National FOIA Portal Should be Made Priority as Agencies Prepare for Decommissioning of FOIA Online: FRINFORMSUM 2/16/2023
FOIA Online Sunset is Imminent
FOIA Online is set to be decommissioned on September 30 of this year. More than a dozen agencies still actively use the service, raising questions about what they will do going forward: will they join FOIA.gov – which currently appears to stand the best chance of becoming the national FOIA portal that was mandated in the 2016 FOIA Improvement Act – or will they develop their own, siloed portals?
The question is a timely one, not only because Sunshine Week, the annual celebration of the public’s right to know, is fast approaching. With the joint National Archives and Records Administration (NARA) and Office of Management and Budget (OMB) announcement that all agencies must manage their permanent and temporary records in electronic format by June 2024, it is the right time for agencies to develop comprehensive, integrated IT solutions that will enable them to meet both their records management and FOIA obligations – while also moving in a direction that makes a true national FOIA portal a reality. To do so, agencies will need clear direction from OMB, NARA, and the Department of Justice.
The September 14, 2022, FOIA Advisory Committee meeting contained a discussion of the problems inherent in the sunsetting of FOIA Online, which was stood up by the Environmental Protection Agency, a relatively small agency that shouldered a disproportionate amount of the burden for maintaining a portal that was used by dozens of agencies at its height.
- Alex Howard, director of the Digital Democracy Project, initiated the conversation by suggesting that an assessment of what agencies have done since leaving FOIA Online, and how requesters have been impacted by the changes, would be helpful.
- Ben Tinga, a committee member from the business management firm OPEXUS, noted, “from an industry perspective that a lot of this is moving forward is currently an activity of agencies transitioning from their FOIAonline platform to other platforms. It looks like the experience is not so much process-focused but really in a market research phase where each one is finding the tools that best meet their needs.”
- The Department of Commerce’s Allyson Dietrick said of the sunsetting of FOIA Online, “We were one of the 20 or so affected agencies. In terms of input, there’s a short timeframe, even with the acquisition schedule. I’m not so sure how much work can be done in terms of the successor to FOIAonline, especially because agencies need to make their own choices about which software fits their needs going forward.”
These are all valuable perspectives, but they do not get us any closer to understanding what comes next. This is understandable in a sense; there are over 100 agencies that have FOIA offices, and without clear direction and guidance from the top, each agency will be left to its own devices. This is a clear instance where both the Department of Justice, OMB, and NARA need to weigh in, sooner rather than later.
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U.S. Declassifies Info on Chinese Surveillance Balloon Collected from U-2 Spy Planes
The State Department declassified information gathered from American U-2 spy planes on the Chinese surveillance balloon program last week. While much of the information was already public, the Washington Post notes that, “its wider publication to the media suggested an effort by the U.S. government to name and shame Beijing’s surveillance tactics,” as well as “to elevate China’s balloon espionage despite warnings from China’s Foreign Ministry that doing so could jeopardize bilateral relations.” (The U-2 spy planes have a fascinating history; visit NSArchive’s website for information on their collection of signals intelligence during the Cold War, and the secret history of Area 51.)
The Post reported this week that U.S. officials tracked the spy balloon since its launch from Hainan Island and that it initially appeared to chart a path towards Guam, possibly with the intent to spy on U.S. bases there and in Hawaii, but then its course suddenly changed. Officials are “now examining the possibility that China didn’t intend to penetrate the American heartland with its airborne surveillance device.”
This is the second notable instance of the Biden administration declassifying intelligence to promote national security and foreign policy objectives; last year the Biden administration declassified information to convince skeptics of the seriousness of Russia’s preparations to invade Ukraine.
DOJ Seeks to Pierce Attorney-Client Privilege Claims In Trump Document Case
Justice Department officials are seeking approval from Judge Beryl A. Howell, Chief district judge of the United States District Court for the District of Columbia (and who will step down from her post next month) to peel back claims of attorney-client privilege in the investigation of President Trump’s handling of classified documents. The New York Times reports that prosecutors are seeking approval of the crime-fraud exception in an effort to compel testimony from one of Trump’s lawyers, M. Evan Corcoran, who invoked attorney-client privilege when he appeared before a grand jury this month and refused to answer questions about his role in the investigation of classified documents at Mar-a-Lago.
The crime-fraud exception is used when prosecutors believe “that legal advice or legal services have been used in furthering a crime.” The exception was cited last year when another Trump lawyer, John Eastman, cited attorney-client privilege to hide records from the House committee investigating the January 6 attack. He was overruled by Judge David O. Carter, who cited the crime-fraud exception, thereby allowing the committee access to the records.
New From NSArchive: Launching the Clinton Administration Russia Policy in 1993
With the Cold War coming to an end and the Soviet Union dissolving, President Bill Clinton was determined not to miss a historic opportunity to help Russia transform into a democratic capitalist state, according to a set of declassified State Department records recently published by the National Security Archive.
The publication includes a transcript of the first Clinton-Yeltsin telephone conversation in 1993, an insightful transition memo from the outgoing Secretary of State, Lawrence Eagleburger, and a high-level briefing from Clinton’s top Russia aid, Strobe Talbott. The documents show Clinton, his advisers and their predecessors in the Bush administration wrestling with a number of key policy challenges, including the presence of nuclear weapons in three former Soviet republics, the rapidly plunging Russian economy, and rising tensions between President Boris Yeltsin and the Russian parliament in 1992. Even as Clinton pondered these important policy choices, he and his advisers felt deep personal empathy for the embattled Russian president and the reform project that he had embarked upon.
Declassified in response to Freedom of Information Act (FOIA) requests by the National Security Archive, these records are early highlights from a forthcoming reference collection on U.S.-Russia relations covering the entire 1990s. That set, US-Russian Relations from the End of the Soviet Union to the Rise of Vladimir Putin, will be published by ProQuest as part of the award-winning Digital National Security Archive series.
DNI Haines Delivers Keynote Address on Overclassification at PIDB Meeting, and Much More: FRINFORMSUM 2/2/2023
Public Interest Declassification Board Meets at LBJ Library
The Public Interest Declassification Board (PIDB) recently held a two-day conference at the LBJ presidential library to discuss classification issues and reforming the current executive order on classified national security information, EO 13526. The event was in-person but the keynote address from Director of National Intelligence, Avril Haines, as well as a series of panels, were taped and are available online. Highlights from the conference include:
- An Evening with Director of National Intelligence Avril Haines: Haines speaks with Adam Klein, Director of the Strauss Center for International Security and Law, on overclassification, and how it undermines both critical national security and democratic objectives. Haines notes that the war in Ukraine, space, and the cyber front are all areas where the need to share information has been hampered by the proliferation of classified material. Other noteworthy remarks include: technology has made it easier to leak and disseminate classified information; declassifying information generally requires more seniority than classifying it (troublingly, many employees remain uneducated on the standards for initial classification); and there are few work-related incentives to declassify information.
- Haines underscores the need to continue to work on the development of a system that “minimizes what is classified as an initial matter,” and facilitating the downgrading the declassification of information as it ages. She also addresses some of the steps the ODNI is taking to meet these challenges, including experimenting with artificial intelligence to reduce manual review of classified documents and reduce the FOIA backlog.
- LBJ Library Discussion on Presidential Records and the National Archives: A panel of current and former presidential library directors and historians talk about the relationship between the libraries and NARA, and how the declassification process works at the libraries. Declining staff and resources are a major theme for this panel. Historian Timothy Naftali’s remarks were especially astute, and he notes that NARA is not “wholly blameless,” particularly NARA leadership’s decision to “reimagine the processing, declassification, and release process” for presidential records. Naftali’s observations about the inefficiencies and backlogs exacerbated by the decision to consolidate classified presidential records in D.C., despite not having the funding to hire archivists and subject matter experts to oversee them at the new location, deserve special attention.
- Government Historians on Working with Classified Information: Historians working for the Department of State, the Department of Defense, and the FBI discuss their work with classified information. Adam Howard, the director of the State Department’s Office of the Historian, discusses the Foreign Relations of the United States (FRUS) series, which is “arguably the largest transparency project in the world”. (The State Department is statutorily obligated to publish a “thorough, accurate, and reliable” record of US foreign policy “no later than 30 years after the events that they document.”) Howard discusses the transparency importance of the FRUS, but should emphasize that the State Department has struggled to meet the 30-year deadline because of the actions of other agencies and their unwillingness to declassify material. The department’s Historical Advisory Committee (HAC) has laid much of the blame with the Department of Defense, stating that the DoD has “performed so negligently and so egregiously violated the requirements mandated by the Foreign Relations statute that it more than offset the commendable efforts of the other agencies and departments.”
- Erin Mahan, the Chief Historian for the Office of the Secretary of Defense, discusses the importance of historians having a seat at the table in a new executive order on classification, and a need for historians and records managers to have a “constant dialogue.” She points to the Argentina Declassification Project as a model of success for this type of interaction.
- John Fox, the FBI Historian, also discusses staffing problems at the National Archives, where many (but not all) historical records have been accessioned, and the bottleneck it causes when trying to declassify records.
- Classified Information and the Media: An interesting panel with reporters coming into contact with classified information. Panelists are Adam Goldman with the New York Times, Josh Gerstein with Politico, Dustin Volz with the Wall Street Journal, and Nomaan Merchant with the Associated Press.
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Is a Bipartisan Classification Fix Realistic?
House Oversight and Accountability Committee Chair James Comer (R-Ky.) recently said he believes that a “bipartisan fix” is possible to ensure that outgoing presidents and vice presidents don’t improperly maintain classified documents. The comments were delivered at the National Press Club and echo similar comments made by ranking member Rep. Jamie Raskin (D-Md.). Comer suggests the possible fix won’t be immediate, noting, “This just needs to happen prior to this administration going out of office and before the next administration comes into office.” In related news:
- On Tuesday of this week Gary Stern, counsel for the National Archives and Records Administration, sat for a transcribed interview with the Oversight committee. I will post a transcript of the interview if and when it becomes available.
- NARA has published Acting Archivist Debra Wall’s responses to questions from House Oversight concerning classified presidential records, and they are available here.
Archive Posting Highlights the First Months of U.S. Relations with the New Russia, 1992
The George H.W. Bush administration was reluctant to embrace the “relations of deep mutual trust and alliance” proposed by the newly independent Russian Federation and its leader, Boris Yeltsin, in early 1992, according to declassified U.S. documents, released thanks to National Security Archive FOIA requests. The documents show Yeltsin was eager for new and dramatic arms control arrangements that would exceed whatever former Soviet leader Mikhail Gorbachev had offered, and that Yeltsin sought American backing for Russia to take the Soviet Union’s place in a bipolar world. But the 1990s were the years of the American “unipolar moment” in geopolitics, and tragic years for Russia, where rule by decree replaced any parliamentary democracy, the economy collapsed twice into depression, and the legacy was a return to authoritarianism. These documents represent early highlights from a forthcoming reference collection covering the entire 1990s, US-Russian Relations from the End of the Soviet Union to the Rise of Vladimir Putin, to be published by ProQuest in the award-winning Digital National Security Archive series.
Should NARA Ask Living Former Presidents and VPs to Search Personal Holdings for Classified Info? FRINFORMSUM 1/26/2023
Classified Documents Found at Mike Pence Residence, Prompting NARA to Consider Asking Living Former Presidents and VPs to Search for Classified Records
“About a dozen” classified documents have been discovered at the Carmel, Indiana home of former Vice President Mike Pence. Matt Morgan, one of Pence’s lawyers, initiated the search after the discovery of classified documents at several Biden sites, and immediately contacted the National Archives and Records Administration (NARA) about the discovery. NARA in turn alerted the Department of Justice, which, along with the FBI, will investigate how the classified documents got there. Additional documents were driven to NARA for proper preservation under the Presidential Records Act (PRA). Pence’s team alleges that the documents were improperly retained because they were not boxed up by his office staff, but rather they were packed with other belongings at the Vice President’s official residence, the US Naval Observatory (which does contain a SCIF for handling classified materials).
The Pence revelation should underscore the need to overhaul compliance with the Presidential Records Act, particularly as it relates to classified material – and show that the issue is a bipartisan one, requiring a serious bipartisan solution.
It has also put NARA in the unique position of considering asking living former presidents and vice presidents to search their holdings for classified material.
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Inter-American Court Orders Opening of Military Archives
This week the National Security Archive commemorated the important Inter-American Court of Human Rights ruling in Flores Bedregal v. Bolivia, which found the State of Bolivia responsible for the 1980 disappearance of activist Juan Carlos Flores Bedregal, by posting key documents from the case. In a first, the court ordered the government of Bolivia to open historical military archives concerning the assassination and forced disappearance of Bedregal. This is the first time the regional court has insisted that a member state has an obligation to guarantee the right to truth by releasing military documents.
The documents published by the Archive include the testimony Archive senior analyst Kate Doyle provided the Court in February 2022, which addressed the right to truth and the right to information – including military archives – in cases of grave human rights crimes and crimes against humanity. Read more about the case here.
In Brief
- We are excited to announce that tonight’s in-person Busboys and Poets event discussing the Ayotzinapa case is sold out – but walk-ins are welcome as space permits. More information on the event can be found here.
Declassified U.S. Intelligence Documents Describe Taliban History with Illicit Narcotics Trade
On January 13 of this year, Hasibullah Ahmadi, head of Afghanistan’s Ministry of Interior’s counternarcotics department, asserted that drug trafficking from the country has dropped, but admitted this illicit trade continues in some provinces. These comments raise the question of the Taliban’s ties to the narcotics market and previous attempts to curb drug production. The declassified documents featured in today’s post, all released under the Freedom of Information Act (FOIA), are a selection from the new Digital National Security Archive collection, Afghanistan War and the United States, 1998-2017, which was published in December of last year. The three documents examined in this post detail the Taliban’s ties to international trafficking networks in the late 1990s and attempts to regulate the market in the early 2000s in an effort to curry favor from the international community. Taken together, the documents describe the Taliban’s ties to drug trafficking schemes and how poppy bans, even when effective, financially benefited the Taliban and associated trafficking consortiums.
As the early Taliban movement emerged, from 1994 to 1996, narcotics production skyrocketed in Afghanistan, with declassified documents asserting that the group aligned themselves with international drug traffickers. There were indications from U.S. officials that narcotics production in the country significantly increased following the Taliban’s control over large swaths of the country. In a now-declassified Secret May 2001 National Intelligence Estimate (NIE), the Office of the Director of National Intelligence outlined that by 2000 the country supplied an estimated 72% of the world’s “illicit opium”. This heavily redacted document included a map noting opium poppy growing areas in Afghanistan (page 26), and a chart showing rising opium cultivation between 1991 and 2000. The NIE noted that producers in Afghanistan had switched to supplying and producing more heroin over several years before 2001.
This analysis was reinforced by a now-declassified Top Secret December 1998 CIA research paper, prepared by the Director of Central Intelligence (DCI) Crime and Intelligence Center, and recently released under the FOIA to the National Security Archive. This heavily-excised Top Secret report details the explosion of the narcotics market under Taliban rule, noting the ties of the group to Quetta Alliance, an international drug trafficking ring, which shared ties to Osama bin Laden. Furthermore, this report asserts that the Taliban’s increasing role in the country caused the narcotics business to explode. The paper also assesses the group’s involvement in illicit drug traffic, stating that it included top Taliban leaders and that this trade intensified “over the last several years,” leading to immense profits for the fundamentalist organization. Notably, the DCI Crime and Intelligence Center states that Afghan narcotics suppliers had shifted towards international markets, beyond distributing to drug traffickers in Turkey. The paper outlines that Taliban fighters provided “logistic support” and “protection” for drug trafficking and laboratories within the country. Most significantly, the paper argues that the Taliban forged ties to the Quetta Alliance, a major regional trafficking group, and terrorist sponsor of Osama bin Laden.
This paper was not alone in describing the Quetta Alliance. A publicly-available August 1994 report compiled by the Drug Enforcement Administration (DEA) Intelligence Division, describes the Quetta Alliance as an alliance between three powerful trafficking groups operating out of Quetta, within Pakistan’s Baluchistan Province. The DEA report stated that this loose alliance was based on familial ties, and described the operation as “similar to a large manufacturing or service consortium.” This connected to the assertion in the aforementioned paper by the DCI Crime and Intelligence Center, which argued that once the Quetta Alliance became the dominant narco-trafficking group in southern Afghanistan, it provided financial support and recruits to the burgeoning Taliban.
By late 1999, the Taliban had banned poppy cultivation. This would be followed by a ban of opium cultivation and trafficking in July 2000, the latter in an edict by Taliban leader Mullah Omar. However, these bans did not interfere with trafficking and sale of opium or poppy. A declassified Secret July 2001cable from the Defense Intelligence Agency (DIA) stated that while the ban was primarily effective, it still substantially increased the Taliban’s revenue from illicit drug trafficking. The ban followed the U.N. Security Council resolutions 1267 and 1333, in 1999 and 2000 respectively, which condemned “the significant rise in the illicit production of opium” and demanded that the Taliban work to “virtually eliminate the illicit cultivation of opium poppy.” Later, the DIA cable notes that the Taliban likely weighed recognition from the international community from its own interests when considering an extension of the ban.
This now-declassified DIA cable further stated that while the Taliban’s ban would likely reduce the worldwide opium production by at least 50%, the ban resulted in the quadrupling of the Afghan price for opium, morphine base, and heroin – which were previously at record lows. The cable explicitly states that one year after the ban the Taliban was still benefiting substantially from drug revenues, “… chiefly from its taxes on continuing narcotics trafficking and from Taliban-owned narcotics stockpiles, whose value has increased substantially.” The DIA cable also notes that the ban would likely not have an impact on the U.S. over the coming months, because its main heroin sources were from Southeast Asia and Latin America. While the Taliban never faced having to weigh its interests in extending the ban due to the U.S. invasion beginning in October 2001, the DIA cable notes all of the influences that the Taliban would likely weigh in the decision making processing, including the potential recognition from the international community, major narcotics traffickers’ reactions to an extension, the size of stockpiles, and the impact on their own finances.
For more documents on the Taliban, see the Archive’s numerous sourcebooks, including the September 23, 2021, post, “Newly Published Documents Cast Doubt on Claims Taliban Will Give Up al Qaeda.”
Inconsistent Access to Visitor Logs Back in the Spotlight, NSArchive Busboys and Poets Event, and More: FRINFORMSUM 1/19/2023
President Biden Does Not Keep Visitor Logs for Private Residence, in Keeping with Trump’s Practice
The Biden administration announced this week that it maintains no visitor logs for President Biden’s personal residence. The news comes in response to a request for the logs from House Republicans following the discovery of classified records at the president’s home. The practice, or lack thereof, of not chronicling official visits to a president’s private residence may be an oversight, but it is not one unique to Biden. The National Security Archive learned during the course of its lawsuit for the Trump visitor logs that the Trump administration had no system for keeping track of presidential visitors at Mar-a-Lago, or any of the other Trump properties, where the president regularly conducted business.
White House visitor logs are created by the Secret Service and are not currently subject to Freedom of Information Act (FOIA) requests, despite the fact that they are agency-created records that provide the public a window into information to which it is fundamentally entitled – who seeks to influence the most powerful person in government. The Obama administration, after a 2009 settlement with Citizens for Responsibility and Ethics in Washington (CREW) concerning the visitor logs, agreed to post the records voluntarily 90 – 120 days after the visits took place (with some exceptions). The Obama White House ultimately posted nearly 6 million rows of data on who visited the president, without any compromise to personal privacy or national security. The records allowed journalists and citizens to track lobbyists and interest groups, and even determine the relative influence of, for instance, Google, versus the other tech companies.
A suit brought by Judicial Watch seeking a binding determination on access to White House visitor logs under the FOIA ultimately resulted in a 2013 appeals court decision, authored by current Attorney General Merrick Garland, that found “the president’s constitutional right to confidential communications means FOIA doesn’t apply to visitor logs kept by the Secret Service, even though a standard four-factor analysis of whether the logs are ‘agency records’ subject to FOIA was favorable to Judicial Watch.”
President Trump immediately reversed the Obama practice of voluntarily posting the logs, prompting a FOIA lawsuit brought by the National Security Archive, together with CREW and the Knight First Amendment Institute at Columbia University. The 2nd Circuit Court of Appeals ultimately ruled against us, focusing on the ostensible intrusion on a president’s ability to receive confidential advice. Despite this short-sighted ruling, the public has at last gotten a glimpse of the Trump-era logs. Recent Trump visitor logs released by the January 6 select committee, covering a handful of critical days surrounding the siege of the Capitol, “capture key moments pertaining to the Jan. 6 probe, such as the Oval Office meeting on Dec. 18, in which outside advisers, including Sidney Powell and Patrick Byrne, discussed the prospect of seizing voting machines.”
President Biden has resumed the Obama practice of voluntarily publishing visits to the White House complex, and they can be reviewed here.
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How to Rein in Overclassification: Simplify, Automate, and Fund Declassification
The discovery of classified records at several Biden sites has spawned a bevy of opinion pieces on how to further prevent such embarrassing and potentially compromising discoveries, namely be reducing overclassification. Some excellent reads include:
- Professor Matthew Connelly’s New York Times piece, “Why Do Documents Marked Secret Keep Showing Up in Strange Places?” My favorite suggestion is the following: “A rule with real teeth would require departments and agencies to match spending on public relations and advertising — in the case of the Pentagon, some $600 million a year — with spending on reviewing and releasing formerly secret information to the public.”
- The Washington Post’s Editorial Board opinion, “Another scandal regarding classified material: There’s too much of it,” says “The whole system needs to be fixed, and its dysfunction should not be ignored for another decade.”
- Josh Meyer’s USA Today article, “Biden and Trump documents expose wider problem: Missing classified records not uncommon,” which pays close attention to the serious funding and staffing problems plaguing NARA.
Generally speaking, the best bet to reduce overclassification (in a world where it would be politically feasible to do so) would be to: simplify the classification system, eliminating the “confidential” category, as suggested in the most recent report to the president by the Information Security Oversight Office, and adopting a more manageable two-tiered system; automate declassification and fulfill the requirement of the current executive order on classified national security information (EO 13526): and fund declassification programs, namely by investing in AI and other technological modernization.
That said, the Biden and Trump situations also highlight the equally urgent need to reform both the Presidential Records Act, and ensure that the White House also works with the National Archives (NARA) to appropriately prepare for transitions, much the same way agencies are required to do under the Presidential Transition Improvement Act of 2015.
Law Enforcement Access to Huge Money Transfer Database Without Court Oversight A Cause for Concern
More than 600 federal, state, and local law enforcement entities purportedly have access to the public Transaction Record Analysis Center (TRAC) database containing information on more than 150 million money transfers between people the U.S. and abroad – all without court oversight. (This TRAC is not to be confused with the Transactional Records Access Clearinghouse, which regularly publishes excellent FOIA data.) The Wall Street Journal exclusive, which is based on documents obtained by Senator Ron Wyden’s office and internal records obtained by the ACLU, notes that TRAC, a nonprofit established in 2014 by the Arizona state attorney general’s office, notes that the data includes personal information, like full names of both the sender and recipient and the amount of money sent (there is a minimum threshold of $500 to be captured in the database) – information that usually requires a warrant or subpoena to access. Agencies can search for information without a warrant, and the database “could be used to scan for categories such as ‘Middle Eastern/Arabic names’ in bulk transaction records.” The database can also capture domestic money transfers, including when “an American living in a border state” sends money to an American elsewhere in the United States.
Join the Archive’s Kate Doyle at Busboys and Poets on January 26 to Discuss the Ayotzinapa Disappearances
Kate Doyle, along with colleagues Anayansi Díaz-Cortes, from Reveal from the Center for Investigative Reporting, Mexican human rights lawyer Omar Gómez Trejo, and the director of the Washington Office on Latin America (WOLA), Stephanie Brewer, will be holding a panel discussion at Busboys and Poets in Washington, D.C. on January 26. The conversation will concern the 2014 forced disappearance of 43 Mexican college students, the “After Ayotzinapa” podcast, and the new investigation. Register for the event here.
DoD May Seek Expanded Authority to Classify Diplomatic Material in New EO on Classified National Security Information
The National Security Archive has learned that the Pentagon is seeking sweeping authority to classify historic diplomatic material in a new Executive Order on Classified National Security Information, a move that would be a serious blow to policymakers and the public. A September 2022 Politico piece, “White House launches new war on secrecy,” reported that there is a new effort at the National Security Council to rein in the existing sprawling classification regime, focusing specifically on revising the current Executive Order, EO 13526. Hopes among the transparency community were cautiously optimistic with news that John Powers, an NSC veteran who serves as the Associate Director for Classification Management for the Information Security Oversight Office (ISOO), will advise the effort. Now, however, there is cause for serious concern.
Archivist Bill Burr has written on the Defense Department’s “routine misuse” of the foreign relations exemption in the current EO (exemption 6). The Pentagon regularly and inappropriately cites it to withhold documents that are well over 50 years on the dubious grounds that their release would harm U.S. diplomacy. In addition to the fact that diplomatic matters are the purview of the State Department, the current EO clearly states that these historical records should be subject to automatic declassification, rather than ongoing secrecy. The only loophole for the ongoing withholding of historical records is under section 3.3 (h) (2), “in extraordinary cases” agencies can request permission to exempt “additional specific information.” In the Archive’ experience, the DoD does not meet this narrow threshold; instead, it often cites this exemption to inappropriately withhold information that has been previously declassified, further adding to concerns that a military agency is in a position to impose its views on U.S. diplomatic needs over the views of the State Department. The new EO should not give the DoD further leeway to needlessly withhold information, rather it should ensure the integrity of the declassification system by vesting the National Declassification Center with the authority to declassify historical records.
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Classified Docs at Biden Sites Raise Fresh Questions About how to Improve the PRA and Reduce Overclassification
News that classified documents were found President Biden’s office at the Penn Biden Center for Diplomacy in November 2022 – and at a second location in Biden’s personal residence in Wilmington, Delaware – has once again shone the spotlight on the inherent problems with the Presidential Records Act (which also covers the records of the vice president) and overclassification, even within presidential administrations that take records management seriously. It is possible, given the self-assessment nature of a president’s compliance with the PRA, that mistakes may be inevitable; however, introducing annual reporting requirements to the statute, as well as reducing rampant overclassification, which could be done by Executive Order, could help limit the number of times this happens by reducing the overall number of classified documents across the government.
There appear to be significant differences between the classified records fiasco with the Trump administration and with the Biden documents. The first is the volume of records: Biden had around 10 documents from his tenure as Vice President with clearly-visible classification markings in the first reported document discovery (it remains to be seen how many were discovered in the second), while Trump had hundreds – and countless other unclassified records that should have been returned to the government once he left office. The other issue centers on how they handled the discovery that they improperly retained records: the Biden team notified NARA of the mistake and returned the documents as soon as they were discovered, whereas the Trump administration was served a grand jury subpoena for the records and possibly obstructed their return to NARA (and at this stage of the Trump investigation, the issue of classification is not of primary significance).
It is unclear if the Biden documents would warrant front-page news if not for the Trump administration’s egregious mishandling of presidential records, including classified information, yet both raise serious concerns about the handling of national security information within the White House. The Hillary Clinton email saga also deserves a mention; while none of her emails were ultimately determined to be classified, all three revelations draw broader attention to lax records handling at the highest levels of government.
Vilém Prečan @ 90
The National Security Archive celebrates the 90th birthday of our longtime scholarly partner and moral inspiration, Vilém Prečan, this week with new, mobile-friendly publications of the four electronic briefing books he compiled and edited for the Archive, and the complete briefing book from the historic 1999 conference he organized with us on the Velvet Revolution of 1989.
Prečan’s distinguished career includes early landmark scholarship on Slovak history, the courageous documentation with “meticulous eyewitness accounts” of the Soviet occupation of Prague in August 1968, forced exile in the 1970s, the founding of the Czechoslovak Documentation Centre as the center of a large dissident network leading up to 1989, return to Prague as the first director of the new Institute of Contemporary History at the Academy of Sciences in the 1990s, and a key role in establishing the Václav Havel Library in 2004, among many other achievements.
From the Archive’s perspective, Vilém Prečan’s genius arises from two deep moral commitments. First is the urgency of skeptical inquiry that drives his lifelong challenge to authoritarianism. Second is the necessity of evidence, his insistence on preserving and publishing the primary sources that ground our mutual history and deflate polemics.
In Brief
- Mexico News Daily joins the Los Angeles Times and New York Times in naming “After Ayotzinapa,” which investigates the 2014 forced disappearance of 43 Mexican college students, one of the best listens of 2022. The podcast is the result of a partnership between the Archive’s Kate Doyle, reporter Anayansi Díaz-Cortes, and Reveal News from the Center for Investigative Reporting. The six-part Spanish adaptation, Después de Ayotzinapa, was made possible thanks to Adonde Media and Animal Político.
Deadline Extended for Agencies to Transition to Fully Electronic Records
The Office of Management and Budget (OMB) and the National Archives and Records Administration (NARA) recently issued a joint memorandum, (M-23-07), that extends the deadline by when all agencies must 1) manage all their records in electronic format, 2) transfer their permanent records to NARA in electronic format, and 3) manage their temporary records in electronic format (with limited exceptions) to June 30, 2024. This announcement updates the June 28, 2019, memo, (M-19-21), that established December 31, 2022, as the deadline, and cites COVID-19 as the reason for the extension.
The transition to all electronic records poses serious questions about the implementation of such a major policy change, especially one with no dedicated funding. For example, will agencies like the CIA, who have cut funding to their historical programs in the past, pay to have these historical paper records digitized? Or will they destroy them, or simply not transfer them to NARA? There are also lingering questions about how the mandate will be enforced and assessed (most agency records management reports are self-assessments, with occasional spot-checks from NARA officials).
In an effort to help address these concerns, M-23-07 states that by the end of 2023, NARA will issue both updated records management guidance and regulations, and establish Electronic Records Management (ERM) standards and requirements for procuring ERM services for the transition. Time will tell if the upcoming regulations have enough teeth to ensure that historical records are not lost in the transition.
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Biden Administration Unveils 5th National Action Plan Without Meaningful Input from Civil Society
The Biden administration has released the U.S. government’s fifth National Action Plan, ostensibly updating its commitments to the Open Government Partnership (OGP), an international coalition that the U.S. helped found and that works to make governments more transparent and accountable.
The Biden administration released draft commitments for public feedback over a two week period (an OGP requirement) over the winter holidays, but did so without a major press announcement to alert the public to the process. This lack of publicity adds fuel to speculation that the administration was not meaningfully committed to collaborating with civil society for its NAP commitments.
A close examination of the Freedom of Information Act (FOIA) section shows that the NAP does not offer new, robust commitments – opting instead to re-package existing transparency requirements. For example, the 2016 FOIA amendments require the creation of a national FOIA portal where a member of the public can go and request records from any government agency. The portal has been updated in fits and starts over the last six years, but is nowhere close to fulfilling the promise of the statute (and many agencies do not participate in the portal, especially members of the Intelligence Community). The NAP does not vow to finish building the portal, rather it pledges to enhance user experience of FOIA.gov “by developing an interactive tool to help members of the public more easily locate records”. This falls well-short of what is already required by the statute, and falls even shorter of what the FOIA community asked of the Biden administration during its limited NAP engagement sessions.
The public owes Alex Howard, director of the Digital Democracy Project, a debt of gratitude for diligently reporting on the Biden administration’s lack of transparency during the NAP process.
January 6 Select Committee Website No Longer Available
The website for the January 6 Select Committee, a product of the erstwhile 117th Congress, is no longer available. The website was shuttered on the first day of the 118th Congress – January 3, 2023 – shortly after the committee released its final report, as well as thousands of pages of supporting evidence. NARA will publish archived versions of all committee pages from the 117th Congress this spring, and hopefully the archived versions will be as robust as the original.
In the meantime, the Wayback Machine has captured the January 6 committee website, and the committee’s final report and publicly-available resources are available on GovInfo.
Latest Batch of JFK Assassination Records Released, Thousands Still Secret
The Biden administration released another installment of JFK assassination records in the final weeks of December 2022 – and sanctioned the ongoing withholding of nearly 3,000 records.
NARA published over 13,000 records as part of the most recent release, which were primarily CIA documents. This release means that 95 percent of the CIA’s JFK records are now public, and that five percent somehow still warrant ongoing secrecy, nearly 60 years after the assassination. In total, 515 document continue to be withheld in full, and 2,545 continue to be withheld in part.
The Kennedy Assassination Records Collection Act of 1992 (JFK Act) required that each assassination record be publicly disclosed in full by October 2017 – unless the President upholds an agency appeal and “certifies” that releasing a record would cause specific harm. Both President Trump and President Biden certified the postponement of some JFK records, and President Biden’s December 15, 2022, memorandum sanctions the ongoing withholding of 3,000 records until June 30, 2023. The memo also requires agencies to prepare “Transparency Plans” to ensure ongoing disclosure of records as the “harm associated with release of the information dissipates.”
The Public Interest Declassification Board (PIDB) announced in its blog, Transforming Classification, that it “intends to conduct a sampling of records that remain classified and meet with originating agencies to understand the rationale behind continued withholding from public release.”
In Brief
- The Los Angeles Times “Latinx Files” named “After Ayotzinapa” one of the best podcasts of 2022. The LA paper joins the New York Times in praising the podcast, which investigates the 2014 forced disappearance of 43 Mexican college students. The podcast is the result of a partnership between the Archive’s Kate Doyle, reporter Anayansi Díaz-Cortes, and Reveal News from the Center for Investigative Reporting.
NYT Deems “After Ayotzinapa” Among Best Podcasts of 2022, Updates to the Archive’s Ukraine Cyber Vault, and Much More from the Archive: FRIMFORMSUM 12/15/2022
NYT Names “After Ayotzinapa” One of 2022’s Best Podcasts
The New York Times has named “After Ayotzinapa” one of the “Best Podcasts of 2022,” calling it a “jaw-dropping account” that “implicates authorities at the highest level.” The podcast, which investigates the 2014 forced disappearance of 43 Mexican college students, is the result of a partnership between the Archive’s Kate Doyle, reporter Anayansi Díaz-Cortes, and Reveal News from the Center for Investigative Reporting (the Spanish-language version, “Después de Ayotzinapa,” was released in co-production with Adonde Media and Animal Politico).
The podcast is the latest in a multi-year effort by Doyle and Archive staff to find justice for the disappeared. The Archive has filed hundreds of Freedom of Information Act (FOIA) requests for U.S. documents on the students, its connection to the “war on drugs”, and U.S. security assistance to Mexico. The investigation of the 43 disappeared students remains ongoing, with the appointment of a new special prosecutor’s unit in Mexico in 2019, the publication of the third GIEI report, and sustained support from the international human rights community. The National Security Archive continues to investigate the case with our partners at Centro Prodh and Reveal.
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Archive Updates Ukraine Cyber Vault
The National Security Archive’s Cyber Vault project recently updated its Ukraine page with almost 50 new reports and studies covering the cyber aspects of Russia’s continuing occupation of Ukraine. The materials are a mix of records from the U.S. and foreign governments as well as from international organizations such as the European Union and NATO. Given the unusual role that cybersecurity firms are playing in the conflict, the new additions include a number of items from the private sector as well.
The Ukraine page’s highly detailed timeline of events has also been updated, making the document current as of December 14. The timeline covers more than just developments on the ground, such as important cyberattacks, government decisions, and policy pronouncements. It also serves as an expanding repository of summaries and links to analytical and theoretical articles about a wide range of issues raised by the conflict, such as why Russia’s cyber response has been relatively muted, the phenomenon of hacktivists working in tandem with governments, and the impact of unprecedented intelligence sharing between the United States and its allies.
Visit the National Security Archive’s Ukraine Cyber vault here.
The U.S., Canada, and the Indian Nuclear Program, 1968-1974
Canadian inspectors visiting the Canada-Indian Reactor (CIR) at Trombay in June 1968 were “unsettled” by information suggesting that India was heading toward the “development of a nuclear device,” according to a recently declassified U.S. State Department telegram obtained by the National Security Archive. Canadian nuclear experts later told U.S. diplomats that the reactor fuel had been irradiated at a level low enough to produce “weapons grade plutonium” and that, if India was seeking to produce plutonium, the reactor could generate up to 12 kilograms a year.
The document is among a new collection of declassified records recently published by the National Security Archive that shed light on the early years of the Indian nuclear program and U.S. policy toward India’s nuclear ambitions in the years before its first nuclear test in May 1974.
The Cuban Missile Crisis @ 60:POSTMORTEMS
In the immediate aftermath of the resolution of the Cuban Missile Crisis, Soviet leader Nikita Khrushchev met with the Czechoslovakian Communist Party leader, Antonin Novotny, and told him that “this time we really were on the verge of war,” according to minutes of their October 30, 1962, meeting posted today by the National Security Archive. “How should one assess the result of these six days that shook the world?” he pointedly asked, referring to the period between October 22, when President Kennedy announced the discovery of the missiles in Cuba, and October 28, when Khrushchev announced their withdrawal. “Who won?” he wondered.
To “assess the result” and the implications of those dangerous days when the world stared down what Kennedy aide Theodore Sorensen called “the gun barrel of nuclear war,” the National Security Archive is posting a final collection of postmortem documents, concluding its series on the 60th anniversary of the Cuban Missile Crisis. In addition to the summary of the Khrushchev-Novotny meeting, the selection includes correspondence from Khrushchev to Castro, Castro’s own lengthy reflections on the missile crisis, a perceptive aftermath report from the British Ambassador to Havana, and a lengthy analysis by the U.S. Defense Department on “Some Lessons from Cuba.”
Read the entire posting on the National Security Archive’s website.
In Brief
- CEO Express, a portal focusing on business research, has named the National Security Archive an essential journalist resource for reporters interested in public records.
New Digital National Security Archive Document Collection Covers 20-Year U.S. War in Afghanistan
The National Security Archive, along with our scholarly partners at ProQuest, is publishing a timely collection on the 20-year U.S. war in Afghanistan. The new Digital National Security Archive (DNSA) collection, The Afghanistan War and the United States, 1998-2017, offers a trove of revealing documents focusing on the Bush-43 and Obama years. Largely the product of decades of Freedom of Information Act (FOIA) requests, these records from the State Department, CENTCOM, Defense Intelligence Agency, and other agencies explore the overall experience, as well as the problems that bedeviled the American-led occupation.
The result is a collection consisting of 2,261 documents totaling approximately 14,353 pages. While the bulk of the documentation was produced between 2001 and 2011, the collection also encompasses events during both the first Afghan Civil War (1992-1996) and the second Afghan Civil War (1996-2001).
The records in this collection shed light on topics long hidden from the public, including but not limited to:
- U.S.-Afghan diplomatic relations,
- reconstruction and endemic corruption,
- the mismatch between Afghan realities and American intentions for a new centralized government and modernized army,
- Pakistan’s strategy of taking U.S. aid while providing sanctuary to the Taliban,
- narcotics and counternarcotics efforts,
- Al-Qaeda-Taliban relations,
- “mission creep,” as the counterterror effort against al-Qaeda morphed into a nation-building war against the Taliban, and
- U.S. military counterinsurgency strategy.
The collection also bookends the Digital National Security Archive’s first Afghanistan collection, Afghanistan: The Making of U.S. Policy, 1973–1990, and represents the culmination of over 35 years of work by the National Security Archive’s Afghanistan project. The project began in 1986 with dozens of classified U.S. documents that were seized by student revolutionaries during the 1979 Iran hostage crisis and later published by the Iranian government. In the decades that followed, members of the Afghanistan project team sent thousands of FOIA requests to help inform U.S. policy towards a country that has been central to some of the 20th and 21st centuries’ most important episodes. While the situation in Afghanistan has changed much over the decades, the challenges facing the Afghan project team have remained consistent: critical documentation on U.S. policy towards Afghanistan and its central players remains shrouded in secrecy, while U.S. agencies have denied many of the Archive’s FOIA requests for dubious reasons.
To learn more about DNSA, and how to get a free trial subscription, visit our website.
The Archive is deeply saddened to announce the recent passing of senior fellow Dr. John Prados, a celebrated military and intelligence historian and one of the founders of the Archive.
A prodigious author and researcher, John leaves behind a whole bookshelf of highly informed, well documented volumes covering military and intelligence history from the battle of Leyte Gulf in World War II, through Dien Bien Phu, the entire Vietnam War, the invasion of Iraq, and so much more. Among his 27 books, several of them translated into French, a highlight was his biography of William Colby, which argues that the CIA director’s accommodating approach to congressional investigations in the 1970s of Agency wrongdoing actually saved the CIA.
John was a self-described “man of the 60s” who swam against many currents. He practically invented the title “independent scholar,” not least because in multiple periods of his life he earned his living less from his books and teaching than from designing war games, another indication of his wide-ranging interests, and reflecting his deep fascination with replaying history—games of strategy that reinforced his scholarly findings about agency and contingency. Things didn’t have to turn out the way they did. Human choice made a difference, while circumstances often ruled.
The Archive remembers John and his many contributions to transparency and national security scholarship in a special web posting to honor his life and work.
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