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Weekend Read: Guatemalan Judge Orders New Trials Based on Death Squad Dossier, Obtained by NSArchive

May 20, 2022

By Claire Harvey 

Exactly 23 years ago on May 20, 1999, the National Security Archive published the “Diario Militar”, a detailed document also known as the “Death Squad Dossier” that was smuggled out of Guatemala. The unique document, whose release the Archive announced jointly with the Washington Office on Latin America, the American Association for the Advancement of Science, and Human Rights Watch,  describes atrocities committed by the Guatemalan military during an 18-month period of the country’s protracted civil war. Two decades later, the document is still making an impact – on May 6, 2022, Guatemalan judge Magistrate Miguel Angel Galvez, using documentation from the “Diario Militar”, ruled that nine former military and police officers will stand trial for civil crimes committed during the war

The individuals who will now stand trial are implicated for civil crimes by the positions they held between 1983-1986. Magistrate Galvez also ordered prosecutors to find the former head of military intelligence, Toribio Acevedo, who was subsequently arrested on May 10, 2022, at Panama City Airport. Since the May 6, 2022, ruling, AP reports that Magistrate Galvez has received multiple death threats. 

The historic act of transitional justice (which addresses massive human rights violations) builds on documentation from the “Diario Militar”, or Death Squad Dossier. The Dossier served as a ledger of sorts for Guatemalan military and intelligence units to record death squad operations between 1982 and 1985. The 54-page document was smuggled from Guatemalan army intelligence files and chronicles the kidnapping and disappearances during the height of the conflict, and includes photos of the victims and coded references to the executions of scores of Guatemalan citizens. The document offers a snapshot of how the Guatemalan military used assassination, torture, and abduction to terrorize the Guatelaman left throughout Guatemala’s civil war, which lasted from 1960 to 1996. By the time peace accords were signed in 1996, it is estimated that 160,000 people were killed and another 40,000 were “disappeared” by Guatemalan security forces. 

In the 23 years since the document was published, families of the disappeared have repeatedly called for investigations into the crimes outlined in the document and searches for their loved ones’ remains. Their efforts were aided when further documentation of the Guatemalan security forces crimes was discovered in 2005, when Guatemalan police, following complaints about improperly stored explosives in a long-neglected munitions depot in Guatemala City, found 75 million pages in file cabinets marked “disappearances” “assassinations” and “homicide”. The documents, long abandoned and in an advanced state of decay, are discussed in the Archive’s November 21, 2005, post, “The Guatemalan Police Archives.” 

The Dossier has helped bring justice and accountability multiple times over the years:

  • On April 25, 2012, the Archive’s Kate Doyle provided expert witness testimony before the Inter-American Court of Human Rights in the case of the Diario Militar; the testimony is published in the Archive’s  May 3, 2012, posting, “Update: The Guatemalan Death Squad Diary and the Right to Truth.” The court ultimately found the Guatemalan government responsible for the crimes outlined in the document and failure to investigate them. 

Follow upcoming Archive web postings for more details on the new trial. 

DNI Haines Reiterates that Overclassification is a National Security Threat During Senate Testimony, What NSArchive Would Have Asked Her, and Much More: FRINFORMSUM 5/12/2022

May 12, 2022
Sen. Warren addresses overclassification.

Director of National Intelligence Reiterates Overclassification a National Security Concern at Worldwide Threats Hearing 

The Director of National Intelligence, Avril Haines, and the Director of the Defense Intelligence Agency, Lieutenant General Scott Berrier, testified before the Senate Armed Service Committee this week. The hearing, which can be viewed here, featured a discussion about overclassification and pseudo-classification between Haines and Senator Elizabeth Warren. Senator Warren, whose line of questioning begins around the 1’23” mark of the video, expressed concern that the current classification system has “spiraled out of control”. Warren asked DNI Haines if she thought overclassification was a national security problem, to which Haines, who authored a letter to Senators Ron Wyden and Jerry Moran earlier this year on the dangers of overclassification, readily agreed. 

The most interesting moment came when Senator Warren cited the United States’ decision to declassify information to aid Ukraine in its war against the Russian invasion, noting that this was evidence of a “well-functioning declassification system” that has the power to do good. Warren asked if there could be lessons learned from this instance about how to expedite declassification of information that might technically meet the standards for declassification when there is a compelling reason to do so. Haines agreed, noting that in this instance it showed how declassification “can support foreign policy”, and that she would be happy to discuss the topic more in a closed session. The answer is good to have on the record, and a follow-up letter from Warren to Haines could include a clarifying question to that point, namely: Would Haines be willing to spearhead building a more formal structure inside the IC outlining where and when consideration should be given to declassifying information because of the potential public interest and value in its release?

Senator Warren also brought attention to the exorbitant costs of the classification system (18 billion $ in FY 2017, the most recent figure available) and the limited resources paid to declassification (102 million $ for that same time period). These figures are outdated because the Information Security Oversight Office’s most recent reports do not attempt to calculate the costs of the security classification system, likely because of the challenges ISOO faced  in collecting and analyzing agency statistical data in the years since. Put another way, we currently have no idea how much the national security classification system costs us. 

Other open questions for DNI Haines on overclassification and pseudo-classification from NSArchive include: 

1) Do you support the Public Interest Declassification Board’s 2015 recommendation to end “pass/fail” review for historical records?

2) Would you support a major declassification program for historical IC records? Something along the lines of the CIA’s CREST system which provided for systematic declassification and release of historical intelligence analysis, but also overhead reconnaissance products?

3) How is ODNI pursuing strategic technology to support automated classification and declassification?

4) Will the ODNI commit to following the PIDB’s 2020 recommendation to develop a plan to assist the Archivist of the United States in “modernizing the systems in use across agencies for the management of classified records, including electronic records”?

5) How could the ODNI further support the work of the National Declassification Center to ensure that historical IC records are released to the public?

6) Would you support the NDC making declassification decisions for historic records over 40-years-old?

7) What percentage of IC documents do you believe are overclassified?

8) How much does security classification cost the ODNI and the IC?

9) How many bytes of classified material does the ODNI assess exist across the IC?

10) Do you have data on how often the ODNI and other IC agencies issue Glomar responses?

11) If so, will the IC community commit to reporting on the number of Glomar denials issued each FY? If not, why not?

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The Next Archivist

The Biden administration’s nominee for the next Archivist of the United States will have a profound impact on the safe-keeping of our national history, the ability to hold government agencies and employees accountable, and the performance of the National Archives and Records Administration itself. There’s no indication yet who the administration may choose, but the National Security Archive was proud to co-author a letter to President Biden outlining the qualifications the next archivist must have. The letter, which was signed by 22 organizations and prominent voices in the archival and open government communities, was sent to the president on May 6, 2022. 

The National Security Archive outlined many of the letter’s concerns in our 2022 Audit of NARA’s budget, which can be read on our website. Our analysis underscored that NARA is stretched too thin in normal times, and its insufficient budget and statutory authority were no match for the Trump administration’s disdain for records management. 

Now is a critical time for the agency to course-correct.

The May 6 coalition letter underscores the urgency that the next Archivist support: public access to records through traditional archival research; the Freedom of Information Act (FOIA); declassification; and rigorous oversight of agencies records management processes and records retention schedules. 

President Biden has an opportunity to pick a successor who builds on previous AOTUS David Ferriero’s successes (outlined in a thank you letter to Ferriero that is available here), like NARA’s strong support of the Office of Government Information Services and maintaining a good relationship with the public to help improve NARA’s services. Above all, President Biden must also choose someone who will advocate for a budget that reflects the critical services NARA provides, and will take full advantage of all of the agency’s statutory authority. Without these qualities, NARA will continue to be underwater, and the public’s access to its records and a full accounting of its history will remain in serious doubt.

The Secret War for Germany: CIA’s Covert Role in Cold War Berlin Explored through Recently Declassified Documents 

The Central Intelligence Agency aggressively pursued clandestine efforts to undermine East German morale at the height of the Cold War, recently declassified CIA records confirm. Exploring one of the core chapters of post-war European history, the materials recently posted by the National Security Archive detail key facets of the intelligence agency’s still meagerly documented activities in East Germany.

Those activities included supporting and advising certain anti-communist activist groups, particularly in Berlin – a fact long denied in public – which were effective enough to prompt the Soviets to make them a subject of diplomacy with Washington, in addition to implementing their own propaganda and security measures.

This e-book consists of several documents culled from the recently published Digital National Security Archive collection CIA Covert Operations IV: The Eisenhower Years, 1953-1961 (ProQuest, 2021), available by subscription through many libraries. They provide a concise look into some of the intelligence agency’s previously classified ties to covert organizations in Cold War Germany. Read the whole story on our website. 

In Brief

Seven-Year FOIA Battle Ends with IRS Handing Over Records: The Institute for Justice recently won access to the IRS forfeiture database, the Asset Forfeiture Tracking and Retrieval System (AFTRAK). The IRS initially tried to charge $750,000 in FOIA fees to fulfill the request, which helped prompt IJ to file suit. Read the whole story on the Institute for Justice website.

NSArchive and CREW Ask DOJ to Investigate Trump’s Missing Call Logs, BuzzFeed News Dismantles Stellar Investigative Team, and More: FRINFORMSUM 4/28/2022

April 28, 2022

NSArchive and CREW Ask DOJ to Investigate Missing Trump Call Logs

The National Security Archive teamed up with the Citizens for Responsibility and Ethics in Washington (CREW) to ask the Justice Department to investigate President Trump’s missing seven and a half hour call logs from the January 6 insurrection. Our letter to the DOJ requests that it investigate whether “former President Donald Trump violated federal criminal law by destroying critical records from January 6, 2021 before leaving office.”

The Washington Post reported on March 29, 2022, that seven and a half hours of call logs were missing from the records turned over to the House select committee investigating the attack. The records were provided by the National Archives and Records Administration (NARA) after the Supreme Court rejected Trump’s request to block the handover. NARA provided the committee a total of 11 pages, consisting of five pages of the president’s official daily diary, and six pages of the White House switchboard call logs (titled “Presidential Call Logs”)  – with a glaring gap of calls placed or received between 11:17 a.m. to 6:54 p.m. The gap contradicts extensive reporting about calls placed during that period, including a known phone call between President Trump and Vice President Pence.

Trump denied using disposable, or burner phones, to make calls during that time, saying he had no idea what burner phones were. In an interesting aside worthy of further investigation, former national security adviser John Bolton said that he and Trump have spoken about how people have used burner phones to avoid having their calls scrutinized.”

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BuzzFeed News Dismantles Investigative Team, a Blow to Investigative Journalism and Stellar FOIA Reporting

Investigative reporter and FOIA legend Jason Leopold recently announced on Twitter that BuzzFeed News is dismantling its investigative team, of which Leopold is a part. The team has produced numerous high-profile and impactful investigations, largely through extensive public records requests. The following is a selection of stories that I have found particularly riveting:

Leopold has clarified on Twitter that this dismantling does not impact his interest in his ongoing FOIA requests, he is “still interested” in them being processed.

DoD Agrees to Give Stars and Stripes Reporter Docs, Maybe Just This Once

The Defense Department has reversed course and stated in a recent court filing that it would process 15 FOIA requests from a Stars and Stripes reporter. In January of this year Stars and Stripes reporter Chad Garland sued the Defense Department for its refusal to process his FOIA requests and subsequent appeals because he works for the military publication. (Stars and Stripes is administered under the Pentagon’s Defense Media Activity; it is editorially independent but receives a DoD subsidy to offset the costs of providing a paper to troops stationed overseas.) The Pentagon stated in a March 4, 2021, memo that “any representative of (Stars and Stripes) cannot use the FOIA to gain access to DoD information,” continuing that, “If you receive a request from a (Stars and Stripes) employee that does not demonstrate (the publication’s) approval, you should close it as ‘not a proper FOIA request.’” 

Kel McClanahan, executive director of the nonprofit law firm National Security Counselors, cautioned that the DoD’s latest move may not mean the DoD is changing its policy towards Stars and Stripes reporters. McClanahan noted that the timing suggested the move could be a result of a FOIA release to a lawyer who was not a party to Garland’s suit, but who had submitted an identical FOIA request.

New Book Alert – Republics of Myth: National Narratives and the US–Iran Conflict

As multilateral nuclear negotiations with Iran drag on, it is anyone’s guess whether they will succeed and if so whether they can survive the fierce domestic battles that are expected in the United States and the Islamic Republic.  Why is it that Washington and Tehran still seem unable to bridge the rift that has divided them for more than four decades?

A new volume out this month tackles this question from a novel perspective – arguing that along with the realities of conflicting interests and concrete grievances, a major contributing factor has been how each nation views itself and its adversary. Briefly put, the book suggests that this often-deadly confrontation derives from the very different national narratives that have shaped and continue to sway politics and policies in each country.

Written by Hussein Banai (Hamilton Lugar School, Indiana University), Malcolm Byrne (National Security Archive), and John Tirman (Center for International Studies, MIT), the new book, Republics of Myth: National Narratives and the US–Iran Conflict is being published by the Johns Hopkins University Press. 

Ayotzinapa Investigations Special Exhibit Page Launch

On the 26th of every month for the last seven and a half years, the parents of the missing 43 students from the Ayotzinapa Rural Teachers College in southwestern Mexico have traveled from their home states to Mexico City to demonstrate and demand information about the disappearance of their sons – victims of a notorious 2014 case of police-abetted kidnapping and high-level government cover-up.  The case has become emblematic of the violence produced from the U.S.-Mexican “war on drugs” and the crisis of forced disappearances and lack of official accountability in Mexico. 

To commemorate this month’s 26th, the National Security Archive launched its Ayotzinapa Investigations special exhibits page, which contains all related postings about the event (the most recent was published on April 1), links to the English and Spanish-language podcast series “After/Después de Ayotzinapa,” and related books, reports, projects, videos, and photographs.

Weekend Read: New Book Examines The Narratives and Myths Behind Decades-Long US and Iranian Enmity

April 22, 2022
tags: ,

By Claire Harvey

Nuclear negotiations between the United States, world partners, and Iran are stalled, and the question of how to bridge the gap between Washington and Tehran remains as important today as it was decades ago. A new book, “Republics of Myth: National Narratives and US-Iran Conflict” by Malcolm Byrne (National Security Archive), Hussein Banai (Hamilton Lugar School, Indiana University), and John Tirman (Center of International Studies, MIT), explores this question and the role that national narratives, alongside concrete grievances and opposing interests, have had in the complex US-Iran relationship. The Archive posted “Republics of Myth: National Narratives and the US- Iran Conflict” on April 14, 2022, to celebrate the new book. The posting features the book’s introduction and a selection of key declassified documents related to US and Iranian national perceptions. 

The April 14 posting introduces readers to the dominant narratives that Byrne, Banai, and Tirman identify across decades of Iranian and US relations and relevant archival documents. The posting includes the book’s full introduction, which sets up the often under-recognized personal component to bilateral diplomacy, and the remarkable challenge that “sharply different understandings of geostrategic reality” posed to negotiations leading up to the 2015 nuclear deal. These “different understandings of geostrategic reality”, the book argues, are partially informed and reinforced by each country’s deeply ingrained national narrative. The posting includes a selection of documents that illustrate the dominant narratives shaping American and Iranian relations, respectively. One such example is a declassified January 12, 1944, memorandum from President Franklin Roosevelt to Secretary of State Cordell Hull, wherein Roosevelt expresses excitement at employing an “unselfish American policy” to transform Iran, “definitely a very, very backward nation”; this is a rationale that Byrne recognizes as an important blueprint for US policy in developing countries following World War II. Another example is an April 1, 1979, address to the nation by Iranian Supreme Leader Ayatollah Ruhollah Khomeini, wherein Khomeini depicts Iranian history as the victim of foriegn interference and states that Iran is “neither East nor West ”. The posting also includes documents reflective of each country’s narrative leading up to President Trump’s withdrawal from the Joint Comprehensive Plan of Action (JCPOA) in 2018.

The book’s focus on Iranian and American narratives is a novel perspective on a historically complex relationship, distinct from traditional international relations theory. Malcolm Byrne, Deputy Director and Director of Research at the National Security Archive and co-author of the book alongside Banai and Tirman, stated: “This is not a book about international relations theory. It’s the result of our assessment of a lot of documentary and testimonial evidence that we’ve gathered over several years in an attempt to help explain how leaders of these two governments have not only persistently seen each other as adversaries but have been unable to get over that obstacle even when it’s blocked them from reaching agreements and outcomes each side wants.” Byrne continued that what the authors have focused on in this case “are the narratives both nations have developed about themselves over time – plus the narrative that has grown up around their bilateral relationship. Narratives (which we describe in the Introduction and Chapter 1) are separate from events, interests, and ideas – the concepts international relations theorists study – but they often act in tandem with those factors, as in the U.S.-Iran case, to help drive each government’s policy making toward the other.” The book’s examination of narratives gives a further depth of understanding to past and present US and Iranian enmity.

The book is the result of an ongoing multinational archival research project on the US-Iran relationship, including “critical oral history” conferences involving past policymakers and government experts from the US, Iran, and Europe, and individual expert interviews. Further material is available on the Archive US-Iran Project page, including postings on the 1979 Iran Hostage Crisis Recalled, Documenting Iran-U.S. Relations, 1978-2015, and a media library of videos from key interviews and historical moments. 

Interested readers can also explore archival documents through the subscription service Digital National Security Archive, which includes collections on U.S Policy toward Iran, From the Revolution to the Nuclear Accord, 1978-2015, Iran: The Making of U.S. Policy, 1977-1980, and The Iran-Contra Affair: The Making of a Scandal, 1983-1988.

Bipartisan Consensus at FOIA Hearing: DOJ Not Doing Enough on FOIA: FRINFORMSUM 3/31/2022

March 31, 2022

Senate Judiciary FOIA Hearing Highlights DOJ’s Poor Performance Encouraging FOIA Compliance

Senator Patrick Leahy presides over the FOIA hearing

Longtime FOIA champion Senator Patrick Leahy presided over his last Freedom of Information Act (FOIA) hearing this week, and he made it count. The Senate Judiciary Committee’s first FOIA hearing since 2018, The Freedom of Information Act: Improving Transparency and the American Public’s Right to Know for the 21st Century, pulled no punches. Republican and Democratic senators alike appeared skeptical of the Department of Justice representative’s explanations for lackluster government-wide FOIA performance. They repeatedly pressed Bobby Talebian, the DOJ’s Office of Information Policy director, on what specific steps the DOJ was taking to improve FOIA, but Talebian provided few concrete explanations, instead preferring to stick with OIP’s perennial stance of rose-colored-glasses obfuscation.  

The main issues discussed include:

  • Senator Leahy expressed concern over Attorney General Merrick Garland’s recent FOIA memo, which was vague and somewhat noncommittal, and pressed Talebian on 1) what specific steps the DOJ would take to track agency’s progress complying with the law, and 2) what DOJ would do with agencies that flout FOIA. Talebian offered no concrete answers, only reiterating that agencies “aren’t necessarily delinquent” in following the law, including the most recent 2016 amendments, a claim that is patently absurd. This leaves the impression that the DOJ will continue, among other things, representing agencies in court, even when they are clearly acting in bad faith. Senator Leahy appeared unimpressed, noting that he wanted candor from the witnesses. 
  • Senator Chuck Grassley pointedly asked Talebian why it took Attorney General Merrick Garland over a year to issue a memorandum on FOIA, noting that it gave the impression that the Biden administration was not prioritizing transparency. He also stated that federal agencies seem inclined “to disclose as little as possible.” Talebian could not answer directly, stating instead that his office continued to work with agencies to improve their FOIA performance, while offering no specifics on how beyond providing additional training and guidance. 
  • Senator Grassley also asked Talebian about the status of the Obama-era “release to one, release to all” policy; Talebian emphasized that while there was a pilot-program studying the policy, that proactive disclosure is key. However proactive disclosure is more than that, it is the law, and a quick look at many agency FOIA websites shows that it is not being followed.
  • Senator Dick Durbin asked Talebian what accounted for the increase in FOIA litigation. Talebian responded that it was in large part the result of FOIA requests for records that are of high public interest. The key here is that agency records that are likely to be subject to multiple FOIA requests and that are identified as being of likely public interest are among the categories of records required to be published proactively – without requiring requesters to file a request in the first place, much less file a lawsuit. Talebian’s answer only underscores the extent to which agencies are not currently following the law as written, and how poor a job OIP is doing “encouraging” them to follow it. 
  • Senator Durbin also directly addressed the exponential growth in electronic records and asked Talebian if the federal government was seriously considering using artificial intelligence to make searching and processing more manageable. Talebian said, “Certainly, we’re definitely looking at advanced technology, including artificial intelligence to help us with the search and maybe even the processing of records.”
  • Senator Dianne Feinstein was similarly direct, telling Talebian that OIP’s efforts “have not done it”.  She also said, “My conclusion from this is: there is a big problem.”
  • Senator Sheldon Whitehouse had a terrific line of questioning, noting that OIP’s stance on congressional access to records under FOIA impacted its ability to conduct oversight. Senator Whitehouse was particularly frustrated about access to a DOJ Office of Legal Counsel opinion under FOIA; the OLC memo in question (more on OLC memos in general in the next section) concerns the Justice Department’s rationale why sitting presidents cannot be criminally prosecuted. Talebian, after repeated questions, acknowledged that his office was involved in the decision to appeal the U.S. District Court ruling that the OLC memo be released, but refused to provide further information.
  • Senator Jon Ossoff followed this line of questioning, repeatedly asking if the DOJ was considering updating its 1984 interpretation of congressional access under the FOIA. Talebian said he would circle back and provide an answer to the committee at a later date. Senator Ossoff also said that the difference between what the law requires and how agencies are performing is “massive”.

Talebian repeated many of OIP’s worn-out talking points throughout the hearing, and at times seemed to imply that requesters are more responsible for growing backlogs and long wait-times than FOIA offices, noting the growing number of requests being filed are ones that agencies deem complex. This argument is wrong for two major reasons: an agency’s inability (whether by intent or design) to follow the law by searching for and processing FOIA requests is not the requester’s burden; and there is no concrete standard by which agencies categorize requests as simple or complex. One agency, the Defense Intelligence Agency, labels 98% percent of its requests as complex. This cannot be accurate, and more likely reflects that the DIA has placed these requests in the complex queue to justify long processing times. In short, an agency’s determination of a request as complex should be taken with a grain of salt. 

Talebian also cited progress towards the National FOIA Portal, which was mandated by the 2016 FOIA amendments to allow the public to file a request to any agency from a single website, as a success. This is a spurious claim; the portal for many years has functioned as a glorified FOIA directory, referring requesters back to individual agency FOIA websites. Even now, many agencies – particularly those with classified systems like the CIA, FBI, and others – do not participate in the portal, and there is no indication that they will anytime soon.

Watch the entire hearing, and read the witness testimony, here.

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Sen. Duckworth Introduces OLC Transparency Bill

Senator Tammy Duckworth recently introduced a bill that would make all Office of Legal Counsel opinions public (with exceptions for classified material), and put an end to secret law. The Demanding Oversight and Justification Over Legal Conclusions Transparency Act (DOJ OLC Transparency Act) is an important milestone for transparency advocates, as OLC opinions have typically been hidden under FOIA on the basis that they are “deliberative” and “pre-decisional” (the claim that OLC opinions could be withheld as pre-decisional is itself perplexing;  OLC memos cannot simultaneously constitute working law whose decisions are binding while being protected as being pre-decisional). Neither Congress nor the public knows how many OLC opinions are currently in effect, much less the conclusions they reach. 

Demand Progress Legal Director Ginger Quintero-McCall hailed the bill’s introduction, stating, “The Office of Legal Counsel has shaped lasting U.S. policy under a dangerous shroud of secrecy that has shielded legal opinions that are controversial, even dubious or shoddy, from both congressional oversight and legal interpretation. Had this bill been law in 2002, it’s highly unlikely the U.S. would have engaged in human rights abuses at Abu Ghraib, as the legal justification provided by the OLC’s so-called ‘Torture Memos’ would not have withstood public scrutiny.” 

Demand Progress spearheaded a sign-on letter endorsing the legislation, which the National Security Archive was proud to sign.

Ellen Knight back at NSC 

Ellen Knight, the former National Security Council classification specialist who was pushed out of the NSC during the controversial prepublication review of John Bolton’s book, The Room Where it Happened, has been re-hired by the Biden administration as the NSC’s senior director for records access management.

The National Security Archive’s posting, The Bolton Book Saga: Anatomy of a White House Cover-Up, details how Knight confronted White House lawyers when they tried to block publication of the former National Security Adviser’s book. Knight, according to a revealing September 2020 court filing, suggested they were only intervening because the most powerful man in the world said that it needed to happen.” The court document asserts that in response, “several [attorneys] registered their agreement with that diagnosis of the situation.” Read the filing and our analysis here.

Colonel Odom’s “Chilling” Four A.M. Phone Call

At four in the morning on 3 October 1979, Colonel William Odom, military assistant to national security adviser Zbigniew Brzezinski, received a phone call from the Pentagon’s National Military Command Center informing him that an Air Force missile warning system had detected a submarine-launched ballistic missile (SLBM) launch off the coast of Oregon. It turned out to be a false alarm, but Odom told Brzezinski the experience was “chilling” and made him “wonder how to use the remaining four or five minutes” before the missile struck and set off a cataclysm.

The National Security Archive recently posted a number of records related to Odom’s early morning episode, complementing a previous publication on the most prominent false warnings from 1979 and 1980 that raised serious questions about the inadvertent triggering of nuclear war. The publication further adds to the history with previously unpublished records on incidents from the same time period, which were sparked by reports that over a thousand missiles were en route to U.S. territory. Read the rest at the National Security Archive.

In Brief:

New Spanish-Language Version of the Podcast “After Ayotzinapa”: Adonde Media presents “Después de Ayotzinapa”, its third original podcast, in co-production with Reveal News from the Center for Investigative Reporting and the National Security Archive. This investigation reveals new angles on the forced disappearance of 43 students in the state of Guerrero, Mexico, on the night of September 26 and the early morning of September 27, 2014. In six episodes presented by the journalist Olivia Zerón Tena, listeners will hear first-person testimonies about the attack and everything that happened after. Episodes are released every Tuesday and Thursday, with the final episode premiering on Thursday, April 7. Watch the trailer on Adonde’s “Después de Ayotzinapa” page.

RCFP Reviews Judge Ketanji Brown Jackson’s FOIA Record: Reporters Committee published an interesting survey of Judge Jackson’s dozens of FOIA-related opinions while serving on the district court (from 2013 – 2021). The entire survey is worth reading, but the main takeaway from RCFP is “Judge Jackson’s FOIA rulings demonstrate a deference to agency exemption claims, especially in the national security context, but a willingness to deny an agency summary judgment where government officials failed to provide sufficient evidence to keep records hidden from the public. Her record also reveals a willingness to rule in favor of record requesters on non-exemption issues pertaining to the sufficiency of an agency’s search for records and record fee disputes.”

Bill Clinton and the Budapest Memorandum: A recent opinion piece in the Wall Street Journal by George Bogden, a fellow at the Smith Richardson Foundation and at the German Marshall Fund of the U.S., draws on declassified documents – including those published by the National Security Archive – to re-examine the 1994 Budapest Memorandum. The memo led to, among other things, Ukraine’s disarmament. The article, “How Bill Clinton Sealed Ukraine’s Fate,” can be read here

EPA Sunsetting its Web Archive: The Environmental Protection Agency (EPA) is sunsetting its archive that contains “old news releases, policy changes, regulatory actions, and more,” on the grounds that it is no longer cost-effective and was never intended to be permanent. The Verge’s Justine Calma reports, “The archive is the only comprehensive way that public information about agency policies, like fact sheets breaking down the impact of environmental legislation, and actions, like how the agency implements those laws, have been preserved…It also shows how the agency’s understanding of an issue, like climate change, has evolved. And when the Trump administration deleted information about climate change on the EPA’s website, much of it could still be found on the archive.” The EPA says it will move much of the older content to its new website on a case-by-case basis.

Weekend Read: Sunshine Week Hearing Focuses on Rise of Digital Records, Disappearing Messages, and How to Fix the Presidential Records Act

March 18, 2022

By Claire Harvey 

The U.S. National Archives and Records Administration (NARA) faces existential challenges to preserve electronic records critical to our nation’s history, according to the March 15, 2022, hearing before the Senate Committee on Homeland Security and Governmental Affairs, Correcting the Public Record: Reforming Federal and Presidential Records Management. Expert testimony focused on how new technology has exponentially increased the number of federal records and hampered NARA’s ability to conduct oversight of agency record-keeping. The hearing also focused on the challenge of disappearing messaging applications that delete records before they can be preserved, and the need to reform the Presidential Records Act to ensure the protection of White House records. The Committee hearing took place during Sunshine Week, the annual celebration of open government.

Here are some big takeaways from the hearing:

Jason Baron, a Professor at the University of Maryland and an expert on agency record management practices, highlighted the challenges and concerns posed by NARA’s announcement that it will no longer accept paper records after 2022. He states that NARA’s announcement means that in the coming decades the agency must “preserve and provide access to literally billions of Executive branch records in electronic or digital format.” NARA’s announcement, particularly the part which states that agencies may dispose of the original source records, where appropriate, continues to pose serious concerns for historians, including:

  • How much oversight will NARA have of the digitization process to ensure it is carried out properly and will include all relevant metadata?
    • NARA’s oversight of agency compliance with previous rules regarding email preservation raises concerns that NARA’s approach in this instance will be relatively hands-off, and that spot checks for individual agency compliance will be few and far between. It also raises the possibility that some agencies will choose the quickest and cheapest digitization process over long-term archival requirements.
  • What happens to physical records after they have been digitized? Will agencies have free reign to dispose of them?
  • Will there be backups of digitized files if they become corrupted?

Ensuring that this change is carried out effectively will be challenging for the agency, which has not had a budget increase that reflects the agency’s outsized responsibilities in decades, according to this year’s annual Sunshine Week audit by the Archive, U.S. National Archives’ (NARA) Budget: The 30-Year Flatline

Baron also testified about the concerning rise of disappearing messaging apps used by both federal agencies and White House officials. Efforts to preserve these messages are  ineffective largely because they rely on individuals to self-enforce, and any disciplinary action as a result of neglect has yet to happen, according to Baron’s testimony. 

Read Baron’s full testimony here

Anne Weismann, Outside Counsel for Citizens for Responsibility and Ethics in Washington (CREW), emphasized the need for additional enforcement mechanisms to be added to the Presidential Records Act (PRA). In response to a question from Chairman Gary C. Peters (D- MI) on what was the most important challenge to the PRA, Weismann responded that it was “a lack of effective and robust enforcement schemes” that would allow both the Archivist and Congress to ensure the White House was following recordkeeping law. Ways the National Security Archive has identified to strengthen the PRA include:

  • Directing the Archivist of the United States to monitor, review and report on the Executive Office of the President’s (EOP) compliance with PRA; 
  • Requiring the Archivist of the United States to sign off on White House record keeping guidelines and practices; and
  • Requiring the White House Office of Administration to monitor and report on EOP compliance with PRA.

Read Weismann’s full testimony here

Jonathan Turley, Professor of Public Interest Law at The George Washington University Law School, testified that government use of instant messaging apps only underscores the risks of not adding an enforcement mechanism to the Presidential Records Act. Mr. Turley noted that the PRA was first enacted when records were nearly entirely in paper. Despite the Presidential and Federal Records Act Amendments of 2014, new technology and instant messaging such as WhatsApp “allows for easy evasion of both the PRA and FRA.” And while Congress did pass the Electronic Message Preservation Act in 2021, Turley argued that it is too vague in scope and mandate.

A prime example of this loophole are Jared Kushner’s WhatsApp messages with Saudi Prince Mohammed bin Salman. The White House argued that a screenshot of the records would suffice, but a National Security Archive lawsuit argued that this fails to capture important metadata required by the law (read more on lawsuit in the February 11, 2021, posting, Lawsuit Saves Trump White House Records).

Read Turley’s full testimony here

Weekend Read: Critical Resources on Russia’s War in Ukraine: Documents on NATO Expansion, Putin’s Rise to Power, and Russian Cyber Tactics

March 4, 2022
 Photo: Kyiv, 1990. The ‘human chain’ from Lyiv to Kyiv demonstrated unity in the path towards Ukrainian independence. Estimates from the Soviet Union suggest 300,000 participants, while unofficial estimates place the figure anywhere between 1 to 5 million. Source: Radio Svoboda/Valery Solovyov. 

By Claire Harvey

On February 24, 2022, Russian forces began a full-scale invasion of Ukraine following months of troop build-up along the border and failed negotiations between the two countries, as well as between Russia and Western governments. Here is a collection of essential National Security Archive materials to help contextualize the current conflict. Selections include relevant Archive postings and projects on Russia and Eastern Europe, the historic trilateral diplomacy to denuclearize Ukraine in the 1990s, documents on Vladimir Putin’s succession of Boris Yeltsin, a case study on Russian cyber tactics during the 2008 Russo-Georgian war, and much more.

Essential Reading:

  • Amidst the backdrop of Russian troops invading Ukraine this week, the Russian Supreme Court turned down the appeal by the legendary human rights group Memorial Society against the December 2021 “liquidation” orders to shut down the organization. As recently as today, Friday, March 4, 2022, Reuters reports Russian authorities searching the group’s Moscow office. The Archive’s March 3, 2022, posting, The “Liquidation” of Memorial, includes documents and photographs from the long-standing partnership between the Archive and Memorial, including reports describing the Russian war in Chechnya in terms directly parallel to what the world is seeing in Ukraine today: indiscriminate targeting of civilians, ill-informed and badly supplied Russian conscript soldiers, and a Russian leadership more like a “mafia organization” than a government. On March 4, 2022, the Archive published In Memoriam: Col Gen. (ret.) Evegny Maslin 1937-2022, remembering Evgeny Maslin, a hero and leader of the nuclear non-proliferation that took place in Ukraine and Kazakhstan after the dissolution of the Soviet Union in 1991. 
  • The Nunn-Lugar Project is a documentation and oral history project on the unprecedented “proliferation in reverse” that took place in former Soviet republics in the 1990s. The Archive’s December 5, 2019, posting, Nuclear Weapons and Ukraine, details how trilateral diplomacy between Russia, Ukraine, and the United States led to the removal of the third largest nuclear force from Ukraine in the 1990s and harken back to a time of extraordinarily productive, if short-lived, trilateral cooperation between Moscow, Kyiv, and Washington. 
  • There’s a roiling debate in academia and policy circles over whether the West promised Moscow it would not invite former Soviet republics or Warsaw Pact allies to join NATO.  The story is complicated, but by far the best place to start is by exploring the declassified record, which the National Security Archive has been a leader in uncovering, both in the United States and Russia. Archive document compilations on the subject include the December 12, 2017, briefing book NATO Expansion: What Gorbachev Heard, the March 16, 2018, collection NATO Expansion: What Yeltsin Heard, and the November 24, 2021, posting NATO Expansion: The Budapest Blow Up 1994.
  • Political turmoil in the former Warsaw Pact states and local resentment – including from within Ukraine – toward Soviet domination created flashpoints during the Cold War and were an object of intense U.S. interest. To read about the Eisenhower administration’s policy of “keeping the pot boiling” in Eastern Europe without having it “boil over” into possible nuclear conflict during the 1956 Hungarian revolution, see the Archive’s May 10, 2017, posting Hungary 1956: Reviving the Debate over U.S. (In)action During the Revolution.  

For more Archive documents on the cold war, visit the Russia Programs and Openness in Russia and Eastern Europe projects.

Documents on Putin’s Rise to Power 

The documents described below should be of special interest to those wanting to better understand Putin’s succession of Yeltsin. 

  • The Archive’s November 2, 2020, posting Putin, Clinton, and Presidential Transitions provides granular insight into Putin’s rise to power from an obscure prime minister to Yeltsin’s successor in 2000. The documents show that Clinton’s initial insistence on the importance of elections in conversations with his Russian counterpart leading up to the 2000 election gradually subsided as Yeltsin’s unconventional maneuvers became clear. Yeltsin fired four prime ministers, in what he himself described as “prime ministerial poker,” prior to Putin serving as prime minister from 1999 to 2000. Yeltsin’s unexpected resignation on New Years’ Eve 1999, following the Russian apartment buildings bombings and the beginning of the Second Chechen War, catapulted Putin into the position of acting president. 
  • In a December 31, 1999, telecon, Yeltsin tells Clinton, “now I’ve given him [Putin] three months, three months according to the constitution, to work as [acting] president, and people will get used to him for these three months. I am sure that he will be elected….”  Remarkable telcons and memcons like this may not exist for more recent conversations between Russian and American heads of state. President Trump reportedly did not allow the creation of memcons for at least five of his conversations with Putin between 2017 and 2020.
  • For more on the role of the Second Chechen War and Putin’s rise to power, see recent reporting from This American Life, February 25, 2022, “The Other Mr. President”

Documents on NATO and Russia in Cyberspace   

The role of cybersecurity in international conflict is a developing story that is still in its early stages. Given previous Russian hacking of Ukraine’s networks and other experiences, most observers expected cyber attacks to feature early and often in Moscow’s playbook, but that has apparently not been the case, at least as far as we know.  Experts are still confident this will change as the war goes on.  The National Security Archive’s Cyber Vault has gathered and posted a range of useful background materials describing Russia and Ukraine’s capabilities and methods.  Here are some examples.

  • Read about NATO cyber defense capabilities in December 6, 2021, posting “Baltic Ghost: Supporting NATO is Cyberspace. Documents detail the evolution of NATO cyber exercises to deter Russia, the incorporation of the energy sector into cyber defense exercises following Russian cyber-attacks on Ukraine’s power grid in 2015 and 2016, and the July 8, 2016, NATO Cyber Defense Pledge
  • The unclassified June 1, 2016, U.S. Army War College, Strategic Cyberspace Operations Guide, from the source Public Intelligence and published in the National Security Archive Cyber Vault Library, features a case study of Russian cyber operations against Georgia in 2008 (page 65). 
  • The case study found that cyberspace attacks against Georgia began several weeks before active warfare commenced on August 8, 2008, the Russian government used non-state cyberspace militias to cover for government operations, and cyberspace operations included targeting civilian infrastructure to create panic. The study found that Russian-backed hackers targeted the Georgian military and government but refrained from attacking “Georgia’s most important asset, the Baku-Ceyhan oil pipeline and associated infrastructure. By holding this target in reserve, the Russians gave Georgian policymakers an incentive to quickly end the war.” 
  • The monograph states that leading up to the Russo-Georgian war, the Georgian president’s website was subjected to a distributed denial-of-service (DDoS) attack. On August 8, 2008, a coordinated attack was carried out on Georgian government websites. As noted in the 2016 case study, the coordination was precedent setting for synchronizing cyber attacks with major combat operations. 

For further reading, see Cyber Brief: European Cybersecurity and Russia.

President Trump Likely Violated Laws Protecting Government Property When He Destroyed, Removed Records – FRINFORMSUM 2/10/2022

February 10, 2022

 “Shall forfeit his office and be disqualified from holding any office under the United States”

The National Security Archive and Citizens for Responsibility and Ethics in Washington (CREW) have formally requested that the Justice Department and FBI investigate former President Donald Trump’s mutilation and destruction of presidential records as possible violations of federal criminal law. We argue that Trump’s widely reported tearing up, disposal, and removal of highest-level documentation not only flouted his obligations under the law, but have deprived the public of its rightful ownership of those materials under the Presidential Records Act (PRA) and undermined congressional efforts to hold his administration accountable for events such as the January 6 insurrection.

A conviction in such a case would set a powerful precedent for accountability in preserving the historical record – something the PRA has failed to do – and could have important additional consequences, for example preventing the former president from ever holding public office again.

Former President Trump’s destruction and removal of records may violate 18 U.S.C. § 1361, which makes it a crime to willfully injure or commit any depredation against United States property in excess of $1,000. Another statute, 18 U.S.C. § 2071, which makes it a crime to willfully destroy or mutilate federal records, arguably goes further. The statute states, “Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.” (emphasis added)

The request, which can be read here, comes on the heels of  the February 7, 2022, Washington Post report that NARA officials had retrieved 15 boxes worth of presidential records from Mar-a-Lago – some of which NARA believes may contain classified information. These are records that should have been transferred to the Archivist of the United States (AOTUS) well over a year ago. The egregious violation prompted NARA to ask the DOJ to investigate.

The Mar-a-Lago discovery is by no means the first time Trump flouted the records law. The numerous offenses committed by the former president *that we know of* include:

As the Washington Post’s Editorial Board succinctly puts it, “Mr. Trump broke the law.” What remains to be seen is what the Justice Department will do about it.

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Intelligence Panel of Experts Releases Report on Havana Syndrome 

An expert panel convened by the intelligence community last spring to study the origins of the Havana Syndrome – the term for a spate of mysterious symptoms suffered by American diplomatic and intelligence officials overseas, including debilitating dizziness, headaches, tinnitus, and documented brain injuries – has released its findings. The panel found “that a pulsed energy device is the most probable cause of the most perplexing cases.” The report comes on the heels of the CIA’s controversial interim assessment, which found that there is no evidence of a foreign power “mounting a global attack aimed at U.S. personnel who have reported painful and sometimes debilitating physical symptoms.”

FOIA Release Sheds Grim Light on Kabul Evacuation

The Washington Post used the FOIA to win the release of an Army investigative report that “details the life-or-death decisions made daily by U.S. soldiers and Marines sent to secure Hamid Karzai International Airport as thousands converged on the airfield in a frantic bid to escape.” The 2,000-page report was launched in response to an August 26, 2021, suicide bombing outside the airport during the evacuation that killed nearly 200 people. The report contains “previously unreported disclosures about the violence American personnel experienced, including one exchange of gunfire that left two Taliban fighters dead after they allegedly menaced a group of U.S. Marines and Afghan civilians.” The disclosures include comments made by Rear Adm. Peter Vasely, the operation’s senior commander, that, “The U.S. military mission to evacuate American citizens and foreign allies from Afghanistan was hampered by continuous appeals for help from an array of advocates including White House officials, members of Congress, veterans of the war, media outlets and even the Vatican”.  

Cuba Embargoed: US Trade Sanctions Turn Sixy

Archive Analyst Peter Kornbluh’s latest posting commemorating the 60th anniversary of President John F. Kennedy’s executive order imposing “an embargo on all trade with Cuba” contains a collection of previously  declassified documents that record the origins, rationales, and early evolution of punitive economic sanctions against Cuba in the aftermath of the Castro-led revolution. The documents show that the initial concept of U.S. economic pressure was to create “hardship” and “disenchantment” among the Cuban populace and to deny “money and supplies to Cuba, to decrease monetary and real wages, [and] to bring about hunger, desperation, and the overthrow of [the] government.” However, a CIA case study of the embargo, written twenty years after its imposition, concluded that the sanctions “have not met any of their objectives.”

The selected declassified records chart the secret deliberations of both President Dwight D. Eisenhower, who cut sugar imports from Cuba and restricted U.S. exports, and President Kennedy, who imposed a full trade embargo against the island nation on February 3, 1962. Read the rest here.

In Brief

  • A lawsuit filed February 2, 2022, alleges that the D.C. Metropolitan Police Department flagged – and stonewalled – FOIA requests from journalists and activists; it specifically alleges  “that then-D.C. Police Chief Peter Newsham instructed the department’s FOIA compliance officers to inform him of all incoming requests, and to flag any requests that could embarrass Newsham or the department.” Visit the Washington Post for more.
  • A remarkable December 18, 2020, memo obtained by the Washington Post proposed that President Trump should “invoke the extraordinary powers of the National Security Agency and Defense Department to sift through raw electronic communications in an attempt to show that foreign powers had intervened in the 2020 election to help Joe Biden win.” The origin of the memo “remains murky”.

Weekend Read: Archive Interview With Expert Whose Findings Disputed Mexican Government’s “Historical Truth” in Ayotzinapa Case

February 4, 2022
Credit: Illustration by Dante Aguilera

The final episode of “After Ayotzinapa”, a collaboration between the National Security Archive and Reveal News from the Center for Investigative Reporting, aired Saturday, January 29, 2022. The series is the outcome of a three year investigation by National Security Archive senior analyst Kate Doyle and Reveal News senior reporter Anayansi Diaz-Cortes into the 2014 mass disappearance of 43 students from the Ayotzinapa Rural Teachers College in Mexico. The final episode, Chapter 3: All Souls, follows the reopened investigation under the new special prosecutor, Omar Gómez Trejo. In the previous episode, Chapter 2: The Cover Up, released on January 22, 2022, Doyle and Diaz-Cortes focus on the botched initial investigation into, and the government’s obstruction of, the Ayotzinapa case, and speak to the fire expert José Torero Cullen, whose findings proved the government’s official line was impossible. The Archive published the full interview José Torero Cullen on January 28, 2022.

Doyle and Diaz-Cortes interviewed José Torero Cullen, the head of the Department of Civil, Environmental and Geomatic Engineering at University College London, prior to the release of Episode 2. The interview focused on his experience working with the Interdisciplinary Group of Independent Experts (GIEI, an acronym from its initials in Spanish) on the case of the 43 disappeared students. During the initial investigation into the disappearance, the Mexican government stated the students were burned in a trash dump, a statement they called the “historical truth”. At the GIEI’s request, José flew to Mexico in July 2015 from where he was then teaching, at the University of Queensland in Brisbane, Australia. 

José’s core finding – that a fire of the magnitude proposed by the government investigation could not have happened – ignited a scandal in the Mexican media, and proved the government’s “historical truth” impossible. News organizations questioned his brief visit to the dump itself, and tried to discredit his conclusions without examining the analysis that led to them. In addition to sharing how he came to his conclusions, Cullen also shares with Doyle and Diaz-Cortes his commitment to the truth, saying: “…my job was purely to reveal what was the scientific basis behind a proper interpretation of what had happened in that dump. And if the conclusion had been that a fire of that nature could have happened in that place and it could have incinerated the people, that’s exactly what I would have said. But the conclusion said completely the opposite.” Read the interview in full here

All three episodes of “After Ayotzinapa” are available below to listen or read a transcript, and are also available on your podcast app of choice: 

Chapter 1: The Missing 43 

Chapter 2: The Cover Up

Chapter 3: All Souls

Growing FOIA Backlogs Should Prompt More Automatic Declassification, Proactive Disclosure; DNI Haines Says Too Much Classified Info Hurts National Security; Obama Presidential Records Now Subject to FOIA, and Much More in this Week’s Super-Sized FRINFORMSUM 1/27/2022

January 27, 2022

FOIA Backlogs Doubled in Ten Years

The main finding of the Government Accountability Office (GAO)’s new FOIA report is that FOIA backlogs have nearly doubled in the last ten years; the report found “FOIA request backlogs increased by 18 percent (from 120,436 to 141,762) from fiscal year 2019 to fiscal year 2020. Backlogged requests have been trending generally upwards since fiscal year 2016 … From fiscal year 2012 to fiscal year 2020, backlogs increased by a total of 97 percent.” 

FOIA backlogs have long been a perennial issue; President Obama tasked agencies in 2009 to reduce their FOIA backlogs by 10 percent a year, but by 2017 the Department of Health and Human Services was the only agency to have reached that goal. Government-wide, the problem is only getting worse. COVID-related delays exacerbated pre-existing problems and added new ones; including for the FBI FOIA office, whose classified FOIA system left it unprepared to adjust to the demands of telework. 

The increasing backlog of FOIA requests should make it clear to agencies and Congressional overseers alike that the only way forward is making automatic declassification and proactive disclosure robust, systematic features of each and every FOIA shop.  

The report also found that the number of FOIA requests received government-wide dropped by eight percent in fiscal year 2020 from fiscal year 2019. GAO also touts what may seem like a success – that “Agencies government-wide took less time on average to process simple and expedited requests, while taking more time to process complex requests from fiscal years 2019 to 2020.” What is not mentioned in the report is that the difference between simple and complex requests can be arbitrary; one agency – the Defense Intelligence Agency – claims that only two percent of its FOIA requests are simple. Focusing on requests that agencies self-define as simple paints a distorted picture of overall FOIA processing.

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DNI Haines Says Too Much Classified Information Hurts National Security

Director of National Intelligence Avril Haines says, “The U.S. intelligence community’s approach to classifying vast amounts of information is so flawed that it harms national security and diminishes public trust in government.” The acknowledgement that overclassification undermines national security, which the National Security Archive has been arguing for decades, was made in a letter Haines sent to Sens. Ron Wyden (D., Ore.) and Jerry Moran (R., Kan.) earlier this month. The letter was in response to an October 2021 request for information from Wyden and Moran, who are pushing to overhaul the declassification system, which they assess costs the public $18.5 billion a year. Haines explicitly states, “It is my view that deficiencies in the current classification system undermine our national security, as well as critical democratic objectives, by impeding our ability to share information in a timely manner.”

Stars and Stripes Reporter Sues DOD Over its Refusal to Accept FOIA Requests From Military Paper

Stars and Stripes reporter Chad Garland is suing the Defense Department for its refusal to process his FOIA requests and subsequent appeals because he works for the military publication. (Stars and Stripes is administered under the Pentagon’s Defense Media Activity; it is editorially independent but receives a DoD subsidy to offset the costs of providing a paper to troops stationed overseas.) The Pentagon stated in a March 4, 2021, memo that “any representative of (Stars and Stripes) cannot use the FOIA to gain access to DoD information,” continuing that, “If you receive a request from a (Stars and Stripes) employee that does not demonstrate (the publication’s) approval, you should close it as ‘not a proper FOIA request.’” The Pentagon’s stance on Stars and Stripes reporters is startling, considering that the Department accepts FOIA requests from reporters from papers from around the world, as well as from foreign governments.

Garland’s suit argues that the Pentagon does not have the right to restrict a private citizens’ ability to file a FOIA, and cites the 11th Circuit decision in Sikes v. Navy that ruled, “the Supreme Court has made clear that ‘the identity of the requesting party has no bearing on the merits of his or her FOIA request.’” National Security Counselors’ Kel McClanahan told Stars and Stripes’ Alison Bath that, “If the policy prevails, it could have a chilling effect on transparency, allowing the Pentagon or other agencies to restrict federal employees from using FOIA in a variety of cases, such as those involving whistleblowers.” 

Obama Presidential Records Now Subject to FOIA

President Barack Obama’s records became subject to the FOIA on January 20, 2022, five years after President Obama left office, in accordance with the Presidential Records Act. The requested records will be released through both the New Obama Library website and the NARA catalog, but there will be no research library on site at the Obama library. This has prompted concerns that presidential scholarship may suffer, and begs questions about what this model could mean for future presidents unconcerned with preserving “nonpartisan public history,” according to the New York Times. (It is worth noting that the current presidential library system is not anywhere near perfect; current wait times for presidential records are well over a decade in the National Security Archive’s experience.)

For more information on how to request President Obama’s records, use this Fact Sheet

Lawmakers Skeptical of CIA’s Havana Syndrome Report

The CIA’s interim Havana Syndrome report found that there is no evidence of a foreign power “mounting a global attack aimed at U.S. personnel who have reported painful and sometimes debilitating physical symptoms.” Reports of US intelligence, diplomatic, and military personnel stationed overseas suffering from a spate of mysterious symptoms – including debilitating dizziness, headaches, tinnitus, and documented brain injuries – began in Cuba in 2016, earning the nickname Havana Syndrome, and cases now tally more than 1,000  worldwide. Some speculated that a foreign power was using an unknown, sophisticated microwave weapon in the global attack – a premise the report rejects, although it does not rule out that a foreign actor may be responsible for a small number of unsolved cases.

The report, and the absence of a clear diagnosis for the syndrome, may make it more difficult to implement the Havana Act, which was signed into law by President Biden in October 2021 and gives the government “six months to establish a framework for making payments to individuals who have suffered from related health incidents.”

Politico reports that both Republican and Democratic lawmakers are criticizing the findings, questioning “the interim assessment’s timing and inconclusive nature, along with the fact that the report was not coordinated with other intelligence agencies ahead of its release.” Sen. Mark Warner (D-VA), chair of the Senate Intelligence Committee, also questioned why the agency released its report a week and a half before the intelligence community’s expert panel on Havana Syndrome is expected to complete its own investigation.

For more information on the Havana Syndrome, read Peter Kornbluh’s 2021 posting, CDC Report on the ‘Havana Syndrome’: Medical Mystery Remains Unresolved.

U.S. Ambassadors to Russia Interviewed

The National Security Archive recently updated our publication of interview transcripts from eight former U.S. ambassadors to Russia, providing essential historical context to debates over U.S.-Russian relations, with three additional interviews with the deans of American diplomacy with Moscow – Jack Matlock, Thomas Pickering, and James Collins.

The interviews are courtesy of the Middlebury Institute for International Studies at Monterey, where the Graduate Initiative in Russian Studies, under the direction of Professor Anna Vassilieva, has organized the entire Ambassadorial series of interviews and is publishing the material in videos, podcasts, and transcripts.

The three new interviews cover the 1990s in Russia and the rise of Vladimir Putin through the expert eyes of Jack Matlock, ambassador from 1987 to 1991, Thomas Pickering, ambassador from 1993 to 1996, and James Collins, ambassador from 1997 to 2001.  The interviews were conducted in 2021 by the Middlebury Institute’s expert Dr. Hannah Notte, based in Vienna.

National Security and Climate Change: Behind the U.S. Pursuit of Military Exemptions to the Kyoto Protocol

Pentagon demands for military exemptions during the 1997 Kyoto climate negotiations posed a substantial challenge for the Clinton administration both internally and with American allies, according to a collection of declassified internal papers posted last week by the National Security Archive. These documents have particular relevance as the Biden administration advances its climate change policy and the Pentagon commits to climate adaptation measures.

The records, which can be read here, primarily focus on the perspectives of U.S. negotiators and officials, but also include the views of members of Congress and others who were critical of the Kyoto Protocol because they wanted even larger carve-outs for military operations.

In Brief

  • The National Security Archive and Reveal News from the Center for Investigative Reporting released the second installment of the new podcast “After Ayotzinapa” this Saturday, January 22, 2022. The ongoing three-part series is the result of a three year investigation by National Security Archive senior analyst Kate Doyle and Reveal News senior reporter Anayansi Diaz-Cortes into the September 26, 2014, disappearance of 43 students of the Ayotzinapa Rural Teachers’ College. Learn more about the massacre, and where to listen to the podcast, here. 
  • A reverse FOIA lawsuit in Washington State is being brought by six Seattle Police Officers against reporters covering their presence at the January 6 Stop the Steal rally in Washington DC. Reporter Sam Sueoka details the case, which argues that the PRA request for their names violates the police officers’ right to protest, here; a hearing is currently scheduled for this Friday, January 28. For more information on, and examples of, reverse FOIA lawsuits, visit FOIA Wiki.
  • The Washington Post revealed in December 2021 that Maryland governor Larry Hogan uses the disappearing messaging app Wickr; Hogan argues the use of the app isn’t in violation of the state’s open records law because the messages sent through them are not subject to the state’s FOI law. The Reporters Committee for the Freedom of the Press dismantles Hogan’s erroneous claim here. 
  • The Chief FOIA Officers Council will hold a virtual meeting with the public on requesters’ experience with FOIA on Wednesday, February 2 at 2 PM EST . RSVP by the end of January here.