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More Dubious Secrets Found in Intel.gov’s Tet Declassified Project, and More: FRINFORMSUM 8/9/2018

August 9, 2018

Intel.gov’s Tet Declassified A Step Backwards – More Dubious Secrets

Did Intel.gov post new, high-quality documents for the first release of its Tet Declassified project? In short, no. The National Security Archive’s John Prados, an expert on Vietnam and the intelligence community, examined the documents and found that, not only were the photos of reconnaissance missions blurry to the point of being unreadable, but the versions of documents posted most recently by Intel.gov were MORE redacted than previous releases of the exact same documents. Prados, pointing to several Presidents Daily Briefs that were published in 2015 by the CIA and that are inexplicably more redacted in the latest Tet release, notes that “the Tet collection is actually a step backwards. The people who assembled this Tet collection removed previously declassified text that had been already released.”

The Tet Declassified project inexplicably posts documents that have been previously released with far fewer redactions, such as this November 14, 1967 PDB.

Rather than spending 18 months and finite government resources building a website that re-releases less information than is already publicly available, the government and the public would be better served by adopting a “let it go” mentality for historical records.

Who Really Runs the VA?

Hundreds of documents obtained through FOIA help show the unprecedented influence of three Mar-a-Lago members over the Department of Veterans Affairs. The documents reveal that Marvel Entertainment chair Ike Perlmutter, lawyer Marc Sherman, and Palm Beach doctor Bruce Moskowitz have an arrangement with President Trump and the VA leadership that “is without parallel in modern presidential history.” The trio hover “over public servants without any transparency, accountability or oversight. The Mar-a-Lago Crowd spoke with VA officials daily, the documents show, reviewing all manner of policy and personnel decisions. They prodded the VA to start new programs, and officials travelled to Mar-a-Lago at taxpayer expense to hear their views. ‘Everyone has to go down and kiss the ring,’ a former administration official said.”

Senate Democrats file FOIA Request for Kavanaugh Documents 

Democrats on the Senate Judiciary Committee have taken the “unprecedented step” of filing a series of FOIA requests to obtain records on Supreme Court nominee, Brett Kavanaugh – a step senators should not have to take to conduct oversight. The FOIAs, submitted to the CIA, the National Archives, the Department of Justice and the Department of Homeland Security, seek “documents tied to Kavanaugh’s three-year period as staff secretary for President George W. Bush.” The senators are seeking expedited processing of their request – an ask that is rarely granted to regular requesters. (The Senate Judiciary Committee also has oversight over FOIA, so if their requests languish or are over-redacted like most, the silver lining might be a push for more FOIA reforms.)

School Board Releases Highly Redacted Report on High School Shooter Nikolas Cruz – That is Totally Unredacted When Pasted into Microsoft Word

Journalists at the South Florida Sun Sentinel reporting on Nikolas Cruz, the gunman in the Marjory Stoneman Douglas High School shooting, won the release of a report commissioned by the local school district assessing how effectively the school dealt with Cruz before the shooting. The report was released in response to an order from Broward County judge, Elizabeth Scherer, and was more than 60% redacted. The heavy redactions made hid two incidents identified in the report where the school failed to deal appropriately with Cruz. The paper was alerted by an intrepid reader after publishing the initial report that, if you copy and pasted the text in Microsoft Word, the entire text was visible. The unobstructed text showed that, among other things, the school “did not follow though” on Cruz’s request to be transferred to a school for special education students. Lawyers for the school board are asking the judge to hold the paper and two of its reporters in contempt for publishing the unredacted version of the text.

Georgia Election Integrity

Open records requests in Georgia are helping shed light on the state’s election security in the lead-up to the 2016 election, and what the state’s Center for Election Services did and did not to do address the problem before and after the election.

In August 2016 the Georgia Center for Election Services was notified that their voting system and software were “completely open” and could be manipulated. In October, a Center scan showed “’40+ critical vulnerabilities’ in the election server, ‘most if not all’ of which the Center’s technical coordinator, Steven Dean, said would be solved by updating software.” In February 2017 cyber professionals found they were still able to access the state’s voter rolls, including Social Security numbers and other personally identifiable information. In October 2017, “Cristina Correia, Georgia’s assistant attorney general, divulges in response to an open records request that the Center’s election server and a backup server used in 2016 were wiped clean on March 17.”

The timeline takes on special significance in the wake of Special Counsel Robert Mueller’s July 13 indictment of Russian intelligence officers indicating that they “visited the websites of certain counties in Georgia” and other states to probe for vulnerabilities.

Excessive U.S. sanctions could push Iran “over the brink”: UAE official to U.S. in 1995

U.S. allies from Europe and the Persian Gulf warned the Clinton administration that it would be “very dangerous” and “pose risks for the entire region” if Iran were isolated from the international community through overly burdensome sanctions, according to declassified cables recently published by the Archive. 

While most allies agreed that up to a point sanctions could have a positive effect on Iranian behavior, they argued that overly severe measures could cross a threshold that would not only fail to produce a strategic advantage but could backfire by inviting a sharply negative Iranian reaction.

The posting includes a number of additional State Department cables that provide important context for understanding subsequent U.S. thinking about sanctions toward Iran, as well as background for today’s announcement that the United States has moved to restore certain trade sanctions against Tehran.

TBT PICK – Washington Post Op-Ed Highlights Dubious Secrets

This week’s #TBT pick is chosen with “dubious secrets” in mind, and is a 2015 Washington Post op-ed from our Executive Director, Tom Blanton, on America’s ongoing overclassification problem. Blanton points out some uncomfortable truth for secuorocrats:

Let me get the suspense over with. Here’s a classified fact: We, the United States, based medium-range ballistic missiles carrying nuclear warheads in Turkey in 1962, which angered Soviet leader Nikita Khrushchev so much that he put his own into Cuba.

Wait: I’ve read all about that. It’s been declassified, hasn’t it?

Well, yes. Except — in the immortal words of John F. Kennedy — “there’s always some son of a bitch who doesn’t get the word.”

The word is the Cold War is over, yet Cold War secrecy rules still control the government’s information systems.

The Defense Department still can’t bring itself to declassify nukes in Turkey, and Italy, and the 50 or so other countries where we idiotically stationed them during the Cold War.

Here at the National Security Archive, in our “Dubious Secrets” series, we have published hundreds of U.S. government documents that one office or official considers declassified, while another insists must stay secret. Whom do you listen to?

We have two versions of the same page of White House e-mail, addressed to then-deputy national security adviser Colin Powell, with the top and bottom blacked out from one review, and the middle blacked out from another, 10 days later. Turns out it was the same reviewer both times. So goes the highly subjective process of classification.

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New Tet Documents? Not So Much.

August 7, 2018

The Tet Declassification Project inexplicably posts documents that have been previously released with far fewer redactions, such as this November 14, 1967 PDB.

In one of his last actions as Director of National Intelligence, in December 2016 James R. Clapper announced a new declassification review of secret intelligence records on the Tet Offensive, in Vietnam in 1968. I remember thinking at the time how odd it was that something that had been so extensively researched could be conceived of as either a contribution to current events, or to transparency for the intelligence community in the 21st Century.

It turns out that the story is both more—and less—than what I originally appreciated. Clapper did not actually order the Tet review. What he did do was to instruct a panel of intelligence community historians to recommend topics for declassification and release—to quote the official press release, “as a part of the [intelligence community’s] continuing efforts to enhance public understanding” of its activities. Director of National Intelligence Dan Coats made the decision to have agencies “identify classified records pertaining to the Tet Offensive and review them for declassification.” The first set of these records was made public on July 29.

Looking over this first batch of two hundred documents, I have to wonder what took all this time to accomplish. Perhaps it was the pretty website at intelligence.gov. It certainly was not “review and declassification”—I’ll come back to that in a moment. Nor was it comprehensivity. There is some value in bringing together a bunch of this Tet material in one place, but beyond that the collection is a grab bag, assembled in only a general chronological order, and missing key material which exists, but presumably is being held back for future releases planned for January and April 2019.

The virtue of the documents here is that they remind us that Tet was a surprise, Walt Rostow’s protestations to the contrary. A declassified record of President Lyndon Baines Johnson’s meeting with the Joint Chiefs of Staff and senior advisers on January 29, 1968—24 hours ahead of the attack—shows the president’s concern with attacks in Vietnam wholly centered on Khe Sanh, with the rest of his attention drawn to the military resources available to respond to North Korea’s seizure of the spyship U.S.S. Pueblo.

Not a high quality reproduction.

That may be a new record, I would need to do a more extensive check to be sure. But almost everything else here—the CIA postmortem on the surprise, the November cable from agency analysts in Saigon giving the warning Rostow did not take, the reports on Hanoi’s views of negotiations, and much more, was already on the record. What appears to be new is primarily spot reporting on individual photo reconnaissance missions, which are nice, but very much down in the weeds. It is an index of the lack of care lavished on this project that, even here, where intelligence community reviewers could have gone into the records to obtain fresh, current-technology reproductions of the aerial photographs they are featuring, and the section maps which show the land overflown, we instead find fifteenth-generation photocopies which are completely useless. Such documents are quite unlikely to attract the public’s attention, hence will hardly contribute to the public’s understanding of intelligence.

Higher-level material is where the public can learn more, but here the declassification is missing from the review. I will offer only five examples, though the first is a multi-document set. Dated from February 2, 1968 (though the date of the first of this series is January 10), these intelligence memoranda, mostly from CIA’s Office of Current Intelligence, relate to the North Vietnamese threat to Khe Sanh. There is some good information here. In fact I used it in a book I published in 1991. The Khe Sanh documents were declassified under FOIA in July 1985. While the documents in this set bear a declassification date of July 26, 2018, the redactions in the material are identical to the ones in the copies I have had on file for decades. In fact the images in the new release appear to be from the very same copy of the papers.

Next, consider the Special National Intelligence Estimate (SNIE) 14.3-67 on the North Vietnamese and Liberation Front strength. The copy in my file was declassified on May 7, 1984. This SNIE is the one at the heart of the fierce dispute between the CIA and U.S. military commanders about the enemy “order of battle.” It became a focus of the Westmoreland v. CBS trial in the 1980s, and in fact was originally released to be trial evidence. The page that was withheld in 1984 is still missing from the copy released in July 2018.

More needless redactions found in this January 2, 1968 PDB.

How about the President’s Daily Brief (PDB)? The CIA made a big show of releasing this material a few years ago, even hosting a conference at the Johnson Library in Austin, Texas. I noted at the time that this wasn’t really releasing the PDBs, rather the bureaucrats were simply opening up these files for further declassification work as scholars filed new review requests. That continues to be true. But the Tet collection is actually a step backwards. The people who assembled this Tet collection removed previously declassified text that had been already released—everything that was not about Vietnam. I selected three dates at random from the Tet collection. The PDB for November 2, 1967 contains material on Soviet ballistic missile defense radars, the USSR, the Congo, and Panama which is not present in the version included in the Tet collection. The PDB for November 14, 1967 covers Russia and Algeria, except if you look at the copy with the Tet papers. The PDB edition of January 2, 1968 contains material on the USSR, Yemen, Iran, and Finland, except that you won’t read it here. And woe to anyone who asks for new declassifications based on the versions of these documents in the Tet collection. All those items just mentioned would be reviewed as if they were classified.

This is a serious matter. Openness and transparency are seriously underfunded in the United States government as it is. Some proportion of those scarce resources have been diverted for 18 months into a project that accomplishes little, if anything. When the DNI says “review and declassify” that should mean what it says—more than cursory tweaks to a few documents while assembling others for scanning.

 

ODNI’s Tet Declassification Project Releases Documents, New Info on Eligible Receiver 97, and More: FRINFORMSUM 8/2/2018

August 2, 2018

Tet Declassification Project Releases First Batch of Documents

The Office of the Director of National Intelligence recently published the first set of documents for its Vietnam War Tet Offensive declassification project. The sleek website dedicated to the project includes a documentary of Intelligence Community historians discussing the Offensive and a bibliography for the project; all of the documents released to date can be found here. Two additional sets of documents will be published in January and April of 2019.

Earlier this year ODNI director Dan Coats directed the Intelligence Community “to review their holdings to reveal previously classified details to the public” to commemorate the 50th anniversary of the Tet Offensive. The move came a year after former ODNI head James Clapper “instructed the Intelligence Community Senior Historians Panel to identify topics of historical interest for declassification and release, as a part of the IC’s continuing efforts to enhance public understanding of IC activities.”

John Prados, the Archive’s Vietnam Project director, will have an analysis of the release next week. For interested scholars and researchers, the Archive’s Vietnam Project has a number of declassified documents on the Offensive.

Eligible Receiver 97: Seminal DOD Cyber Exercise Included Mock Terror Strikes and Hostage Simulations

An early classified Defense Department cybersecurity exercise named “Eligible Receiver 97” (ER97) featured a previously unpublicized series of mock terror attacks, hostage seizures, and special operations raids that went well beyond pure cyber activities. The exercises demonstrated the potential scope of threats to U.S. national security posed by attacks in the cyber domain, according to recently declassified documents and a National Security Agency (NSA) video posted by the Archive.

ER97 involved an NSA Red Team playing the role of North Korean, Iranian and Cuban hostile forces whose putative aim was to attack critical infrastructure as well as military command-and-control capabilities to pressure the U.S. government into changing its policies toward those states. An interagency Blue Team was required to provide recommendations to personnel enacting defensive responses. Until now, only two phases out of three (infrastructure and command-and-control) had been publicly known. The video and documents posted by the Archive provide new details about the third phase involving kinetic attacks in the physical domain – i.e. more traditional terrorist assaults on civilian targets – which were built upon intelligence gathered through the Red Team’s successes.

Judge Lets Secret Service Hide White House Visitor Logs

Federal Judge Katherine Failla agreed with government lawyers and is allowing the Secret Service to hide the White House visitor logs in a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW). Judge Failla, of the Southern District of New York, relied on a 2013 D.C. Circuit ruling in finding that the visitor logs for core White House offices are not subject to the Freedom of Information Act, although she agreed that certain other parts of the Executive Office of the President are covered.

“Our suit gave the court a chance to address the transparency deficit in the Trump White House, but the court ducked,” said Archive director Tom Blanton.  “Letting the Secret Service hide their records of everyone who lobbies the President is the opposite of what the Freedom of Information Act holds as American law and American values.”

Air Marshals Say Surveillance Program Shouldn’t Be Considered Surveillance

The Transportation Security Administration’s Air Marshals “have for years been quietly monitoring small numbers of U.S. air passengers and reporting on in-flight behavior considered suspicious, even if those individuals have no known terrorism links.” The surveillance program, called “Quiet Skies,” raises serious privacy concerns. It has been in place since 2010 and instructs agents to track passengers flying within the United States for purportedly suspicious behavior like sweating heavily and repeatedly using the restroom. According to the Washington Post, “marshals use an agency checklist to record passenger behavior: Did he or she sleep during the flight? Did he or she use a cellphone? Look around erratically?” A TSA spokesperson said that the program should not be considered surveillance “because the agency does not, for example, listen to passengers’ calls or follow flagged individuals around outside airports.”

Congress Says BMD Flight Test Schedules Must Be Unclassified

Congress told the Pentagon’s Missile Defense Agency that the flight test schedules of ballistic missile defense systems must be unclassified. The congressional action comes on the heels of the Defense Department classifying the schedule, which had previously been both unclassified and publicly disclosed. The requirement is included in the FY 2019 National Defense Authorization Act and “will effectively override the classification judgment of the executive branch. That is something that Congress rarely does and that the executive branch regards as an infringement on its authority.”

TBT Pick – Japan Plutonium Overhang

This week’s #TBT pick is chosen with Japan’s recent pledge to reduce its plutonium stockpiles, a possible major turning point for nuclear nonproliferation efforts, in mind. This week’s #TBT pick is a 2017 posting from our Nuclear Vault, showing that Japan’s long-standing aspirations to develop a “plutonium economy” troubled U.S. officials going back decades as early as the Jimmy Carter administration. Read the growing body of records that examine the history of Japan’s nuclear program here.

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FOIA Request Seeks More Info on Citizenship Question for 2020 Census, and More: FRINFORMSUM 7/26/2018

July 26, 2018

Commerce Sec. Wilbur Ross. Win McNamee/Getty Images.

Emails Shed Light on Contentious Census Question

Redacted Commerce Department emails released as part of an ongoing lawsuit show that the Trump administration discussed adding a citizenship question to the 2020 census within months of Trump taking office. The 600-plus emails, which NPR has filed FOIA requests for to help peel back the redactions, contradict the administration’s earlier claims that the question was being added at the request of the Justice Department to better enforce the 1965 Voting Rights Act. The emails instead show that in May 2017 Steve Bannon, then President Trump’s strategist, tasked Commerce Secretary Wilbur Ross with talking “to someone about the census.” A month later, Secretary Ross’ aid “pledged to press Justice Department officials to say they needed better citizenship data for law enforcement.”

Interior Department’s “Inadvertent” FOIA Release Shows Bias Towards Developers in National Monument Battle

Emails released by the Interior Department in response to a FOIA request show that, during the course of a review of 27 national monuments that place the designated lands off limits to developers, agency officials “dismissed evidence that these public sites boosted tourism and spurred archaeological discoveries.” Comments made in the documents – which the Interior Department later retracted, arguing it had “inadvertently posted an incorrect version of the files” – show Interior Secretary Ryan Zinke and others “tailored their survey of protected sites to emphasize the value of logging, ranching and energy development that would be unlocked if they were not designated national monuments.” The department also dismissed analysis that the “existing restrictions had not hurt fishing operators and agency reports finding that less vandalism occurred as a result of monument designations.”

The FOIA release also shows the Interior Department did not plan to incorporate any material submitted though public comments to their regulatory proposals, as is typically the case. A DOI official says instead, “’barring a surprise, there is no new information that’s going to be submitted’ through the public comment process on the monuments review.”

Michel Camdessus, head of the IMF, looks on as Indonesian President Suharto signs an agreement in Jakarta (1998). AP Photo.

Twenty years after Suharto’s Downfall

Newly declassified records released by the National Security Archive show that the Clinton administration sought to preserve close ties to the Indonesian Armed Forces as President Suharto’s rule came to an end in May 1998, even as the Army carried out significant human rights abuses. Documents show that US officials were aware of the military’s involvement in kidnappings and disappearances of student activists going on at the time but saw preservation of the Army’s role as central to political stability in the country.

Get the whole story here.

How the New York Times Uses FOIA to Make Headline News (Hint: It Sues)

“In the case of Scott Pruitt’s E.P.A., were it not for FOIA, we certainly would not have been able to do as much as we did or tell the kinds of stories that we were able to tell.” This is according to New York Times’ climate and environmental policy reporter Lisa Friedman for an article on how the paper uses FOIA to break stories – which it (and others) did with such success in Pruitt’s case that he ultimately resigned.  The article underscores the importance of filing appeals and, increasingly, suing. Of the importance of lawsuits in FOIA’s news-breaking success, Times’ reporter Charlie Savage says, “FOIA is basically useless if you don’t file a lawsuit to force the government to act.”

City of Houston Issues Benchmark FOIA Indictment for Failure to Release Documents  

Darian Ward, the former press secretary for Houston mayor Sylvester Turner, was recently indicted by a grand jury for “violating state law by failing to turn over public records in response to a reporter’s request late last year.” The District Attorney’s office says Ward lied about the number of responsive records about Ward’s personal business activities – of which there were roughly 5,000 pages of emails – and unlawfully withheld the records. Many of the emails “dealt with reality shows she was pitching to television networks or a charity for which she served as an adviser.”

If convicted, Ward could face up to six months in jail or a maximum fine of $1,000.

USCIS’ FOIA System Raises Questions About Automation 

The U.S. Citizenship and Immigration Service is rolling out the next phase of its “Freedom of Information Act Immigration Records SysTem (FIRST) — a system that will ‘eventually’ allow requesters to navigate the entire FOIA process digitally.” USCIS announced that now requesters who file FOIA requests with the agency can expect a response to be emailed to them, although requests still need to be sent via fax, email, or mail. USCIS says that when the program is completed in September, “requesters will be able to use a completely digital FOIA/PA system, from online submission to retrieving and downloading responsive documents.”

The USCIS news comes on the heels of the decreased functionality of FOIAonline, which the site says is temporary. The USCIS announcement begs the question of why agencies are pursuing individual programs that are, in effect, individual agency FOIA portals, when the 2016 FOIA amendments mandates that there be a single, government-wide FOIA portal?

A Chief FOIA Officers meeting held on July 19 further addressed agencies’ growing interest in using automation to respond to FOIA requests and to reduce backlogs.

Time will tell how much automation will help, given that “new data from the Justice Department shows half of the agencies that receive the most open records requests saw their backlogs increase.” And because Chief FOIA Officers argue that “At the end of the day, a human needs to sit and review records, and make judgment decisions, and a computer can never do that,” it is unclear that more efficient technology would necessarily result in more common sense FOIA releases.

TBT Pick – U.S. Embassy Tracked Indonesia Mass Murder 1965

This week’s #TBT pick is a 2017 posting showing that the U.S. Embassy in Jakarta tracked had detailed knowledge that the Indonesian Army was conducting a campaign of mass murder against the country’s Communist Party. More postings from our Indonesia Documentation Project can be found here.

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OGIS Issues First Advisory Opinion, a Pattern and Practice Case to Watch, and More: FRINFORMSUM 7/19/2018

July 19, 2018

OGIS Issues First Advisory Opinion

The Office of Government Information Services (OGIS), the federal FOIA Ombuds office, issued its first advisory opinion this week. The substance of the opinion, which addresses agency communications with FOIA requesters, is useful if uncontroversial.

OGIS has had the authority to issue advisory opinions since its founding in 2007, and open government advocates have long urged it to use this potentially powerful tool. An OGIS blog post addresses the wait, noting “While we have had the authority to issue advisory opinions since our creation, prior to the passage of the FOIA Improvement Act, OGIS could only issue advisory opinions for individual disputes if mediation had not resolved the dispute.  For several years OGIS struggled with how to reconcile its authority to issue advisory opinions with its ability to be an impartial party that can facilitate the resolution of disputes between requesters and agencies.”

The National Security Archive is pleased to see that OGIS has begun using its statutory authority, and hopes this opinion is followed by many more that will deal with thornier issues of agencies systemically skirting FOIA requirements.

FOIA Pattern and Practice News

In a FOIA pattern and practice case brought by Judicial Watch that bears watching, the Court of Appeals for the District of Columbia remanded the case back to the District Court after the lower court ruled Judicial Watch “had failed to plead sufficiently egregious facts” in a suit seeking “an injunction that would make the Secret Service respond to future requests in a timely manner rather than make the group file litigation each time requests were made.” As Scott Hodes notes, “Up to this decision, pattern and practice claims in FOIA had to allege either agency misconduct or good faith agency error in interpreting FOIA exemptions.  Neither were alleged here, only the facts that the requester made requests, they were ignored until lawsuits were filed, and then the material was released.  The Court found these unexplained delays were enough to allow an inference of a practice of delay.  This ruling will allow the case to proceed at a lower level, where the Secret Service will now have to explain that its delays are not a pattern or practice unsupported by the FOIA.”

One of Kavanaugh’s Last D.C. Court of Appeals Rulings A Blow to FOIA Requesters

Jefferson Morley has a must-read article in the Intercept on SCOTUS nominee Brett Kavanaugh’s ruling in Morley’s long-running FOIA case, finding that Morley was not entitled attorney’s fees. The government is typically required to pay attorney fees when it loses a FOIA lawsuit, as it did in Morley’s case, in an effort to prevent agencies from capriciously denying records on arguments that wouldn’t stand up in court. But in this instance (the suit for attorney fees itself lasted an eyebrow-raising 8 years) Kavanaugh ruled against Morley, arguing that the FOIA request was for records of only “marginal” interest and that the CIA had acted “reasonably” in its response.

In her dissent, Judge Karen Henderson points out that the very same court had “previously determined that Morley’s request sought information ‘central’ to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies.” Henderson also wrote that Kavanaugh’s opinion “ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.”

Amusing Archival FOIA Finds

War on the Rocks has a fun read on declassified documents from the Cold War that are – perhaps surprisingly – pretty funny (and a little unnerving). Several of the documents come from the National Security Archive’s vaults, including an interview conducted by the Department of Defense contractor BND Corporation with a senior Soviet military officer, Andrian A. Danilevich. In the document Danilevich recounts an early 1970s exercises that attempted to measure the consequences of nuclear first strike:

“During the exercise three launches of ICBMs with dummy warheads were scheduled. Brezhnev was actually provided a button in the exercise and was to ‘push the button’ at the appropriate time. Marshal Grechko was standing next to him and I next to Marshal Grechko. When the time came to push the button, Brezhnev was visibly shaken and pale and his hand trembled and he asked Grechko several times for assurances that the action would not have any real-world consequences. ‘Andrei Antonovich, are you sure this is just an exercise?’”

Recent Releases Shed Light on IC’s Reactions to Trump Tweets, Steele Dossier

BuzzFeed News’s Jason Leopold had a duo of interesting stories this week based on documents recently released in response to FOIA lawsuits.

One release shows that the Office of the Director of National Intelligence “deliberately concealed how the agency came into possession of a dossier prepared by a former British intelligence officer that alleged Russians had been ‘cultivating, supporting and assisting’ Donald Trump.”

The second release shows that Adm. Mike Rogers, former head of the National Security Agency, instructed his staff not to “get sucked in” to an exchange with President Trump after Trump lashed out against the Intelligence Community over Twitter after information was leaked to the New York Times. Rogers wrote, “Everyone needs to do their job and do in our normal professional and forthright manner. Our behavior will be driven by the standards of our profession and not the comments or views of others. No tit for tat pettiness from anyone at the NSA on this.”

FBI Morale Down for Some Reason

An FBI survey released in response to a FOIA lawsuit shows that morale at the bureau has dropped in the wake of James Comey’s ouster, “though satisfaction at the bureau remains high overall.” The FBI morale data had been released regularly since 2013 but was not published this year until researchers filed a FOIA suit. The question that resulted in the sharpest dive in the FBI Climate Survey is “I am inspired by the Director’s vision and leadership.” The data contradicts claims made by President Trump that he fired Comey because employees had lost faith in him (and previous data from FBI climate surveys showing Comey was widely respected at the bureau).

A History of US-Russian Negotiations

Our senior analyst and Russia expert, Svetlana Savranskaya, spoke with KPFA radio’s Letters and Politics about the history of US-Russian negotiations. Listen to the interview here.

Cyber Brief – Cyber Brief: GRU Cyber Operations

This week the Archive’s Cyber Brief is useful context for the indictment of 12 Russian intelligence officers for “engaging in cyber operations that involved the staged release of documents stolen through computer intrusions.” These cyber intrusions have come to be referred to as “Operation Grizzly Steppe.” This week’s brief explores the US Government’s public conceptualization of Russian cyber operations and highlights the two GRU units suspected of being directly involved: Unit 26165 (a/k/a Cozy Bear, APT29) and Unit 74455 (a/k/a Fancy Bear, Pawn Storm,  APT28).

#TBT Pick – Secret U.S. Overture to Iran in 1999 Broke Down Over Terrorism Allegations

This week’s #TBT pick is a 2010 posting highlighting declassified documents showing that a highly confidential US overture to Iran in summer 1999 foundered because the intelligence community and FBI believed members of Iran’s Revolutionary Guards had a role in the infamous Khobar Towers bombing of June 1996, and because US officials overestimated the Iranian president’s ability to manage the sensitive matter of US relations within Iran’s power structure. Get the whole story here.

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Kavanaugh Instrumental in Bad FOIA Ruling, Secrecy System Unsustainable, and Much More: FRINFORMSUM 7/12/2018

July 12, 2018

#TBT Pick – Kavanaugh Ruling Helped CIA Conceal Bay of Pigs History

This week’s #TBT pick is chosen with the recent nomination of Judge Brett Kavanaugh for Supreme Court Justice in mind. Kavanaugh authored the 2014 ruling in the National Security Archive’s prolonged FOIA lawsuit against the CIA that kept the agency’s 1984 Bay of Pigs Volume V history secret.  Kavanaugh, in a 2-1 ruling, agreed with the CIA and DOJ lawyers that the document was a “draft” and its release would “expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Archive Director Tom Blanton said at the time, “Presidents only get 12 years after they leave office to withhold their deliberations, and the Federal Reserve Board releases its verbatim transcripts after five years. But here the D.C. Circuit has given the CIA’s historical office immortality for its drafts, because, as the CIA argues, those drafts might ‘confuse the public.'”

Congress disagreed with the court’s overly-broad interpretation of the “deliberative process” privilege, and the FOIA was amended two years later to prevent agencies from hiding documents older than 25 years behind exemption five. Thanks to the change in the law, the Archive won the release of the volume in 2016.

Read more about the case here and read the volume here.

National Security Classification System Unsustainable

“We can and must reduce costs and increase efficiency by using digital technology to replace existing analog and paper-based operations. Our system keeps expanding, but remains hamstrung by old practices and outdated technology. We are at a crossroads.” This is according to the Information Security Oversight Office’s newly-released report to the president, highlighted by Steve Aftergood, which is a sobering assessment of the aging and unwieldy secrecy bureaucracy.

Key recommendations from the report include:

  • Using modern technology in security classification programs;
  • Implementing a budget line item that would require agencies to justify security classification expenditures; and
  • Adding a member of the public to the Interagency Security Classification Appeals Panel.

The National Geospatial Intelligence Agency wins special praise in the report for its best practice policy of requiring “written justifications for original classification decisions, along with a description of the damage that would result from unauthorized disclosure, and an unclassified paraphrase of the classified information.”

Also of note is the percentage of classification challenges presented by government employees that are upheld by the government – eight percent were upheld across the government. Aftergood notes, “Because the challenges are now mostly localized in just a few agencies, this practice has the potential to have far more impact in combating overclassification if it can be adopted and encouraged more widely across the executive branch.”

Jones’ Bill Would Circumvent FOIA to Declassify Civil Rights Cold Cases

Senator Doug Jones (D-Ala.) introduced a bill, the  Civil Rights Cold Case Records Collection Act of 2018, that would “create a panel to systematically review, declassify, and release government documents and information related to unsolved criminal civil rights cases from decades ago.” Jones argues that the bill would help shed light on important cases that agencies are too slow to release through FOIA; specifically, Jones says the legislation is needed because “the Freedom of Information Act (FOIA), as implemented, has prevented the timely and adequate disclosure of executive branch records, and congressional records are not subject to public disclosure under FOIA. In addition, some of these records, although almost 50 years old, remain classified unnecessarily or shielded from public view.”

In Brief – FOIAonline Takes a Turn for the Worse

The redesigned FOIAonline is … not good. The site has lost much of its functionality and is no longer mobile friendly. The Reporters Committee’s Adam Marshall has a good hot take here.

FOIA Plays Key Role In Pruitt Downfall – “The FOIAs have been 99.9 percent of it”

Environmental Protection Agency whistleblower Kevin Chmielewski was a key figure in the ouster of disgraced former agency head Scott Pruitt. Chmielewski, who was the EPA’s deputy chief of operations, leaked documents and provided fodder and guidance for FOIA requests, responses to which were critical in turning the tide against Pruitt.  “I’ve put the breadcrumbs where they had to go and pointed to the FOIAs — the FOIAs have been 99.9 percent of it,” Chmielewski said. “They’ve all come back, and in a lot of cases they were worse than I even knew about.” He called the FOIA releases the “silent hero” behind Pruitt stepping down.

Updates to the President’s Daily Brief Under Trump

Government Attic obtained records from the Office of the Director of National Intelligence under FOIA concerning new guidelines for the President’s Daily Brief for President Trump. One of the few unredacted portions of the records instructs the compilers to please limit the use of acronyms. It’s unclear if the president reads the briefs; the Washington Post reported in February of this year that the President has broken with the tradition of reading the highly sensitive document himself, and instead relies on oral briefings of the PDB.

Trump might actually not be the only president not to read the document. A 2016 Archive posting shows that President Richard Nixon may never have even read the President’s Daily Briefs, relying instead on cover memos written by national security adviser Henry Kissinger.

More on past presidents’ relationships with the document can be found on the National Security Archive’s website.

Cyber Brief: Transportation Security

This week the National Security Archive’s Cyber Vault brief focuses on the cyber threat to critical infrastructure (communication, transportation, energy, finance, and vital services), which receives a sizeable volume of attention from researchers and policy analysts. This week’s Cyber Brief collection of more than a dozen pertinent documents collectively examines transportation security in isolation beginning with President Clinton’s Executive Order 13010 and continuing through recent Federal reports on emerging challenges and technologies.

Presidential Control of Nuclear Weapons: The “Football”

Online blustering about nuclear “buttons” has brought new attention to the issue of presidential control over nuclear weapons, and to the special satchel or “Football” of emergency and nuclear planning information carried by White House military aides when the President is traveling. Declassified documents recently published by the National Security Archive describe the Eisenhower, Kennedy and Johnson arrangements for the “Football”; and the posting includes newly discovered White House photographs of six recent Presidents with military aides and Football nearby.

New Testimony Alleges that Former Colombian President’s Ranch Was Paramilitary Base

A ranch owned by former Colombian president Álvaro Uribe Vélez and other members of his family was the operational base of a deadly paramilitary group, according to the testimony of people who worked for the Uribe family in the 1990s. The new evidence, which was reviewed by the National Security Archive, is the subject of an investigation published this week in The New York Times featuring commentary from Michael Evans, director of the Archive’s Colombia documentation project.

Learn more about the declassified record on Uribe from our Colombia project.

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FBI Wants to Put FOIA Lawsuits on Ice until 2021: FRINFORMSUM 6/28/2018

June 28, 2018

FBI Tries to Put FOIA Lawsuits on Hold

The FBI recently told a government attorney that it is beginning to file “Open America” stays in “all FOIA lawsuits going” forward. This means, according to Jason Leopold, who brought attention to this alarming development, that “even if you sue the FBI, the bureau won’t process it until 2021.”

Courts can grant “Open America” stays when an agency demonstrates that “exceptional circumstances” exist and an agency can show that it “is deluged with a volume of requests for information vastly in excess of that anticipated by Congress [and] when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection.” Justice Department guidance importantly notes that, “The Electronic Freedom of Information Act Amendments of 1996 explicitly redefined the term ‘exceptional circumstances’ to exclude any ‘delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.'”

While the FBI argued the stays were necessary because of the bureau’s immense FOIA backlog, it’s not clear that the Open America stays would coincide with a concerted effort to clear the backlog.

Congress should use the FBI’s suspect position as an opportunity to investigate the extent to which the practice of staying FOIA lawsuits is employed at the Department of Justice and possibly other agencies, and what methods agencies are (or aren’t) taking to address their FOIA backlogs.

Financial Disclosure Form Reveals Potential Conflicts of Interest for new FTC Official

A FOIA request submitted by Public Citizen has won the release of Adam Smith’s financial disclosure form. Smith is the Federal Trade Commission’s new Bureau of Consumer Protection director, and the form raises serious questions about an array of perceived conflicts of interest. The form lists more than four dozen clients Smith worked with during his time at the corporate law firm Covington & Burling, among them were Uber, Equifax, and payday lender Scott Tucker, which was fined $1.3 billion by the FTC. Smith has also represented most of the nation’s large financial firms, including those fined for securities and consumer protection violations.

GAO Report: FOIA – Agencies Are Implementing Requirements but Additional Actions Are Needed

The Government Accountability Office has released a new report on FOIA implementation in response to a 2016 request from Congress to determine agencies’ compliance with the law. GAO selected the 18 agencies surveyed in the report based on size and other factors and assessed their performance against 6 metrics mandated by the FOIA. These metrics include online access to government information, including information about FOIA liaisons in agency communications with requesters, and training FOIA personnel. GAO recommends, in short, that agencies follow all of the FOIA’s requirements.

MuckRock’s Emma Best has a very good breakdown of the findings, as well as helpful commentary on how the official GAO findings square with requesters’ actual experiences, including:

  • The four agencies with the largest FOIA backlogs do not have plans to deal with them;
  • Agencies withheld information under the b(3) exemption by citing more than 230 statutes, but courts, as Ms. Best points out, have only upheld 75 of those statutes. The GAO report includes a chart citing which statutes have been upheld in court and which have not; and
  • The most commonly cited b(3) statute “related to withholding records pertaining to the issuance or refusal of visas to enter the United States. It was used by 4 agencies over 58,000 times.”

Focusing on the Intelligence Community’s FOIA Performance

A new report from OpenTheGovernment focuses on FOIA trends at the NSA, DIA, Army, Navy, CIA, and ODNI as compared to the rest of the federal government. OTG found that processing times for complex FOIA requests at these agencies are nearly three times longer than the government-wide average, and that the NSA and DIA’s processing times are worst of all at nearly 6 times the government-wide average.

Other key findings include:

  • The CIA rejects 4.35% of all FOIA requests – considerably more than other agencies – because of ongoing FOIA litigation;
  • FOIA litigation costs at CIA are more than at the NSA, DIA, Army, and Navy combined; and
  • The NSA and CIA fully denied about 40-percent of all FOIA requests on exemption grounds last year.

The OTG data begs a number of important questions, key among them being what is the rationale behind the CIA’s litigation-based denials, and what do the litigations costs reported in the agency’s annual FOIA reports actually cover?

New Digital National Security Archive Document Collection Highlights CIA Covert Operations from 1961-1974

Explore important historical events, like the epic Bay of Pigs disaster, through the lens of little-known or under-explored covert activities in the National Security Archive’s latest digital collection, CIA Covert Operations, Part III – From Kennedy to Nixon. This Digital National Security Archive (DNSA) collection, the most comprehensive of its kind, is the third of five installments concerning the bread and butter of U.S. intelligence operations – covert operations.

The new collection includes first-hand reporting on Che Guevara as he uttered his dying words in Bolivia, assassination attempts on Fidel Castro and Rafael Trujillo, dealings with secret agents and covert support for Kurdish rebels, and the CIA’s search for funds to bribe African dictator Jean-Bedel Bokassa of the Central African Republic.

Cyber Brief: Joint Publication 3-12

This week the Archive’s Cyber Vault highlights the updated Joint Chiefs of Staff Publication 3-12, first published on February 5, 2013. The following changes are prominent in the document:

  • Addition of USCYBERCOM as a combatant command and the creation of the cyber mission force.
  • Command and control for cyberspace operations are given deeper attention.
  • Information is reflected as a joint function.
  • Cyber operation planning is given deeper attention including intelligence and operational analysis support as well as targeting.

The Cyber Vault has a side-by-side view of both versions of the document to help readers compare versions and spot changes.

TBT Pick – U.S. Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick comes from our China Documentation Project and is a 2011 posting celebrating the publication of over 2,000 documents on the U.S. intelligence community’s efforts spying on China. The documents include a U.S. defense intelligence document from 2001 that details Chinese plans for developing radiofrequency weapons (although it stops short of speculating on their possible purpose).  Other records reflect on contemporary issues, like the risks of constructing nuclear power plants – like the Fukushima facility that exploded after the recent tsunami – at questionable sites in Japan.

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