about the standards governing prepublication review and the way those standards are applied.” The intelligence community has for decades – through “a variety of secrecy agreements and a patchwork of regulations” required current and former employers to submit their work, whether it is fiction for non-fiction, for security review before publication – a system that is seen by many as broken. Just Security reports that the major hurdle in fixing the system is lack of information on how it works, making it difficult to suggest fixes for “egregious delays, overbroad censorship, and discrimination against those who seek to speak critically of the government.”
The Energy Department and its contractors continue to retaliate against employees and contractors that spoke to Government Accountability Office investigators, according to a recent McClatchy report. Senator Ron Wyden (D-Or), one of the three senators that requested the 2014 GAO investigation – itself into whistleblower retaliation – said that, “It defies belief that an Energy Department contractor would fire an employee who cooperated with a Government Accountability Office investigation into whistleblower retaliation,” going on to note that it shows the culture of retaliation is “alive and well” at the Energy Department.
Dan Metcalfe – founding director of the Justice Department’s Office of Information Policy – recently wrote an op-ed for Politico on the feebleness of Hillary Clinton’s defense for having both personal email and a personal server while serving as secretary of state – including many of the arguments Nate Jones and I make here. Intriguingly, Metcalfe says that when he retired from the Justice Department in 2007, “I had weathered many a Clinton records scandal during the 1990s—about two dozen, all told, including two that amazingly have still never become public.” Metcalfe argues that “both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better.”
The Archive’s John Prados will be speaking at the Presser Auditorium at Ohio Northern University on Monday, March 21, discussing if there “Is There a Future for the CIA?” Prados has written a number of books, including: The Family Jewels: The CIA, Secrecy, and Presidential Power; The US Special Forces: What Everyone Needs to Know; and A Streetcar Named Pleiku: Vietnam 1965, A Turning Point. Stop by if you’re in the area!
As President Obama prepares to go to Argentina next week on the 40th anniversary of the military coup, the National Security Archive hailed his decision to declassify hundreds of still secret CIA and Defense Department records on the repression during the military dictatorship. The documents, whose release the Archive’s Carlos Osorio says demonstrates “tangible and concrete U.S. support for the pursuit of human rights and justice in Argentina,” are likely to shed significant light on the detailed U.S. knowledge of the repression during the dictatorship.
To provide a historical context for the President’s decision to declassify more records on Argentina, the National Security Archive today posted a unique collection of documents that reveal initial support by secretary of state Henry Kissinger for the abuses of the Argentine generals.
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Archive’s Nomination of DOE for FOILIES Award for Egregious B5 Invocation Reminder Why FOIA Reform Necessary
The National Security Archive nominated one especially bad FOIA response from the Energy Department for the second-annual FOILIES Awards – presented for the most extraordinary and egregious FOIA request responses. Spearheaded by the Electronic Frontier Foundation (EFF), the “winners” of the FOILIES Awards were announced earlier today.
The Department of Energy earned the dubious distinction from the Archive for its lack of “sense and segregability” and spurious use of FOIA’s Exemption Five.
Specifically, the Department of Energy is withholding a 1978 letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the Comprehensive Test Ban Treaty (CTBT) in full – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject. The DOE cited the national security exemption and FOIA’s “withhold it because you want to” Exemption Five for its needless secrecy, saying that releasing any part of the document could “confuse the public about the Government’s later policy decisions.” The DOE is taking this implausible stance even though the State Department has published declassified information on the CTBT – and Agnew’s negative views on it – in three Foreign Relations of the United States publications. It appears the Energy Department may be the confused one – forgetting that FOIA’s Exemption Five is not designed to withhold embarrassing or inconvenient information decades after the fact, and the FRUS publications should allow the DOE to release at least some parts of the document.
The Archive’s nominations for last year’s FOILIEs also included a bogus argument that a FOIA release could cause confusion. The Archive nominated the CIA and the Department of Justice for arguing that a volume of a CIA history on the Bay of Pigs should also be withheld under the Exemption Five because it could “confuse the public”. Amazingly enough – they won. And then won again after our appeal was denied in the DC Court of Appeals. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge.
Yesterday’s passing of S337 – introduced by Senator John Cornyn (R-Tx) and cosponsored by Patrick Leahy (D-Vt) and Charles Grasssley (R-Ia) – will help prevent agencies from making such egregious claims in the future by preventing agencies from invoking Exemption Five for documents 25 years are older — however the sunset only applies to the “Deliberative Process” privilege (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed. The Archive’s Nate Jones notes that while the Senate’s language on B5 is “weakened from the reform that passed in 2014, the most egregious abuses will still be sunset (like the CIA’s withholding of its Bay of Pigs History.”
The House passed a similar bill in January, which has much stronger Exemption Five reform that does not have Attorney Client or Work Product privileges cut-outs and includes a strong test needed to pass to withhold modern records.
Both bills — which should be reconciled so the best parts of both are preserved — also:
- Codify the presumption of openness mandated in Obama’s Day OneFOIA Memo, which “directs agencies to withhold information requested under FOIA only when there is ‘foreseeable harm’ to one of the interests protected by a FOIA exemption;”
- Strengthen the FOIA ombuds OGISby granting it the “ability to communicate directly with Congress and issue advisory opinions in mediation.” However, the House bill also has a troubling carve-out for the frequently FOIA-ed 17 agencies that make up the Intelligence Community, exempting them from certain provisions of the bill and necessary reforms to the consultation process;
- Improve public access to digital records;
- Require agencies to update their FOIA regulations within 180 days after the passage of the bills. Currently, over halfof federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.
Proving again that the Freedom of Information Act may be the last bastion of bipartisanship in Washington DC, Senators Patrick Leahy, John Cornyn, and Chuck Grassley today marked Sunshine Week by passing the FOIA Improvement Act of 2016 (S. 337)– via Unanimous Consent –an extremely tricky task.
To pass the bill via UC, the senators amended the bill that passed out of the Judiciary Committee to make it slightly less strong than the bill that the Senate passed last session. The section on Exemption Five reform was changed so that the 25-year sunset now only applies to the “Deliberative Process” privilege of Exemption Five (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed. The Presidential Records Act forbids the use of any Exemption Five privilege beginning twelve years after the president leaves office.
While it was disappointing to see Exemption Five reform weakened from the reform that passed in 2014, the most egregious abuses will still be sunset (like the CIA’s withholding of its Bay of Pigs History); and the codification of the presumption of openness will apply to the Attorney Client and Work Product privileges so if agencies follow the law (or are sued) more of that type of information will also be released.
The amendments also strike a Government Accountability Office audit, remove language forbidding censoring embarrassing information or information which could “technically” be withheld.
Language that would fix fee issues by forbidding agencies from charging most fees if they miss a deadline was also tweaked (but preserved). Previously, agencies claimed that they could call a request “unusual” and thereby be exempted from the fees fix of the 2007 FOIA amendments. This bill establishes once and for all that that is not the case. Though it does lower the ceiling for requests agencies can charge fees for even if they miss their deadline from 50,000 pages to 5,000. So requests over 5,000 pages could still be charged fees, even if an agency misses its deadlines.
While this is a very big step, FOIA reform passed both houses unanimously last year, only to die. So our work is far from done. The House FOIA bill, (HR 653) mirrors the Senate bill in many ways. Here is a previous National Security Archive analysis of both of the bills– though this analysis was written before the Senate’s amendments were passed.
The House bill differs in it has much stronger Exemption Five reform, which does not have Attorney Client or Work Product privileges cut-outs and includes a strong test needed to pass to withhold modern records under Ex. 5. It does, however, have two unacceptable Intelligence carve outs which would undermine the fundamental principles of FOIA and need to be removed.
So, strategically, there are three potential future outcomes:
- The House and Senate incorporate the best aspects of each bill, remove the IC carve-outs and pass amalgamated reform via conference.
- The House takes up and passes the Senate’s bill. (It’s extremely unlikely the Senate will take up the House Bill.)
- Or House leadership (again) refuses to move on FOIA reform and FOIA bills that unanimously passed both the House and Senate will die again, for the seventh time, despite unanimous support.
Since its Sunshine Week, I’m optimistic the Janus Faced supporters of FOIA will be thwarted and the bill will actually become law this year.
ODNI Yet to Formally Withdraw Rule on Astronomically High MDR Fees Despite Pledge to Modify It: FRINFORMSUM 3/10/2016
The Office of the Director of National Intelligence (ODNI) has agreed to modify a recently revealed plan to charge requesters up to $72 per hour to review Mandatory Declassification Review (MDR) requests, even if no information is found or if all of the information that is found must be withheld, Steve Aftergood reports. ODNI’s Information Management Division director Jennifer Hudson said the agency agreed to modify the rule and will “swap out the [MDR] fee structure… for the fee structure in the FOIA policy”. This is good news – if it happens. The astronomically high fees – which will go into effect by April 26, 2016, “unless adverse comment is received by March 28, 2016” – are out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures. ODNI has yet to formally withdraw the rule, however, and until it does good government groups should continue to submit comments.
Sunshine Week, the national celebration of open government and freedom of information, kicks into high gear tomorrow with the 2016 National Freedom of Information Day Conference at the Newseum. The day-long conference will include remarks from U.S. Rep. Jason Chaffetz (R-Utah) and Office of Government Information Services (OGIS) Director James Holzer, as well as a panel on the American Society of News Editor’s Sunshine Week project, the American Library Association’s James Madison Award, and induction of a new class into the FOIA Hall of Fame.
OGIS will also be hosting a very cool event of its own to celebrate Sunshine Week this coming Monday. In addition to speeches from Archivist of the United States, David Ferriero, and Senator Patrick Leahy (D – Vt.), the copy of the FOIA signed by President Johnson 50 years ago in 1966 will be available for viewing before and for the first portion of the event.
Just in time for Sunshine Week, documents released thanks to a FOIA lawsuit brought by the Freedom of the Press Foundation show that the Obama administration “aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.” Specifically, the Justice Department vehemently objected to nearly all aspects of the bill, including codifying the presumption of openness touted in Obama’s Day One transparency memo. Archive FOIA Project Director Nate Jones told Vice News’ Jason Leopold, “It took the Freedom of Information Act to provide evidence of what many felt but could not prove: that the Department of Justice ‘strongly opposes’ fixing the Freedom of Information Act,” going on to note that, “The released talking points make clear that on the one hand, DOJ ensures agencies do the bare minimum to comply with the FOIA’s requirements and paints a misleadingly rosy picture during congressional testimony, while [on] the other it secretly works to block Congress’s attempts to release more records to more people more quickly. It’s no wonder FOIA requests take decades to process and tens of thousands of pages are improperly withheld when the DOJ — the agency envisioned in 1966 to be the watchdog tasked to ‘encourage compliance’ — is actually working to stymie reform.”
The FBI hired an unqualified contractor “to conduct research and to provide analysis and reporting services” for its FOIA program last year. The contractor the FBI hired – US Investigations Services – did not have the required personnel to fulfill the requirements of the contract, according to a recent Government Accountability Office protest, which shows that “Instead of personnel with experience in paralegal, records management and declassification review, the FBI got personnel with capabilities in the development of business methods and identification of best practices.” The GAO protest sheds some light on the problematic practice of outsourcing FOIA work to government contractors – who are themselves not subject to FOIA and are, nominally, not supposed to perform any work that is inherently governmental.
The Guardian reports that the FBI has changed its “privacy rules for searching data involving Americans’ international communications that was collected by the National Security Agency,” but exactly what the changes are remain classified. The Foreign Intelligence Surveillance Court accepted the changes during the bureau’s annual recertification of its surveillance powers. The FBI is considering releasing the changes, but until then “it remains unknown whether the FBI will now make note of when and what it queries in the NSA data.”
The Defense Department estimated the total cost of processing MuckRock user Martin Peck’s FOIA request for information on “HotPlug” systems – “a portable power pack that keeps seized devices from powering down” – at $660 million. The DOD is quoting the ridiculously high number because it has no way of searching its electronic database. According to the Defense Department, “it is possible that contracts that acquired the requested items are present in the Electronic Documents Access (EDA) system; however, there are more than 30 million contracts in EDA, consisting of more than 45 million documents. No method exists for a complete text search of EDA, as some documents are scans of paper copies.” Fees are, however, significantly lower for requesters in favorable fee categories – like news media or educational – and when agencies miss their statutory response deadlines; the Open Government Act of 2007 mandates that agencies are not allowed to charge non-commercial FOIA requesters “search fees, or, if applicable, duplication fees” if the agency misses the FOIA’s statutory twenty-day response deadline. The chart below shows that agencies can charge a requester – if anything – if they miss this deadline:
The State Department has removed twelve emails found in the personal accounts belonging to Colin Powell and top aides to Condoleezza Rice from its unclassified archives after the State Department inspector general determined last month that the emails were classified. The two classified emails on Powell’s account originated from ambassadors and Powell claimed the contents are “fairly minor”, going onto say “I wish they would release them, so that a normal, air-breathing mammal would look at them and say, ‘What’s the issue?’”
Applications for the position of Director of the Information Security Oversight Office (ISOO) are being accepted on USA Jobs until March 28. The position is a potentially powerful one. Executive Order 13526 says that “If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification”. Steve Aftergood notes that given the publicity classification decisions – like those of Mr. Powell’s emails – have received recently, that “the position of ISOO director is potentially even more important than ever before, and the next ISOO director could play a leading role in reconciling competing interests in secrecy and disclosure.”
A Defense Department inspector general report released thanks to FOIA concludes that the DOD’s use of drones to support local authorities in 2015 did not violate any laws or policies. The report also notes that between 2006 and 2015 there were “less than twenty events that could be categorized as DoD UAS support to domestic civil authorities,” and that that number included “both approved and disapproved requests.”
Defense Secretary Ashton B. Carter disclosed some of the projects being worked on by the secretive Strategic Capabilities Office last month “while previewing his proposed 2017 budget. He called for $902 million in funding for SCO in 2017 — nearly twice what it received this year, and 18 times what it started with.” Some of the newly-revealed projects include mini-drone prototypes with the ability to swarm, and an “Avatar”, which “calls for the Pentagon to pair high-tech ‘fifth-generation’ fighter jets like the F-22 Raptor and F-35 Joint Strike Fighter with unmanned versions of older jets like the F-16 Fighting Falcon or F/A-18 Hornet, which would be flown without a pilot for the first time.” The office was launched in 2012 with the goal of countering growing strategic Russian and Chinese threats.
A newly-available report, published jointly by the Archive and the investigative team at Aristegui Noticias in Mexico and released thanks to an Archive access-to-information request and appeal, provides more detailed evidence about the actions of Mexican Army soldiers accused of executing at least 11 people who surrendered after a June 2014 firefight in Tlatlaya, Mexico. The Tlatlaya report was released in accordance with the human rights exception in Mexico’s access law and is a major victory for access to human rights information in Mexico. It raises new questions about how Mexican authorities have handled the investigation, the exact number of executions that occurred that day, and why some of the soldiers later changed their testimonies to implicate others in the crime.
This week’s #tbt pick is chosen with International Women’s Day (March 8) in mind. This week’s #tbt pick is page 1 of The Diary of Anatoly S. Chernyaev, 1972, which shows that for the holiday Soviet leader Leonid Brezhnev went to “the dacha with Viktoriya Petrovna (wife). Nobody visited us. During the day she went to the hospital, our daughter (20 years old) got a duodenal ulcer. Who would have thought… But it looks like she is going to be ok.” The diary was generously donated by Anatoly Sergeyevich Chernyaev to the National Security Archive and is available here.
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Documents in Upcoming National Security Archive Publication Show Kissinger’s Behind-the-Scenes Efforts to Mitigate Fallout from Church Committee Report
A November 25, 1975, telephone conversation (telcon) between Secretary of State Henry Kissinger and Newsweek Magazine executive editor Mel Elfin “sheds light on the behind-the-scenes efforts by Henry Kissinger to mitigate the political fallout from the revelatory Church Committee report, and distort the truth about the Nixon-Kissinger CIA operations in Chile”, according to the National Security Archive’s Peter Kornbluh, author of The Pinochet File: A Declassified Dossier on Atrocity and Accountability. The November 25 telcon, one of hundreds being published on March 15, 2016, through the Digital National Security Archive (DNSA) with the help of our partners at ProQuest, shows Kissinger trying to convince Elfin that the Nixon White House didn’t have anything to do with the kidnapping and murder of the Chilean commander in Chief, General Rene Schneider, in October 1970. Kissinger tells Elfin, “on no account had we anything to do with the kidnapping of Schneider.” Kissinger also calls the Church Committee a “nut house” while attempting to extricate himself and the White House from being tied to a major political assassination and a coup attempt, and shows him trying to scapegoat the CIA, saying “The CIA started it up on the 19th. I think they wanted to prove to Nixon what great guys they were and knew Nixon would be delighted if they succeeded, but that didn’t come off.”
In another quotable document from the upcoming collection, a July 1976 telcon, an astonished Kissinger asks United States National Security Advisor Brent Scowcroft “What do you mean NSA deletes the names?” upon learning that the agency redacted the names of two US officials who were caught blabbing in a communications intercept report. Scowcroft replied, “On the instructions from the Attorney General. They are Americans. Privacy of information. Unbelievable.”
In a September 30, 1974, telcon Kissinger tells President Ford that “megalomania must have limits” when Kissinger is placed on the call before Ford.
These telcons can all be found in the National Security Archive’s new compilation of documents on Henry Kissinger, the larger-than-life statesman who remains one of the most controversial figures in the history of modern U.S. foreign relations. The collection, The Kissinger Conversations, Supplement II: A Verbatim Record of U.S. Diplomacy, 1969-1977, totals more than 900 documents and updates the National Security Archive’s substantial body of documents focusing on Kissinger’s roles in policymaking and diplomacy under presidents Nixon and Ford.
The collection – most of which was declassified as a result of a 2001 Archive FOIA request – includes 971 freshly declassified memoranda of telcons and nine memoranda of conversation (memcons) of White House and State Department meetings. Almost all of these documents were declassified at the specific request of the National Security Archive. Among them are recently declassified telcons from the Richard Nixon Presidential Library of conversations between Kissinger, President Nixon, Secretary of Defense Melvin Laird, and CIA director Richard Helms, among others.
All of the telcons from 1974-1976 are the result of a 2001 Freedom of Information Act (FOIA) request for Kissinger’s State Department telephone conversations. During the course of time, the State Department denied information from over 160 telcons from the original FOIA case and exempted over 770 documents in their entirety. In the latter decision, the Department withheld those telcons on two grounds: executive privilege and “pre-decisional” information under the FOIA’s (b)(5) exemption. The Department’s responses to appeals under the Act were so dilatory that in 2015 the Archive found it necessary to go to court to compel a decision. In August 2015, under federal court order, the State Department released all of the documents under appeal, including the hundreds that had been exempted altogether. Corresponding to the Department’s executive privilege claim, most of the denied telcons were of Kissinger’s conversations with President Ford, Vice President Nelson Rockefeller, and Deputy National Security Adviser Brent Scowcroft, who, in November 1975, took over the role of national security adviser when Kissinger was demoted.
The publication contains documents essential for the research of:
- The impact of press leaks about illegal CIA domestic operations, assassination planning, and other intelligence activities which led to the Church Committee investigations during 1975.
- The Middle East, including U.S. conduct during the 1973 October War and Kissinger’s role in shuttle diplomacy during 1974-1975.
- Wars in Indochina: not only Vietnam, but also Laos and Cambodia, and the White House’s role in managing United States military operations in these countries, including the final stages of these conflicts.
- U.S.-Soviet détente and Kissinger’s conduct of “back channel” diplomacy with the Soviet leadership.
- Kissinger’s working relationships with top officials: Presidents Nixon and Ford, Secretary of Defense Laird, Secretary of State William Rogers, and National Security Adviser Scowcroft, among others.
- Republican Party politics during 1976, especially party primaries and the national convention.
The Archive has previously published three collections documenting Kissinger’s interaction with foreign leaders and diplomats as well as U.S. government officials. The Kissinger Transcripts: A Verbatim Record of U.S. Diplomacy, 1969-1976 includes 2,163 transcripts of Kissinger’s meetings, The Kissinger Telephone Conversations: A Verbatim Record of U.S. Diplomacy, 1969-1977 comprises 15,502 detailed records of his telephone conversations, and The Kissinger Conversations, Supplement: A Verbatim Record of U.S. Diplomacy, 1969-1977, totals more than 600 documents . These collections represent an invaluable source for research on U.S. diplomatic and military history during the late 1960s and the 1970s.
By Sarah Chaney Reichenbach
Tens of thousands of civilians are fleeing central Darfur as a result of attacks eerily similar to those committed over a decade ago in the west Sudanese state. The Archive’s Genocide Documentation Project continues to pry loose records on the 2003-2004 Darfur genocide, and the results of our targeted FOIA requests provide a basis for understanding the ongoing tragedy, and raise prescient questions about the need for intervention more than a decade later.
Marta Ruedas, a top United Nations humanitarian official in Sudan, recently said that she was “deeply concerned about the plight of more than 85,000 newly displaced civilians” as families flee from the escalating conflict in the Jebel Marra region of central Darfur. The forces of the Sudanese regime under President Omar al-Bashir, indicted by the International Criminal Court (ICC) on charges of genocide in March 2009, continue to carry out mass atrocities in the war-ravaged western region of Sudan. A 2015 Human Rights Watch report found Sudanese government forces committing extrajudicial killings, mass rapes, and torture of civilians.
The recent attacks are similar to those committed over a decade ago. The Darfur genocide began in 2003 and, despite international condemnations and sanctions, violence against the civilian populations from the Fur, Zaghawa, and Masaalit ethnic groups by Sudanese government forces and militias continues with few signs of abating.
Current reports of mass atrocity in Darfur should not come as a surprise to the U.S. government and the international community. The Genocide Documentation Project is in the process of collecting declassified government documentation pertinent to the Darfur genocide and there are reports of nearly identical atrocities from as early as 2003.
On December 10, 2003, one confidential cable from the American Embassy in Khartoum titled “Violence Escalating in Darfur,” reports:
The language used in the cable insinuates that ethnic cleansing of the African tribes in Darfur was a priority for the Government of Sudan.
The National Geospatial-Intelligence Agency (NGA) released satellite imagery to the Archive in 2006 that reveals how quickly the conflict escalated after these early warnings, and the amount of destruction it wrought within a matter of months. In an aerial photo from January 2004 a village in Darfur is labeled as “undamaged.” However, right beside it, an image captured in April 2004 shows the village has been completely destroyed.
Nearly a dozen similar images show how rapidly forces destroyed local villages, burning homes to the ground and displacing thousands. Imagery of the Kalma Internally Displaced Persons (IDP) Camp shows the growth of displaced families living in tents in the area, coinciding with the destruction of the Darfur villages.
Accounts from Darfur victims arriving in IDP camps continued to pour in. Village raids, executions, mass graves, rape, and torture became more commonplace. One March 7, 2004, cable from the town of Tawilah in North Darfur notes, “civilians were being massacred and young girls raped by the milita.” Civilians in the area were being denied medical care and only those who were physically able could flee to IDP camps. Another cable from May 11, 2004, stated 90 men were executed in Nyla, South Darfur, while others were hung “by their arms until amputation [was] necessary.” Throughout the summer of 2004, testimonies “revealed patterns of violence and abuse perpetrated primarily by [Jinjaweed] forces.”
It wasn’t until September 9, 2004, that U.S. Secretary of State Colin Powell declared the atrocities in Darfur a genocide during a hearing before the Senate Foreign Relations Committee.
Since 2004, at least 300,000 people have been killed in the Darfur genocide. Documentation released to the Archive attests to longevity and severity of the crisis, and provides a solid foundation for advocates arguing for intervention 12 years later.
The Genocide Documentation Project, launched in January 2013 in partnership with the United States Holocaust Memorial Museum, explores the failures of the international community to prevent or effectively respond to past cases of genocide. Through detailed case studies, the project’s research seeks to inform international policies regarding the prevention of and response to genocide and mass atrocity. By examining the role of the international community in past incidents of genocidal violence, these case studies help shape the views of a new generation of policymakers both within the United States and around the world.