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Are 98% of Federal Agencies Actually on Track to Manage Electronic Records by 2019 Deadline? FRINFORMSUM 9/20/2018

September 20, 2018

NARA Report Says 98% of Agencies are on Track to Manage Digital Records by 2019 Deadline. Really?

The National Archives and Records Administration’s Federal Agency Records Management 2017 Annual Report touts an eyebrow-raising statistic: “Ninety-eight percent of agencies show confidence in meeting the OMB/NARA Managing Government Records Directive (M-12-18) target to manage all permanent electronic records in electronic format by December 31, 2019, and say these records are already created and maintained electronically.” This statistic – generated from analyzing agencies’ self-assessments of their own progress – should be taken with a grain of salt. A true test of how well agencies are prepared to manage their electronic records is how they respond to FOIA requests for such records – and so far, the rubber is nowhere near meeting the road.

The National Security Archive’s 2018 FOIA Audit contradicts these agency self-assessments. Our analysis found that two out of five federal agencies claimed that they were either unable or not required to respond to a targeted Freedom of Information Act (FOIA) request for agency emails. Many more lost the requests. The responses show that – well over a year after agencies were required to manage email electronically – FOIA requesters are often not seeing the benefit of any improved electronic records management. From the National Security Archive’s vantage point, it would be better if NARA actively oversaw this electronic records management process, as opposed to taking agency self-assessments at their word.

The NARA report’s analysis of results from the self-assessments does contain some interesting information, including:

  • To the question “When was your agency’s directive(s) last reviewed and/or revised to ensure it includes all new records management policy issuances and guidance?” Seventeen agencies admitted it’s been since at least 2012, making it hard to see how 98% of agencies have incorporated electronic management guidance directives issued afterwards.
  • Fifteen agencies said there were no internal records management trainings.
  • Thirty-one agencies claimed they had not identified the vital records of all their program and administrative areas.
  • Thirty-three agencies said staff responsible for FOIA can never search for records without contacting others.
  • Twenty agencies don’t track when their permanent records are due to be transferred to NARA.
  • Ten agencies admitted that they do not comply with the requirements under Executive Orders 13526 and 13556 for managing classified and controlled unclassified information in systems that contain electronic records.
  • Seventy-eight agencies do not have approved records schedules covering electronic messages including text messages, chat/instant messages, voice messages, and messages created in social media tools or applications that meet the definition of a Federal record.
  • Twenty-one agencies said they did not have the ability to search across all systems to find electronic records needed for agency business, including FOIA, and
  • Nearly three years after the Hillary Clinton private email controversy, 24 agencies still do not have “documented and approved policies that address the use of personal email accounts, whether or not allowed, that state that all emails created and received by such accounts must be… forwarded to an official electronic messaging account of the officer or employee no later than 20 days after the original creation or transmission of the record.”

DOJ Didn’t Want to Step Into Census Fight on the Heels of the “The Whole Comey Matter”

An unredacted September 8, 2017 email released as part of an ongoing lawsuit confirms that the Justice Department did not initially want to add a controversial citizenship question to the 2020 census. The email, written by the Commerce Department’s Earl Comstock, notes that “Justice staff did not want to raise the question given the difficulties Justice was encountering in the press at the time (the whole Comey matter).” Comstock also directed staff to determine if Commerce could add the citizenship question to the census on its own.

This July the Commerce Department released redacted versions of the September 8 email, among others, in court filings that that show 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.

Trump Orders DOJ to Declassify Info on Investigation into Russian Election Interference – But Unredacted Reports Unlikely

President Trump gave the DOJ the highly controversial order to declassify information related to the investigation into Russian interference in the 2016 election with the purported belief this will clear a cloud that has hung over his administration since Inauguration. The statement specified that the DOJ was to “immediately declassify portions of the secret court order to monitor former campaign adviser Carter Page, along with all interviews conducted as officials applied for that authority,” as well as to release unredacted text messages of certain FBI officials.

Many of the documents at issue are the subjects of current FOIA litigation, including cases brought by USA Today’s Brad Heath and his attorney, Mark Zaid, and investigative reporter Jason Leopold. The government, as a matter of routine, redacts too much information on baseless national security grounds, and some of these documents should have been released already under the FOIA, but the political nature of the order is unsettling to many.

Politicization concerns aside, it’s not likely that Trump will be able to get the records released fully redacted. As Zaid tells the Washington Post, “In our FOIA cases, the Department of Justice — Trump’s DOJ — has ardently argued that disclosure would harm existing investigations and damage national security.” Records concerning an ongoing investigation, particularly those being withheld to protect sources and methods, are among the most highly guarded in the government and are incredibly unlikely to be released.

Trump, as evidenced by the JFK Assassination Review Board records release, has also proven unable to corral a bureaucracy of securocrats or rein in DOJ lawyers who can stymie the declassification of records that are of incredibly high public interest, and whose release is backed both by the president and congressional mandate. As the National Security Archive sees regularly, all it takes is one reviewer at one agency to say a document must be keep secret, and it will stay secret despite the sometimes-overwhelming merits of declassification.

It should also be noted that the president’s order was issued in a press release, not a formal directive, raising questions about agencies’ ability to pushback against release.

FISA Court Makes it Easier to Target Journalists

The Freedom of the Press Foundation, together with the Knight First Amendment Institute, has won documents over the course of an ongoing FOIA lawsuit that shows “the Justice Department’s rules for targeting journalists with secret FISA court orders.” The FISA court rules are less stringent than those for obtaining subpoenas, warrants, and court orders against journalists and raise several key questions, including how many times these orders have been issued, and “If these rules can now be released to the public, why are the FBI’s very similar rules for targeting journalists with due process-free National Security Letters still considered classified? And is the Justice Department targeting journalists with NSLs and FISA court orders to get around the stricter ‘media guidelines’?”

Judge: DOJ Can’t Hide Communications with White House Counsel Under FOIA Exemption 5

A Cause of Action Institute FOIA lawsuit has won an important holding from U.S. District Court Judge James Boasberg that shoots down the DOJ’s attempt to misuse a FOIA exemption designed to protect attorney/client privilege and deliberative process. In a suit seeking DOJ communications with the White House Counsel’s office concerning the implementation of a controversial House Committee on Financial Services directive (that instructed 12 agencies to treat communications with the committee as “congressional records” not subject to FOIA), “Judge Boasberg vigorously rejected DOJ’s attempt to withhold records.” Boasberg, who reviewed the documents in camera and there determined many of the DOJ’s arguments did not hold water, berates the DOJ for redacting a White House email as follows:

“Nowhere does the White House directly ask for legal advice in the email, nor is there any other statement that can even be fairly construed as a solicitation for legal counsel. Rather, the body of the email begins with the acronym ‘FYI,’…”

Cause of Action has a thorough rundown here.

Secretary Chao’s Government Flights Cost Nearly $100K

Transportation Secretary Elaine Chao’s government flights cost – between January and August of 2017 – $94,000. Politico reports that during this time Chao flew on private Federal Aviation Administration flights rather than commercial ones, and stopped the habit once Health and Human Services Secretary Tom Price faced intense scrutiny for his travel expenses. Politico’s reporting is based on records recently released by the FAA as part of a FOIA lawsuit, and are significant insights into Chao’s travel because “the secretary does not release any public schedule of her official business.”

The Cyber Glossary

The National Security Archive’s Cyber Vault just launched the Cyber Glossary – a new resource for the cybersecurity community, journalists, students, and the general public.

The cybersecurity field features a profusion of issues and concepts that complicates the work of advanced practitioners and discourages those without technical training. The Cyber Vault has collected and organized hundreds of terms from a variety of government sources in one place to facilitate the public’s navigation of the terrain. Each entry is identified with a source – often more than one.

The Cyber Glossary will have regular updates from agencies such as DHS, DOD, and the NSA. We look forward to your feedback and further suggestions.

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Trump Tweets on Investigation Don’t Undercut Glomar, Senate Democrats to file FOIA Suit for Kavanaugh Docs, and More: FRNFORMSUM 9/13/2018

September 13, 2018

DC Circuit: Trump Tweets on Investigation Don’t Undercut Glomar

The District Court for the DC Circuit is upholding the DOJ’s Glomar response – in which an agency claims it can neither confirm nor deny the existence of records – to FOIA requests seeking information about a DOJ investigation into President Trump. The plaintiffs – the James Madison Project and Politico’s Josh Gerstein – argued that the DOJ should not invoke a Glomar response after Trump issued Tweets that appear to confirm he is a target of an FBI investigation. The court, however, claims Trump’s tweets lack enough specificity to undercut the Glomar.

Senate Democrats to file FOIA Suit for Kavanaugh Documents

Senate Democrats filed FOIA requests with the National Archives and Department of Justice for records on Supreme Court nominee Brett Kavanaugh, including the years he spent as lawyer and staff secretary to President George W. Bush – and have yet to receive a response. Sen. Richard Blumenthal (D-Conn.) said they would be filing suit later this week to try and secure the documents’ release. Democrats argue the documents are of high public interest, and that “the time period is crucial for understanding Kavanaugh’s thinking on controversial issues including torture and surveillance.”

DHS Transferred FEMA Funds to ICE Detention Centers

A recently-released budget document shows the Federal Emergency Management Agency was nearly $10 million poorer by the start of this year’s hurricane season because the Department of Homeland Security transferred the money out of the disaster relief agency’s operations and supports budget and “into accounts at ICE to pay for detention and removal operations.” FEMA is refuting specific claims that the funds came from accounts dedicated specifically to disaster relief. The budget document was released by Sen. Jeff Merkley (D-Ore.) as Hurricane Florence barrels towards the Eastern seaboard and as President Trump defends his agency’s handling of last year’s hurricane season. FEMA was criticized for its response to last year’s storm season, particularly its response to the devastation in Puerto Rico; “New data shows that nearly 3,000 people died as a result of the hurricane and many people continue to live without power on the island. An after-action report by FEMA released in July shows that they agency vastly underestimated how much food and fresh water it would need, and how hard it would be to get additional supplies to the island.”

First Meeting of the 2018-2019 FOIA Federal Advisory Committee

The FOIA Advisory Committee met for the first time for its 2018-2019 session. During the meeting the new panel identified the topics its three subcommittees will focus on – Records Management, Vision and Time/Volume. The next meeting will be held on November 29.

FOI Sheds Light on Bizarre Ethics Breach at Colorado State

Public records requests to Colorado State University and its police department have helped unveil the strange story of former CSU chemistry professor Brian McNaughton. The story, recently published in the Chronicle of Higher Education, shows McNaughton as an associate professor obsessed with securing a raise, more money for his lab, and tenure – to the extent that he forged an offer letter from the University of Minnesota, which included a promise of a $1.5 million grant to support his research, to prod CSU to cede to his demands. The ruse worked; McNaughton got a $16,000 raise and additional upgrades for his lab.

But things began falling apart when his wife, Stacy, left him. Shortly thereafter, an anonymous letter arrived at the CSU provost office with allegations of McNaughton’s falsehoods. CSU – a public university funded by taxpayers – reached an agreement with McNaughton that would allow him to leave quietly to a position in Delaware. Soon a private investigator, frustrated with the university’s response, began digging, filing FOI requests, and seemingly launching a targeted social media campaign against McNaughton. McNaughton was ultimately charged by Larimer County prosecutors with “attempting to influence a public servant, a felony punishable by up to six years in prison” – a charge he pleaded down to 100 hours community service.

TBT Pick – Declassified Documents on the September 11, 1973 Military Coup in Chile

This week’s #TBT pick is chosen with the 45th anniversary of the military coup led by Chilean General Augusto Pinochet in mind. The posting is a 1998 selection of declassified documents analyzed by the Archive’s Chile Documentation Project director, Peter Kornbluh, and sheds light on the violent overthrow of the Allende government and its aftermath. The documents featured in the posting include:

  • Cables written by U.S. Ambassador Edward Korry after Allende’s election, detailing conversations with President Eduardo Frei on how to block the president-elect from being inaugurated. The cables contain detailed descriptions and opinions on the various political forces in Chile, including the Chilean military, the Christian Democrat Party, and the U.S. business community.
  • CIA memoranda and reports on “Project FUBELT”–the codename for covert operations to promote a military coup and undermine Allende’s government. The documents, including minutes of meetings between Henry Kissinger and CIA officials, CIA cables to its Santiago station, and summaries of covert action in 1970, provide a clear paper trail to the decisions and operations against Allende’s government.
  • National Security Council strategy papers which record efforts to “destabilize” Chile economically, and isolate Allende’s government diplomatically, between 1970 and 1973.

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Guatemalan President Shuts Down UN-Backed Anti-Corruption Probe, Taliban Confirm Haqqani Death, and More: FRINFORMSUM 9/6/2018

September 6, 2018

Guatemalan President Shuts Down UN-Backed Anti-Corruption Probe

Guatemalan president Jimmy Morales recently announced he will not renew the mandate of the UN-backed anti-corruption probe, the International Commission Against Impunity in Guatemala. The Commission (commonly referred to by its Spanish acronym CICIG) has already racked up over 300 convictions, two former presidents are in jail as a result, and Morales and his National Convergence Front are under investigation by the Attorney General’s Office as a result of CICIG’s work. Morales is currently shielded by presidential immunity, but “following a petition by the Attorney General’s Office, a commission is currently working to determine whether or not there is enough evidence to remove the president’s immunity.”

The National Security Archive’s Kate Doyle spoke with NPR about what this means for justice and judicial reform in Guatemala, arguing “President Morales’ decision to cancel the mandate of CICIG and essentially order its investigations to come to a grinding halt is a terrible blow to the progress that Guatemala has made in justice.”

Visit the Archive’s Guatemala documentation page for more information.

Jalaluddin Haqqani

Taliban Confirm Death of Jalaluddin Haqqani – 4 Years After Death Suspected

The Taliban have announced the death of Haqqani Network patriarch Jalaluddin Haqqani. The news confirms Afghan officials’ assertions that Haqqani has been dead for “at least four years – an assertion confirmed by one aide to Mr. Haqqani in 2015.” There is speculation that the announcement was intended to coincide with the arrival of Secretary of State Mike Pompeo and other American military officials in Pakistan to discuss an end to the war in Afghanistan.

The Haqqani Network traditionally acted as a somewhat autonomous affiliate of the Taliban rather than a subsidiary– a separation evidenced in part by the fact that the State Department declared the Haqqani Network a Foreign Terrorist Organization but not the Taliban. Recently, however, the separation appears to have disappeared, and Jalaluddin’s son Sirajuddin is both the Haqqani Network leader as well as the deputy emir of the Taliban.

More on the history of the Haqqani network, informed by FOIA releases to the National Security Archive, can be found here and here.

FOIAonline Glitch Publishes Dozens of Social Security Numbers

FOIAonline made public dozens of social security numbers and other personally identifiable information during a July software update that transitioned the portal from its 2.0 version to the 3.0. The information was removed a month later after a reader tipped off CNN, prompting the news agency to notify the government about the inappropriate postings.

FOIAonline, maintained by the Environmental Protection Agency, is the FOIA portal used by over a dozen agencies and components, including the National Archives and Records Administration and the Department of Justice’s Office on Information Policy. While the EPA fixed the glitch, it remains up to individual agencies to properly input information into the system, and there is no disclaimer for those who use the FOIA portal to keep sensitive information out of their FOIA requests.

Interior Dept. Photographer Crops Inauguration Photo at President Trump’s Request 

A FOIA release from the Office of the Inspector General at the Interior Department shows that a departmental employee “edited official pictures of Donald Trump’s inauguration to make the crowd appear bigger following a personal intervention from the president.” The Guardian reports, “The records detail a scramble within the National Park Service (NPS) on 21 January 2017 after an early-morning phone call between Trump and the acting NPS director, Michael Reynolds. They also state that Sean Spicer, then White House press secretary, called NPS officials repeatedly that day in pursuit of the more flattering photographs.”

The recently released records were not included in the report on the inauguration photo kerfuffle that the Interior Department’s IG released last year.

TBT Pick – “Jalaluddin Haqqani’s Emergence As a Key Taliban Commander”

This week’s #TBT pick is chosen with the Taliban’s recent admission of Jalaluddin Haqqani’s death in mind. It is an unclassified January 7, 1997 State Department cable – released in response to a National Security Archive FOIA request and analyzed by Archivist Barbara Elias – on the elder Haqqani’s rise in the Taliban. The cable reports him to be “more liberal” in his opinions on social policy, such as women’s rights, than other Taliban officials. But he did not seem to have the political clout to influence social policy. Haqqani nevertheless remained respected as a competent and influential officer in Taliban military affairs. His ties to “various radical Arab groups,” concern the Department of State, as one source reports that “in exchange for weapons and money… [he is] offering shelter for various Arabs in areas of Paktia province.”

Elias is quick to point out that, between 1986 and 1994, Haqqani was a “unilateral” CIA asset. Steve Coll’s The Bin Ladens: An Arabian Family in the American Century, notes during that time “he received tens of thousands of dollars in cash directly from CIA officers working undercover in Pakistan, without any mediation by Pakistani intelligence, which normally handled and relayed the great majority of CIA funds to the Afghans.” Haqqani’s relationship with the US deteriorated in the late-1990s after the US bombed an HQN-linked training camp in retaliation for al-Qaida attacks on the US embassies in Kenya and Tanzania. Coll notes Haqqani’s relationship with bin Laden deepened after the US bombings, and he “helped and protected Osama [bin Laden] and the Arab volunteers as they built their nascent militia. (Osama later referred to Haqqani as a “hero mujahid sheikh”…)… Osama would have had no reason to know about Haqqani’s opportunistic work with the CIA, but he and his Arab volunteers benefited from it.”

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Could NARA Have Prevented the Release of Abigail Spanberger’s Security Clearance Application? FRINFORMSUM 8/30/2018

August 30, 2018

Former CIA officer and Democratic candidate Abigail Spanberger speaks to supporters at a rally in Richmond, Virginia. Steve Helber/AP

NARA Could Have Troubleshot the USPS’ Release of Abigail Spanberger’s Security Clearance Application by Processing the FOIA Request Itself

The confusion is only growing surrounding the Post Office’s unprecedented release of Abigail Spanberger’s entire federal security clearance application in response to a FOIA request from a Republican research group. Spanberger, a former CIA officer and Post Office employee and current Democratic candidate for Virginia’s 7th Congressional District, accused the conservative research group – America Rising – of improperly obtaining the form, which is one of the most closely guarded documents in the federal government. America Rising maintains, however, that the form was released in response to a properly submitted FOIA request to the National Archives’ National Personnel Records Center, which then forwarded the file to the Post Office’s human resources division for direct response to the FOIA requester.

Part of the confusion stems from the cover letter the Post Office released along with the form, which makes no mention of the FOIA request. The letter is signed by Pamela Gabriel, and some have speculated that Gabriel thought she was releasing the file to Spanberger herself, although the letter is addressed to “To Whom it May Concern” at America Rising Corporation.

One possible explanation is that the original NARA referral is the source of the confusion about who requested the document and whether the Post Office thought it was responding to a FOIA request or not. If NARA had had the authority and initiative to properly process the initial FOIA request itself, instead of outsourcing the request and increasing the likelihood of bureaucratic miscommunication –not to mention delay– this bizarre breach of personal privacy and security protocol would not have happened.

Remembering Matthew Aid

Matthew Aid, a prolific intelligence historian and transparency advocate who wrote “the untold history” of the National Security Agency, among other notable works, recently died at 60 in his Washington, D.C. home. Aid made headlines in 2006 by uncovering the secret reclassification program at the National Archives as well as the suppression of a critical internal history of the Gulf of Tonkin intercepts. In addition to the NSA, he studied the development of procedures, rules, limitations, and legal justifications for wiretapping and communication intercepts. Aid also maintained an incredibly useful website cataloging the most important intelligence and national security news – its archive is here.

The CIA’s Secret FOIA Office Email is: cia_foia@ucia.gov

The CIA’s FOIA office has had an email address since 2016, but does not alert requesters to its existence and maintains that it is only used “to communicate with the public and should not to be used to submit FOIA requests.” Instead, the agency makes requesters either fax FOIA requests to a solitary fax machine that, in my experience, is often out of paper, submit them via snail mail, or via a user-unfriendly portal. It should go without saying that it is absurd that in 2018 any agency – but especially one so high-tech that it once tried to turn a cat into a mobile spy device – continues to make requesters jump through antiquated hoops to submit requests.

The email address is: cia_foia@ucia.gov.

Email addresses are not the CIA FOIA shop’s only problem. A recent MuckRock article by Emma Best highlights the poor quality of declassification decisions made by the office, as epitomized by the nonsensical declassification journey of the agency’s long-term plan report from 1980. The document was processed for release on five separate occasions between 2002 and 2009. Best notes:

“The first copy was declassified and released with a handful of redactions in January 2002, but by April 2003 the Agency had decided that half the document was not only still classified but exempt from declassification, citing 25X1 – sources and methods

By July 2005, the Agency had reversed its decision, and released another copy of the document with similar redactions to what it imposed in 2002. A virtually identical copy of the report on the Agency’s long-term planning was released in September 2006. By April 2009, the Agency had done a complete reversal and decided that that entire document needed to be redacted, with the partial exception of the cover page.”

FOIA Release Sheds Light on Student Loan Default Rates

A recent New York Times opinion piece on the burgeoning national student loan crisis uses Department of Education data released through FOIA to argue “that the federal government overlooks early warning signs by focusing solely on default rates over the first three years of repayment.” Author Ben Miller states that while Congress requires the Education Department to monitor student loan default rates for just three years, the data shows student default rates continuing to climb after the end of the initial tracking period – to over 16% default rates across all borrowers.

The data also shows that nearly a quarter of all borrowers, while not in default, remained severely delinquent in their loan repayments for the first five years of repayment. The law requires colleges participating in the federal student loan programs to keep their share of borrowers at a default rate below 30 percent for three consecutive years. This, Miller argues, encourages colleges to aggressively endorse “repayment options known as deferments or forbearances that allow borrowers to stop their payments without going into delinquency or defaulting.” This practice keeps the schools in good Congressional graces and recipients of federal student loan money, but overlooks serious problems with the federal student loan programs and its burden on student borrowers.

A History of US Presidents’ Relationships with Soviet Leaders

The University of Texas’ National Security Review has published the first in a series of essays on past U.S. presidents and their engagements with Soviet and Russian leaders. The series was prompted by the interest in President Trump’s meeting with Vladimir Putin, and the first installment examines the relationship between President Clinton and Boris Yeltsin.

TBT Pick – Matthew Aid’s The Secret Sentry

This week’s #TBT pick is chosen with Matthew Aid’s legacy in mind. This week’s #TBT pick is a 2009 posting highlighting dozens of the declassified documents Aid obtained for his seminal book on the National Security Agency, The Secret Sentry. Among other things, the book used declassified documents to show that the U.S. invasion of Iraq in 2003 was far from the first time when U.S. government officials, including senior military commanders and the White House, “cherry picked” intelligence information to fit preconceived notions or policies and ignored intelligence which ran contrary to their expectations. The documents also confirm that prior to the launch of the first spy satellites into orbit by the National Reconnaissance Office (NRO) in the early 1960s, the Signals Intelligence (SIGINT) collected by the NSA and its predecessor organizations was virtually the only viable means of gathering intelligence information about what was going on inside the Soviet Union, China, North Korea, North Vietnam, and other communist nations.  Yet, for the most part, the NSA and its foreign partners could collect only bits and pieces of huge numbers of low-level, uncoded, plaintext messages.

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State’s Historical Advisory Committee Report Slams DOD’s FRUS Performance and More: FRINFORMSUM 8/16/2018

August 16, 2018

“But the Department of Defense…has performed more negligently—and violated the statute more egregiously.”

State’s Historical Advisory Committee Report Slams DOD’s FRUS Performance

The State Department’s Historical Advisory Committee (HAC) takes the Defense Department’s Office of Prepublication and Security Review (DOPSR) to task for its “unconscionably tardy and inattentive” attitude towards its obligation to declassify select documents for the Foreign Relations of the United States series. In its annual report HAC notes that the Defense Department “completed only one out of eleven volumes submitted for review throughout the entire year.” It also criticizes the CIA, which “performed below the expectations produced over the several preceding years.”

The FRUS series is statutorily obligated to publish a “thorough, accurate, and reliable” record of US foreign policy “no later than 30 years after the events that they document.” Steve Aftergood notes that, “To a large extent, FRUS is dependent on — and also helps to motivate — declassification of national security and foreign policy records. Such declassification in turn depends on the cooperation of other agencies who are called upon to review selected documents.”

The report also sheds light on problems faced by the State Department’s History Office (HO), “The unexpected and unprecedented decision of the State Department’s leadership in December to reject HO’s request to renew three HAC members unsettled both the committee and the office.”

Gina Haspel CIA Torture Cables Declassified: Archive Wins FOIA Lawsuit for Thailand Black Site Reports

Declassified CIA cables won by the Archive in a FOIA lawsuit show that current CIA director Gina Haspel described graphic acts of deliberate physical torture, including the waterboarding of a suspected Al-Qa’ida terrorist under her supervision, when she was chief of base at a CIA black site in Thailand in 2002. The Haspel cables detail conditions the public has only seen in the infamous Abu Ghraib photographs from Iraq of detainees hooded and shackled, forced nudity, wall slamming, and box confinement, as well as “enhanced techniques” never photographed such as the simulated drowning of suspects on the waterboard. “Release of Gina Haspel’s torture cables shows the power of the Freedom of Information Act to bring accountability even to the highest levels of the CIA,” said Archive director Tom Blanton, who first identified the Haspel cables from a footnote (336 on p. 67) in the Senate Intelligence Committee torture report declassified in 2014.

Conviction in Murder of Jaime Garzon

Jose Miguel Narvaez, the former deputy head of Colombia’s intelligence agency, has been convicted for the 1999 murder of popular comedian and political satirist Jamie Garzon. A 2011 Archive posting on the murder published declassified State Department cables supporting longstanding allegations that Colombian military officials ordered the killing. Written just days after the murder, the cable from the U.S. Embassy in Colombia says that Garzón “had been killed by paramilitaries in league with ‘loose cannon’ active or retired members of the security forces.”

NSA on FOIA: It’s a Dirty Job 

Adam Marshall from the Reporters Committee for Freedom of the Press highlighted a particularly illuminating edition of the National Security Agency’s internal newsletter, SIDtoday, that shows the agency’s dismissive attitude towards responding to FOIA requests. The title of the article is “What is A FOIA Request? And Why is S02L3 Always Bugging Us?” It calls FOIA a “dirty job,” apologizes for taskings disrupting mission elements’ day-to-day operations, and promises to make the challenge of responding to pesky FOIA requests as “painless as possible.” This is not the appropriate attitude for an agency to foster about its statutory responsibilities under the open records law, and one that should be challenged by both the Department of Justice’s Office of Information Policy and the Office of Government Information Services.

Classified Human Subjects Research

Documents released through the FOIA show that last year the Department of Energy conducted a dozen classified programs involving research on human subjects. The programs, all identified as having minimal risk to the subject, include names such as “Little Workers,” “Hidden Valley,” and “Moose Drool.” Steve Aftergood points out that these programs could involve “physical procedures that are performed on the subjects, or simply interviews and other forms of interaction with them.” The document was released after 2016 guidelines mandated that the DOE produce a listing of all classified programs involving human subjects.

© Misty Keasler

Guatemala Police Archive under Threat

Guatemala’s renowned Historical Archive of the National Police (AHPN) is in crisis after its director Gustavo Meoño Brenner was abruptly removed in one of a series of recent actions orchestrated by the Guatemalan government and a United Nations office. The actions also placed the AHPN’s remaining staff of more than fifty people on temporary contract, and transferred oversight for the repository from the country’s national archives, where it had functioned since 2009, to the Ministry of Culture and Sports. The unexpected move threatens to jeopardize the stability of the AHPN’s enormous collection of fragile National Police documents. Since their discovery in an abandoned and deteriorating state on a Guatemala City police base in 2005, hundreds of volunteers and paid employees have cycled through the AHPN under Meoño’s leadership to clean, organize, scan, and make public over twenty million pages of the estimated 8 linear kilometers of paper records. A UNDP employee with no experience in archival management has been named to replace Meoño as director.

The National Security Archive is collecting institutional and individual signatures and will help coordinate the international response.  To sign, send your name (individual or institutional) to kadoyle@gwu.edu with the subject line “AHPN signature.”

Able Archer on The War Nerd

The Archive’s FOIA director and Able Archer expert Nate Jones stopped by The War Nerd  to discuss his book The Secret History of the NATO Exercise That Almost Triggered Nuclear War. You can listen here.

Cyber Command’s Internet War Against ISIL

The latest from the National Security Archive’s Cyber Vault explores how U.S. Cyber Command’s strategy for curtailing ISIL’s ability to exploit the internet may, at least partially, be paying off. This assessment is based on an  analysis of recently declassified documents obtained under the FOIA by Motherboard and the Archive. The documents focus on Operation GLOWING SYMPHONY, a USCYBERCOM activity authorized in late 2016 to deny the Islamic State use of the internet.

Correlating new information in the records with the results of academic research (for instance, from the George Washington University Program on Extremism) allows for at least a preliminary judgment about the operation’s success. The records offer other research benefits, including the ability to assess how cyber is changing the ways terrorist groups conduct operations and the increasing lethality of counterterrorist responses through the integration of cyber with precision-strike tactics.

#TBT Pick – Too Much Transparency? Not So Much.

This week’s #TBT pick is chosen with a recent Washington Post op-ed by former Indiana Governor Mitch Daniels disingenuously arguing that government transparency has gone too far in mind. Daniels incorrectly argues, like Matthew Yglesias before him, that emails aren’t documents – both are wrong.

This week’s pick is a 2016 Nate Jones article, “Against Transparency?” pointing out that that emails argument:

 “is the exact argument made by the Reagan Administration to the National Security Archive as it attempted to delete all traces of its emails before turning the keys to the White House over to the H.W. Bush Administration in January 1989. Attempting to justify deletion of the email, the responsible official at NARA told the National Security Archive that federal emails were akin to telephone messages slips, not worthy for preservation. Fortunately, for all journalists not named Yglesias, U.S. District Court judge Barrington D. Parker rejected this assertion, ruled for the Archive and against Reagan’s acting Attorney General John Bolton (yes, that one), and granted the restraining order that preserved the Reagan Administration’s emails from deletion. After years of legal battles with both Democratic and Republican administrations, the National Security Archive eventually won the preservation of several hundred thousand White House emails from the Reagan presidency, nearly a half million from the Bush-41 term, 32 million from Clinton, and an estimated 220 million from Bush-43.  Our settlement with the Obama administration ensures that all of his White House emails (along with Blackberry messages) will also be preserved and per the Presidential Records Act, will be available for FOIA requests as early as five years after he leaves office.”

The rest of Jones’ must-read defense of transparency can be found here.

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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.