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Nixon, Thieu, and the Bomb: CIA Report Sheds Light on Richard Nixon’s Madman Diplomacy

February 20, 2018

By Jeffrey Kimball and William Burr

On July 25, 1969, CIA Director Richard Helms notified Henry Kissinger about a “sensitive” report from an informant regarding remarks South Vietnamese President Nguyen Van Thieu had made three days earlier. Kissinger was then in Manila with President Richard Nixon, who would soon stop in Saigon to meet with Thieu and other Southeast Asian leaders before flying on to Europe. The CIA informant’s news was that Thieu had notified the executive committee members of his political alliance, the National Social Democratic Front, about what he called two “extremes of advice . . . Nixon was receiving” about how to end the Vietnam War. The first was the proposal put forward by the National Liberation Front (NLF) in its May 8, 1969, peace plan for “the setting up of a coalition government.” The second extreme proposal Nixon was hearing called for “the dropping of a nuclear bomb on North Vietnam.”

This report, held in the National Security Council Files at the Richard M. Nixon Presidential Library, had been denied in its entirety by the CIA, first in response to the initial request and subsequently in response to an appeal. A final appeal by the National Security Archive to the Interagency Security Classification Appeals Panel produced a decision to release the document except for a few details on the South Vietnamese source of the information. This recent decision demonstrates ISCAP’s continuing value for declassifying historically significant information.

President Richard M. Nixon meeting South Vietnamese President Nguyen Van Thieu, late July 1969.

The discussion covered in the report refers to one of the core demands of the Hanoi Politburo and the NLF for a coalition government between Thieu and the NLF. (Some in the US antiwar movement had also suggested such a coalition as a compromise diplomatic solution to ending the war.)  But Washington and Saigon had consistently rejected this approach. President Nixon’s most recent diplomatic proposal on May 8, 1969, for example, had sidestepped the issue by vaguely calling for international oversight of South Vietnamese elections, in which, presumably, the NLF could – theoretically – participate. The US president had also made it clear that while Washington would be willing to discuss political issues with Hanoi only if Saigon concurred – which, of course, was not likely. Thieu steadfastly refused to negotiate the fundamental matter of who should hold power.

At his July 22 meeting with the National Social Democratic Front, Thieu was attempting to win support for his new negotiating stance, which now dovetailed with Nixon’s. Earlier, on July 11, and following Nixon’s lead, Thieu had also advocated South Vietnamese elections. Both he and Nixon could now claim that they were on the same page. Elections in the midst of war, however, were problematic, and the proposal was unacceptable to the NLF.

Thieu’s second and more startling announcement – that Nixon was being advised to use a nuclear weapon against the North – raises the question of when and from whom Thieu got this information. In our book, Nixon’s Nuclear Specter: The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War (2015), we documented Nixon’s interest before, during, and after 1969 in making Madman Theory nuclear threats against North Vietnam. We also established that the option for dropping two atomic bombs was included in a mid-September “concept of operations” against the North. Henry Kissinger was a willing and active co-conspirator in this regard. It is possible that Saigon’s representatives in Washington or its intelligence network gleaned information from White House sources about Nixon and Kissinger’s pre-September nuclear musings. It is also quite possible that Nixon informed Thieu about the nuclear threat option during their meeting at Midway on June 8, 1969. Kissinger’s brief record of the meeting mentions deadlines, which Nixon and Kissinger used later in the summer to support threats against Hanoi, but he makes no reference to nuclear weapons.

It is also possible, however, that not all of the Nixon-Thieu conversations were written up. According to the White House Daily Diary for that day, Nixon and Thieu had several hours of meetings, including some with advisers. That Thieu had English language skills meant that there was more time for conversations with Nixon on Midway that did not require an interpreter. Whether Kissinger was present at all of these or kept a detailed record of them is unknown.

If Nixon did mention a nuclear weapon option to Thieu at Midway, he probably did it for strategic and political reasons. As a convinced proponent of the Madman Theory, Nixon may have wanted to clue Thieu into the strategy that he believed that Dwight D. Eisenhower had carried out to end the Korean war: by making secret nuclear threats to China. With such a threat, Nixon may also have wanted to ease Thieu’s disappointment on learning that his administration would soon begin withdrawing US troops from Vietnam. While no evidence supports the claims about Eisenhower and the Korean War, Nixon nevertheless assumed that if secret threats had worked for Eisenhower, they were also applicable to the Vietnam situation. Nuclear threats could be used to coerce Hanoi and its Soviet patrons in making concessions at the conference table. Accordingly, in the first months of the administration, Nixon intended to signal the “Soviets about the possibility that we are losing our patience and may get out of control.” If Nixon did say something to Thieu along those lines, it is possible that Thieu interpreted him to mean that the United States might drop a nuclear bomb. Or, Nixon may have told Thieu that dropping a nuclear bomb was an option.

Whatever Nixon said to Thieu might not be lost for all time. Two sources that are presently unavailable may someday shed light on the inner workings of the Nixon administration, including more information on the Nixon-Thieu conversations. First, Nixon kept a diary, which apparently is in the hands of the Richard M. Nixon Foundation. Second, Kissinger also kept a diary (or “office journal”), partly with the assistance of White House staffers. That record is also inaccessible, although the role of official government assistance in compiling it suggests that the Kissinger diary should reside in the National Archives. If those sources ever become available, exactly what Thieu (or his representatives) heard from Nixon or Kissinger may become known.  If Thieu kept a private record of the discussions it has yet to surface.

Jeffrey P. Kimball is emeritus professor of history at Miami University.

Is NARA Rubber-Stamping Potentially Damaging Records Retention Schedules? FRINFORMSUM 2/15/2018

February 15, 2018

NARA OK’s CIA’s Damaging Records Retention Schedule

The CIA could have given a bit more justification to make its case.

The National Archives and Records Administration formally approved a CIA records retention schedule that allows the agency to destroy information that is more than 30 years old – in spite of the warnings from public interest groups and others arguing that permitting the spy agency to delete the records will likely result in the destruction of a large number of potentially important documents.

The CIA’s records retention schedule is troubling enough on its own – it includes potentially allowing the destruction of classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.” It also allows the agency to destroy files related to CIA investigations into alleged unauthorized releases of classified information (which the Agency changed from a permanent to temporary designation). This is a departure from current guidelines, which mandate that leak-related files must be saved permanently. (Amazingly, yesterday the CIA also said “that it has the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.”)

But the records schedule – and NARA’s apparent rubber-stamp approval of it – is doubly concerning considering the agency’s own history of destroying important records. Malcolm Byrne, the Archive’s Iran Project Director, pointed to recent reports that the Agency destroyed records on its involvement in the 1953 coup when it moved offices on the incorrect belief that there were copies of the records elsewhere. Byrne argued in July 2017 that, if “CIA disinterest in some quarters about preserving records, human fallibility, and similar horror stories are a guide, then logic dictates there are plenty of grounds for concern – or at a minimum meaningful oversight, which is always a concern in these days of slashed budgets.” The CIA also “mistakenly” destroyed its copy of the 6,700-page Senate Intelligence Committee report on the agency’s torture program, and destroyed 92 video recordings of Abu Zubaydah being waterboarded 83 times in one month in a black prison site back in 2005.

Last year NARA also approved an outrageous request by the Defense Threat Reduction Agency (DTRA) granting the agency unprecedented control over historical reports on nuclear weapons stockpiles. Specifically, DTRA can, thanks to NARA’s approval, retain custody of its reports on the U.S. nuclear weapons stockpile for 80 years or more after they were created – a move that the Archive’s Dr. William Burr described as an “ill-advised action… contrary to the public interest as well as to NARA’s mission and its organizational interests.”

BLM Tries to Limit FOIA Requests, Pretends FOIA Fees Are Recovered by Agencies

The Bureau of Land Management is attempting to simultaneously limit the number of FOIA requests a person or organization can submit and increase the costs of filing a request with the agency so it “can recover all of its direct costs.” The suggestion – which first appeared in a September 27 report – is misleading on a number of levels. It implies that BLM is receiving more FOIA requests than it can handle or has previously processed, but BLM only received 862 FOIA requests in FY2016, well within a normal range for the agency. It also implies that BLM would see any of the money the agency collects from FOIA fees, which it doesn’t now and wouldn’t in the future, because FOIA fees go to the U.S. Treasury’s General Fund, not to cover agency FOIA costs. It’s also worth noting that, thanks to updates to the 2016 FOIA Improvement Act, if an agency misses its 20-day deadline to respond to a request, it cannot, in most situations, collect fees anyway.

Attempting to limit the number of request a person or organization can file is not a new suggestion – it has even been promoted by some members of the open government community – but it’s not the right track to take. The single best way for agencies to get in front of a growing number of FOIA requests is posting more records proactively, and the easiest way to cut down on processing times and save resources is to embrace a presumption of openness and let more documents go with fewer time-consuming and unnecessary reviews.

Scott Pruitt’s Expensive Carbon Footprint

FOIA requests from the Environmental Integrity Project show how much EPA head Scott Pruitt spent on travel – and that much of it was spent on travelling first class, a habit his predecessors largely eschewed. Specifically, FOIA-released documents show that “the taxpayer-funded travel for Pruitt and his top aides during that stretch in early June cost at least $90,000… That figure does not account for the costs of Pruitt’s round-the-clock security detail, which have not been disclosed.” Pruitt also “brings a larger entourage of political advisers” and the “overseas trips are largely untethered to the kind of multilateral environmental summits that dominated his predecessors’ schedules, and Pruitt rarely discloses where he plans to be.” Pruitt cites security concerns as a reason for not releasing more information in advance about his schedule.

President’s Lawyer Has 5 Ongoing FOIA Lawsuits

One of President Trump’s personal lawyers, Jay Sekulow, “has five pending FOIA lawsuits against the Justice Department and State Department. The suits were all filed in 2016 on behalf of the American Center for Law and Justice (ACLJ), an evangelical legal nonprofit where he serves as chief counsel.” Four of the suits are against the State Department – seeking to obtain information on the Clintons – and the other is against the Justice Department – which is described on the ACLJ website as “a crusade against the ‘deep state.’” In one State Department case Sekulow asked the judge to order the department to “cease its impermissible practice of untimely and noncompliant responses to FOIA requests;” Sekulow also argued that State “intentionally understaff[s] its FOIA department.” Mother Jones reports that the judge did not buy Sekulow’s conspiracy claims, saying instead Sekulow “was frustrated like so many journalists by the government’s failure to promptly respond to FOIA requests, but he wasn’t the victim of a conspiracy.”

FOIA Helps Inform GWU ISIS Study

George Washington University’s Program on Extremism has – with the help of a series of FOIA requests – just released an 87- page report that is “the most comprehensive ISIS study ever compiled in an academic setting.” The document, “The Travelers: American Jihadists in Syria and Iraq,” found that “Sixty-four American citizens have traveled to Iraq and Syria since 2011 to join terrorist groups,” that these extremists do not fit a single demographic, but that most were considered “networked travelers” – meaning that they had personal connections to the jihadist group they joined.

Shah Mohammed Reza Pahlavi of Iran and President Dwight D. Eisenhower – all smiles in the early years following the ouster of Prime Minister Mohammad Mosaddeq. (RFE web site)

CIA Declassifies More of “Zendebad, Shah!” – Internal Study of 1953 Iran Coup

A partially-declassified CIA history of the 1953 coup in Iran, released in late 2017, includes an-depth critique of how the agency approached the operation, highlighting the effects of bureaucracy and politics on the conduct of U.S. clandestine activities. The CIA report, recently posted by the Archive, also reveals details about the hatching of the covert plot as well as its execution.

Portions of the history, “Zendebad, Shah!”, have been made public twice before – in 2000 and 2011 – but those versions were identical and provided only the unclassified passages of the roughly 139-page document, withholding the rest on secrecy grounds. Last year, in response to the most recent Mandatory Declassification Review request by the National Security Archive, the CIA conducted another re-review, this time producing considerably more text, although still holding back a substantial amount.

The posting includes side-by-side examples to illustrate some of the differences in releases over the years.

US Role in the Militarization of Mexico’s Drug War

The National Security Archive’s Mexico Project co-director, Kate Doyle, was quoted in a recent Guardian article on the increasing militarization of Mexico’s drug war. One of the main factors cited for the rise in violence – which has killed nearly a quarter of a million people over the last decade and nearly 30,000 last year alone – is the drug cartels’ recruitment of elite Mexican soldiers – roughly as 1,380 – many of whom have been trained by US advisers. Doyle highlights the role of US military aid as a key factor in the escalation in the drug wars, saying “That US military training and intelligence techniques ended up in the wrong hands is far from unusual. Its lethal spillage into the contemporary criminal context is one of the legacies of US security policy in Latin America.”

TBT Pick – CIA Confirms Role in 1953 Iran Coup

This week’s #TBT pick is chosen with the further release of “Zendebad, Shah!” in mind and is a 2013 posting on the CIA’s first official confirmation of its role in the 1953 coup. The explicit reference to the CIA’s role appears in a copy of an internal history, The Battle for Iran, dating from the mid-1970s. More information on the National Security Archive’s Iran-U.S. Relations project can be found here.

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9th Circuit Finds FBI Can Withhold Information on Surveillance of Muslim Communities: FRINFORMSUM: 2/8/2017

February 8, 2018

9th Circuit Finds FBI Can Withhold Information on Surveillance of Muslim Communities

The Ninth Circuit Court ruled last week that the FBI does not have to release thousands of pages of documents in response to a FOIA lawsuit for information on the Bureau’s surveillance of Muslim communities. During the course of the FOIA lawsuit for information on surveillance of Bay area Muslim communities, the Bureau alleged that nearly 48,000 pages of documents were exempt from release to the American Civil Liberties Union, Asian Law Caucus, and the San Francisco Bay Guardian, pursuant to the FOIA’s exemption 7, which covers law enforcement records and information.

District Judge Richard Seeborg ruled in 2015 that the FBI could not withhold training manuals and guidelines under Exemption 7 because, “Exemption 7 only applies to documents that are related to a specific investigation or enforcement of a particular law.”

The Ninth Circuit disagreed with and rescinded Seeborg’s ruling, “finding that general documents related to a legitimate law enforcement activity can still be withheld under Exemption 7 in certain circumstances.” The judges “remanded the case for further analysis to determine if disclosing the records ‘would cause any of the specific harms’ identified in six subsections of FOIA Exemption 7.”

OSTP Calendars Show Director Candidates Have Been Interviewed, But Position Remains Vacant

A FOIA request for the calendars of the White House Office of Science and Technology Policy’s only political appointee, Michael Kratsios, shows that he had interviewed at least three people to lead the office by October 20, 2017. The names of the candidates were withheld to protect personal privacy, but the calendar shows that aides to Vice President Pence sat in on at least two of the interviews. The directorship of the agency that advises the president on a wide range of science and technology issues, however, remains vacant.

Video of FCC Chairman Pai Joking About Being A Verizon “Puppet” at Agency Event Hidden by B5

The Federal Communications Commission claims that releasing a video of chairman Ajit Pai joking with a Verizon executive about being the company’s “puppet” for a video shown to a gathering of the Federal Communications Bar Association on December 8, 2017, would injure the “quality of agency decisions” and therefore must be withheld under the FOIA’s “withhold it because you want to” Exemption 5. (The video is also available online, making the decision to withhold the video, as well as information on how it was produced, more untenable.) The video was shown at the annual event while the agency was facing wide-ranging criticism for reversing net-neutrality rules.

Exemption 5 is not designed to protect agency employees from embarrassment or because “errors and failures might be revealed, or because of speculative or abstract fears;” it is also discretionary and should take public interest into account. The Archive’s Nate Jones told Gizmodo that, “even if this is a legally valid withholding by the FCC, it is not acting in the public’s interest to hide this information.”

Tet Offensive Documents to Be Declassified Beginning July 2018

The Office of the Director of National Intelligence recently announced that director Coats, to commemorate the 50th anniversary of the Vietnam War’s Tet Offensive, directed the Intelligence Community “to review their holdings to reveal previously classified details to the public.” The move comes a year after former ODNI head James Clapper “instructed the Intelligence Community Senior Historians Panel to identify topics of historical interest for declassification and release, as a part of the IC’s continuing efforts to enhance public understanding of IC activities.” The Tet Offensive release is the first effort in this initiative. The documents will begin being released in July of this year, and will be released over a period of 15 months.

For interested scholars and researchers, the Archive’s Vietnam Project has a number of declassified documents on the Offensive.

Ethics Training for White House Staff to Not Use Encrypted Messages for Official Business

The Washington Post reports that, during a mandatory ethics training, White House lawyers reminded “President Trump’s staff not to use encrypted messaging apps for official government business as the administration seeks to dismiss a lawsuit accusing it of violating federal records laws.” The lawsuit in question is brought by Citizens for Responsibility and Ethics in Washington (CREW) and the Archive, and argues that White House officials reported use of encrypted and disappearing messaging acts, like Confide, violates the Presidential Records Act.

Slate Honorable Mention for Able Archer 83 Project

Congratulations to the Archive’s Able Archer 83 Project and its director, Nate Jones, whose article – co-authored with J. Peter Scoblic – was highlighted for an honorable mention for Slate’s most popular stories of 2017. The article, The Week the World Almost Ended, examines how in 1983, the NATO war game Able Archer 83 simulated a US nuclear war with Russia—and only narrowly avoided starting a real one. More fascinating resources on the War Scare can be found on the Archive’s website.

DC Open Gov Watchdog Canned with No Explanation

The District of Columbia’s mayor-appointed Board of Ethics and Government Accountability recently voted not to renew the second, five-year term of the District’s Open Government director, Traci Hughes, who is in charge of “policing District agencies’ compliance with the Open Meetings Act and Freedom of Information Act.” The decision was made in a closed meeting and no statement was issued. The office – with a staff of three that had to rely on pro bono counsel – sued the “Mayor’s Advisory Commission on Caribbean Community Affairs over its refusal to comply with open-meeting laws” and a judge ruled the commission had to follow Hughes’ recommendations. Hughes also recently ruled that the District’s only public hospital, United Medical Center, recently “violated the law when it held a secret vote to close the facility’s obstetrics ward — a decision that left Southeast Washington without a hospital for women to give birth or seek prenatal care.”

Cyber Brief: Cybersecurity and Deterrence

This week’s new Cyber Brief items are chosen with the January 2018 publication of a draft of the Trump administration’s Nuclear Posture Review (NPR), which has raised questions about modern concepts of deterrence and the potential link between cyber and nuclear weapons, in mind.  This week’s posting provides both the draft and final versions of the NPR, and for context adds a number of related studies on deterrence in the current cyber environment. The draft suggests that a cyberattack specifically on U.S. nuclear command, control, and communications (NC3) could warrant a nuclear retaliation – a notion not as plainly expressed in the final document.

TBT Pick – Richard Leghorn, “Political Action and Satellite Reconnaissance” 

Richard S. Leghorn, one of the fathers of strategic aerial and satellite reconnaissance, died January 15. A Boston Globe obituary notes that when Leghorn photographed the atomic bombing of Bikini Atoll – taking 4 million pictures – it convinced him that “we couldn’t have another war.” Leghorn appears in a number of postings in the Archive’s Intelligence Project, including a 2007 posting on US Satellite Reconnaissance between 1958 and 1976. An April 24, 1959, memo featured in the posting and authored by Leghorn, then the head of the Itek Corporation –  the contractor that developed the reconnaissance camera for the CORONA system – addresses the issue of the possible political vulnerability of U.S. reconnaissance satellite programs. Leghorn argues that the “espionage” context in which U.S. programs were viewed – a result of the secrecy attached to the programs – is the “worst possible” context from the standpoint of political vulnerability and suggests the need for an “imaginative political action program” as a means of reducing the program’s political vulnerability.

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Behind the House Intelligence Committee’s Ability to Release “The Memo”

February 2, 2018

From Otis Pike to Devin Nunes – Vastly Different Goals Drove Congressional Efforts to Release Secrets

New York Democrat Otis Pike, chair of the House Select Committee

If you’ve been watching television, YouTube, listening to radio, streaming on your monitor or reading the newspapers, a lot of this week has been taken up by “The Memo.” Chasing devils in Tasmania or traveling elsewhere you might have missed it, but in any case catching up you will find that many pundits and reporters have been saying the House of Representatives bylaw which permits release of “The Memo” is an obscure bit of arcana. In fact, it is not. And House Permanent Select Committee on Intelligence (HPSCI) abilities under Rule XLVIII, Section 7, were forged in the heat of a near-constitutional crisis forty-three years ago.

You can read all about it in the Archive’s June 2017 posting, The White House, the CIA and the Pike Committee, 1975. But the story, in short, is this: in the year 1975 the intelligence agencies were under investigation by special committees in both the Senate and House. The Church Committee, chaired by Idaho Democrat Frank Church, and the House Select Committee (HSC), chaired by New York Democrat Otis Pike, both faced major obstacles in obtaining the information they needed for their inquiries. In addition to the intelligence agencies themselves, Gerald R. Ford’s White House posed obstacles, insisting on pre-approval of any document supplied to the congressional committees. Richard Cheney, as President Ford’s representative, supervised the response. The White House set up a committee of its own, one to oversee the defense of the intelligence agencies, chaired by John Marsh with sidelines advice from presidential counsel Phil Buchen.

White House, Memo from Henry Kissinger, National Security Advisor, to Jack Marsh, Counselor to the President, “Administration Position Towards the Handling of Classified Information with the Pike Committee,” September 23, 1975.

Otis Pike’s investigation kicked up dust in September 1975, responding to executive branch refusals to furnish documentation by issuing subpoenas. Ford’s Justice Department struck back with a blanket refusal to cooperate with the HSC, based on the committee’s alleged intent to reveal secret information. John Marsh’s White House defense committee squirmed on the hook, caught between its desire to avoid scrutiny of the agencies, and the legal power of the Pike committee’s actions. Secretary of State Henry Kissinger advised President Ford to fight the congressional orders even if it meant going to the Supreme Court. The precedents were clear, however. Any judge would find the Pike Committee had been properly empaneled by the House of Representatives, therefore wielded statutory authority which provided that no congressional panel could be denied information necessary to its mission, and that the subpoenas were legal and enforceable. Escalating to the Supreme Court offered no remedy—as with the “Pentagon Papers” case, a Court precedent on paper, against the executive, could be more dangerous than leaving the issue juridically ambiguous.

Both White House and CIA lawyers, in examining the substance of the case, concluded that President Ford had no alternative but to yield on the information, but he could ask Congress to suppress investigators’ reports later. The play around the Pike Committee investigation in 1975 went exactly that way. To get around the formal Department of Justice declaration, intelligence agencies gave information to the HSC under the pretense they were “loaning” the documents. The Pike committee tacitly promised not to release anything without executive branch approval. Once the committee’s report had been completed President Ford asked the House of Representatives to reject its release. The House honored the president’s request. (The leak of the Pike committee report which followed did not count as an official “release.”)

In the meantime a different kind of precedent arose. The Church committee completed an interim report on assassination plots—and President Ford asked that that document be suppressed as well. Ford’s gambit failed, but that is a story for another day. With the Church assassination report example in mind, the House Select Committee included among its recommendations one that any permanent oversight committee have a recognized right to release information of any sort, and suggested draft language which specified the mechanism for doing so. Pike’s recommended language went into the rules for the House permanent intelligence committee without change.

Devin Nunes’ official portrait.

That is the origin of the Section 7 rule under which Devin Nunes has maneuvered to get his “Memo” released. Congressman Pike and his colleagues created a mechanism to prevent the executive branch from impeding an investigation. Mr. Nunes has reversed this purpose, using the same rule in a maneuver to use the Congress to impede an executive branch agency from investigating the president. As the world turns anything can happen it seems.

Secretary Carson on Alleged Ethics Violations: “They can FOIA everything, and they have been,” and “There’s nothing to find. It’s ridiculous.” FRINFORMSUM 2/1/2018

February 1, 2018

FOIA Shows Concern at HUD that Carson was Flouting Ethics Rules

A FOIA request by the Washington Post won the release of a two-page memo voicing concerns from the Department of Housing and Urban Development’s general counsel that Secretary Ben Carson was inappropriately allowing his “son to help organize an agency ‘listening tour’ in Baltimore last summer.” The event was intended to “give the secretary a chance to see federally supported housing projects firsthand and to convey his policy vision to the public,” but the involvement of Ben Carson Jr., a prominent businessman who lives near Baltimore, begged concerns that he was using the event to court potential deals.  The Washington Post reports, “Jereon Brown, a HUD spokesman, confirmed that Carson Jr.’s role was not limited to the community event but declined to be more specific. He said no one was dropped from the list of invitees after the ethics warning. He did not respond to questions about what steps, if any, the secretary took to address the issues raised by the department lawyers.” Of the allegations of impropriety Carson said, “They can FOIA everything, and they have been,” he said. “There’s nothing to find. It’s ridiculous.”

Scott Pruitt’s Role in EPA Document Scrub

FOIA releases from the Environmental Protection Agency indicate that agency head Scott Pruitt was personally involved in decisions to remove climate science data from the agency’s website and that staff were instructed to manipulate search results to promote the Trump Administration’s executive order on energy independence. The documents, released to the Environmental Defense Fund, show Pruitt’s former public affairs associate director, J.P. Freire, requesting the webpages “Climate Change Science,” “Climate Change Impacts,” and “Student’s Guide to Global Climate Change” be removed and archived, calling the request to do so time-sensitive. Emails released through FOIA also detail how EPA staffers were told to redirect website users searching for information on the Clean Power Plan to a page promoting President Trump’s EO on energy independence by making information on the EO a “‘Best Bet’ and thus the first result for Clean Power Plan for our EPA Search engine if you request it.”

Infamous House Memo Alleging FISA Abuses Authored While House Overwhelmingly Voted to Reauthorize FISA  

House Republicans, led by House Intelligence Committee chair Devin Nunes, are trying to release a classified memo that purportedly cites serious abuses of the Foreign Intelligence Surveillance Act. The move comes less than three weeks after the House overwhelmingly voted to reauthorize the FISA and less than two weeks after President Trump signed it into law. The reauthorization, supported by Nunes and Trump, codifies changes to the FISA, including “warrantless FBI queries for Americans’ communications.”

Politico reports that Nunes began investigating the subject of the memo in December 2017 – well before the FISA reauthorization vote, which begs the question: why was the Act was reauthorized at all if the abuses alleged in the memo are legitimate?

The Committee majority is pushing for the memo’s release with the support of the White House but in the face of concerns from the Justice Department and the FBI.

Archive “Snowflakes” FOIA Win Featured on NPR’s ‘All Things Considered’

The Archive’s FOIA Project Director Nate Jones recently stopped by NPR’s ‘All Things Considered’ to discuss the thousands of Donald Rumsfeld “snowflakes” that are being released in response to the Archive’s FOIA lawsuit (more on the documents and lawsuit here). When asked how the memos change after 9/11, Jones notes: “They show initially the secretary of defense coming into the Pentagon and trying to get his – to grasp what’s going on. He actually on September 10 gives a big speech saying that up until this point, he wanted to do battle against entrenched Pentagon bureaucracy, comparing the Pentagon bureaucracy to Red China and the Soviet Union. Then 9/11 happens. On September 12, we have a snowflake that says, we have to figure out some kind of ceremony for all the people that died here. And then that battle on bureaucracy ended, and the war on terror began.”

The Defense Department has released roughly 1,000 pages of documents to the Archive so far as part of our suit, and we expect to receive tens of thousands more. Jones says, “You can’t help but look forward to see and wonder who is going to be mentioned, obviously looking forward to key players today like Secretary Mattis and General Flynn to see how they interacted with Secretary Rumsfeld.”

Scavenging for Intelligence: The U.S. Government’s Secret Search for Foreign Objects during the Cold War

The Archive’s latest posting, compiled by James E. David, curator of national security space programs at the Smithsonian National Air & Space Museum, examines an underreported aspect of U.S. intelligence – “Foreign Military Exploitation” (FME). FME refers to U.S. military and intelligence efforts to discover foreign military equipment to learn adversaries’ abilities and develop defenses against them. The posting draws on records dating from the Cold War “from the Central Intelligence Agency, Defense Intelligence Agency, State Department, National Security Council, and the U.S. Air Force, that describe the priorities, methods, and results of some of the U.S. government’s wide-ranging exploitation efforts, from analyzing Moscow-supplied military equipment captured by Israel during the Six-Day War, to finding a gas bottle dropped from a Soviet satellite over Wisconsin.” The fascinating posting can be read in its entirety here.

Cyber Brief – Emerging Technologies

This week’s new Cyber Brief item – The President’s National Security Telecommunications Advisory Committee 2017 Report on Emerging Technologies Strategic Vision – is chosen with the recent spate of stories on the Strava heat map in mind. Strava data unwittingly publicized highly precise location information on Western military bases and personnel around the world, including in some politically sensitive spots like the Middle East, and raised questions not just for the governments concerned but for private subscribers worried about protecting their own activities. This week’s featured document, as well as a curated selection of relevant documents from our Cyber library, offers background on similar topics – namely security issues surrounding mobile devices and the Internet of Things.

TBT Pick – Tokyo, Washington and the Case of the Missing Nuclear Agreements

This week’s TBT pick is a 2009 posting from the Archive’s U.S.-Japan project concerning the status of secret agreements on nuclear weapons that Tokyo and Washington negotiated in 1960 and 1969. The existence of these agreements was confirmed by declassified U.S. government documents, interviews with former U.S. Ambassador Edwin O. Reischauer, and memoirs by Japanese diplomats. Read the posting here.

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‘Homeland’ Sounds Too German and Other Takeaways from the First Tranche of Rumsfeld’s Snowflakes Release: FRINFORMSUM 1/25/2018

January 25, 2018

Rumsfeld Snowflakes Come in From the Cold

On February 27, 2001, Secretary of Defense Donald Rumsfeld told Deputy Secretary Rudy de Leon that “The word ‘homeland’ is a strange word. ‘Homeland’ Defense sounds more German than American. Also it smacks of isolationism.”

In July of that year he wrote to Doug Feith of his thoughts on oil, noting, “We ought to have on our radar screen the subject of oil- Venezuela, the Caucuses, Indonesia-anywhere we think it may exist and how it fits into our strategies.”

In December he instructed Deputy Secretary Paul Wolfowitz to “get a team together” to “make our next case on anything we do after Afghanistan.”

These brief memos, often described as ‘snowflakes’ – the term used to describe Rumsfeld’s usually one-page, often one-sentence, memos that he sent to his underlings to ask a question or issue an instruction – are just a few of  an estimated 59,000 pages that the Pentagon has begun to provide in segments to the Archive in response to our multi-year FOIA lawsuit. In court filings the Department of Defense attorney confessed, “As far as the delay in the initial response to the request, all I can do is fall on our sword; that was too long.”  Judge Tanya S. Chutkan agreed, calling the DOD six-year delay in response to the Archive’s FOIA request “unconscionably long.”

 

The full archive of snowflakes is a critical historical resource and will serve as a sort of ultimate Pentagon chronology, touching on such diverse DOD issues as staffing, Rumsfeld’s personal requests, advice from such notables as Frank Gaffney and Newt Gingrich, communications from Rumsfeld to President George W. Bush, relations with Russia, China, and other nations, and the DOD’s strategy and conduct in the wars in Afghanistan and Iraq.

The Archive will publish new installments of snowflakes as they are released to us. Special thanks to the Archive’s pro bono lawyers Melissa Smith, Cliff Sloan, and Greg Craig at Skadden Arps Slate Meagher & Flom.

ICE Posts Personal Information from Victims of Immigration Crime Engagement Office Callers, Briefly Takes Down FOIA Library

Immigration and Customs Enforcement temporarily removed and reviewed the entire contents of its FOIA library late last year after releasing the private information of hundreds of people who had called into the Victims of Immigration Crime Engagement (VOICE) office – publishing the potentially personally identifiable information in both its public call logs and in FOIA releases. VOICE was established in April 2017 by the Trump administration “to support victims of crimes by immigrants” and is not meant to be a crime hotline – although logs released the Arizona’s The Republic in response to a FOIA request show it is largely used “to accuse people of being in the country illegally or of violating immigration laws.” ICE offered two years of identity-theft protection and credit monitoring to those affected by the release and asked the paper to confirm that it had destroyed the records that were sent in error.

E-Discovery Program Slows HUD’s FOIA Work

An Inspector General evaluation of the Department of Housing and Urban Development’s FOIA program comes to a blunt conclusion: the agency is too slow to respond to FOIA requests. The report faulted the agency’s E-Discovery Management System, saying it “does not fulfill its job.”

FedScoop describes the e-discovery system as follows:

“HUD has a contract with Leidos Innovation Corporation for such e-discovery services, the evaluation paper states. As set forth in the contract, the process works like this: A HUD customer (the FOIA office, for example) submits a request for ESI. That request is approved by the general counsel e-discovery team and then passed on to the Leidos contractors for actual collection of the materials.”

The IG found that, among other problems, incoming FOIA requests are more than Leidos’ contract was estimated to cover.  The IG suggests one possible solution would be “moving ESI data to the cloud — away from localized storage — will make it easier to find.”

 “FOIA Surge” Extended at State

Secretary of State Rex Tillerson has extended the “FOIA surge” at the State Department for another 90 days in an attempt to clear the agency’s backlog. The surge is pulling in career diplomats and senior civil servants from other departments in a move that some believe is designed to make them quit (see here for more). The surge was first announced in October 2017 and was intended to clear the department’s backlog of more than 13,000 requests. Politico’s Nahal Toosi reports that, despite the genuine need for the department to reduce its backlog, some officials “see the initiative as a make-work exercise designed to induce them to quit as Tillerson tries to cut State’s budget and streamline its staff.”

NSA Deleted Surveillance Data After Telling Court It Would Be Preserved

News that the National Security Agency deleted surveillance data pertinent to multiple pending lawsuits is breaking shortly after Congress authorized, and the President signed into law, the extension of the legal authority that authorizes the agency’s surveillance work. The NSA, in addition to deleting the data, “apparently never took some of the steps it told a federal court it had taken to make sure the information wasn’t destroyed” – information it has been required to maintain since 2007.  Court filings first reported by Politico’s Josh Gerstein show that the agency “did not preserve the content of internet communications intercepted between 2001 and 2007 under the program Bush ordered. To make matters worse, backup tapes that might have mitigated the failure were erased in 2009, 2011 and 2016.”

The government admitted the deletion and non-compliance in a court filing on January 18, 2018, one day before President Trump signed the FISA Amendments Reauthorization Act of 2017 into law; the authorization will expire in December 2023.

Sunlight Foundation’s audit of agency opengov responses.

Sunlight Foundation Reports on Openness under Trump

The Sunlight Foundation has released its report on transparency under President Trump, “Under Trump, U.S. government moves from /open to /closed.” As part of its survey, Sunlight contacted the 24 agencies covered by the Chief Financial Officers Act and asked them a series of questions – including for basic FOIA statistics agencies are required by the Justice Department to disclose every quarter (the State Department does this). Sunlight found, “When we called public FOIA officers/liaisons for the first time, we reached voice mail 91 percent of the time, and then received a callback 26 percent of the time. Of those callbacks, just 20 percent our answered questions regarding 2017 FOIA statistics.” The remaining agencies, including the Department of the Interior, told Sunlight to file a FOIA request for the data – displaying a troubling lack of awareness of their obligations under the FOIA.

Cyber Brief: United States Department of Defense Cyber Operations

The Archive’s Cyber Vault recently posted a new document received in response to an Archive FOIA request on DOD’s cyber operations – STRATCOM’s February 2008 CDRUSSTRATCOM CONPLAN 8039-0. The document, which is posted alongside 11 relevant documents from our Cyber Library to help researchers contextualize the new release, provides cyberspace strategy for Strategic Command and a framework for the execution of tasks to generate effects in cyberspace in support of DoD objectives.

TBT Pick – The Diem Coup: JFK an South Vietnam

This week’s #TBT pick is a 2013 posting commemorating the 50th anniversary of the coup overthrowing South Vietnamese President Ngo Dinh Diem. The posting “further strengthens the view that the origins of U.S. support for the coup which overthrew South Vietnamese president Ngo Dinh Diem 50 years ago today traces directly to President Kennedy, not to a ‘cabal’ of top officials in his administration.” Get the whole story here.

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Presidential Records Act Lawsuit Targets White House’s Disappearing Messaging Apps: FRINFORMSUM 1/18/2018

January 18, 2018

Federal Judge Hears Oral Arguments in Presidential Records Act Case Targeting Disappearing Messaging Apps

Lawyers for the National Security Archive and Citizens for Responsibility and Ethics in Washington (CREW) argued this week that their case – alleging that the White House is not upholding its responsibilities under the Presidential Records Act – has grounds to proceed in spite of the government’s motion to dismiss. Oral arguments were heard by Judge Christopher Cooper in the District Court for the District of Columbia.

CREW and the Archive first filed suit in June 2017 on the heels of reports that some members of the White House staff were using messaging apps, like Confide, that prevent the storage and preservation of records.

This week Justice Department lawyer Steven Myers argued that the court did not have the jurisdiction to hear the case, saying “Courts cannot review the president’s compliance with the Presidential Records Act.”

The scope of the PRA, however, has been “defined by litigation” brought by the National Security Archive, such as when the Archive “sued at the end of the Reagan administration to preserve email backup tapes that provided evidence in the Iran-contra scandal — that produced the appeals court rulings in the 1990s — or when it and CREW in 2009 won the restoration of 22 million emails from George W. Bush’s presidency.”

CREW’s Anne Weismann countered the DOJ’s argument saying, “If this court found there is no judicial review here, then I think the president and White House would be granted license to ignore all Presidential Records Act obligations.”

The suit also challenges the Trump administration’s use of Executive Orders, saying it has the potential to transform “into presidential records what would otherwise become federal agency records, allowing them to be cloaked in secrecy.”

Judge Cooper said he would rule “in due course” on the government’s motion to dismiss.

There was no mention during the oral arguments of the “Trump administration’s move to ban personal electronic devices from the White House,” which would likely effect staffers’ use of such apps.

FOIA Advisory Committee Votes on Common-Sense Recommendations for Searches, Access

At its most recent meeting the FOIA Advisory Committee unanimously voted to support the recommendations – ranging from general guidance and specific steps agencies should take – developed by the committee’s subcommittees. The Office of Government Information Service’s (OGIS) blog summarizes the approved recommendations as follows:

  • increase the release of agency FOIA logs in a way that is most useful to improving understanding of agency records and how the law is being used;

  • provide agencies with criteria for setting priorities for proactive disclosure;

  • give agencies a guide to categories of records that should be regularly released based on the ease of making them available and their importance for understanding the government’s actions; and

  • address requirements that documents on agency’s FOIA websites are accessible to individuals with disabilities.

The Advisory Committee also passed recommendations instructing agencies to ensure that they are taking steps to efficiently and accurately search emails in response to FOIA requests.

The concrete and common-sense recommendation concerning 508 compliance advised agencies not to remove documents from their websites (as has troublingly occurred recently), encouraged common-sense remediation practices (including simple Optical Character Recognition scans) and explained that unremediated documents can still be posted online if they meet an “undue burden standard” included in the Rehabilitation Act. Ripe targets for this “undue burden standard” include documents not “born in electronic format” and large, voluminous records. Until now, there has been no recommendation or guidance on how to proactively post documents online by the Access Board, DOJ OIP, or OGIS. Hopefully this unanimous recommendation by the Federal FOIA Advisory Board will increase the speed, quantity, and quality of documents that the federal government posts online for the public to have access to.

The Advisory Committee’s next meeting is April 17.

SEC Wants to Make it Harder to File FOIA Requests from Educational Institutions

SEC’s proposed rule change for FOIA requests from educational institutions.

The Securities and Exchange Commission has proposed a rule that would make it harder – and potentially more expensive – to file FOIA requests from an education institution.

Currently, to be recognized as filing a FOIA request on behalf of an educational institution, and conversely to qualify for favorable fee status, the FOIA only requires that the affiliated organization “have a purpose of scholarly or scientific research.”

The Securities and Exchange Commission, however, has proposed a rule that would make it significantly harder to qualify. The proposed rule would require that “A requester in this fee category must show that the request is authorized by, and is made under the auspices of, an educational institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research.”

As reported in JD Supra, this “makes two potentially important changes to the statutory requirement.  First, the statute merely requires the disclaimer of a commercial purpose, the SEC’s rule requires a showing of scholarly purpose.  Second, the SEC’s requirement narrows the noncommercial purposes to only ‘scholarly research’.  While this may seem little more than a cavil, the SEC should not be allowed to erode the FOIA by subtly shifting statutory requirements.”

Comments are due by February 2.

CIA Will Release Fudge Recipes but not post-WW II Clandestine Service Histories

Benajmin Wittes recently submitted a FOIA request to the CIA for director Mike Pompeo’s 2017 holiday message to agency personnel after hearing complaints that the message was overtly political – and, in response, received a personal note from Pompeo defending his message.

A copy of the message was included in the response (along with Pompeo’s family fudge recipe).

Curiously, while the message was redacted, it was not released through FOIA (if it had been, classification markings would be crossed out, there would be exemptions cited for the redactions, and there would be a denial letter advising the requester their appeal rights). Taking the FOIA response out of the FOIA track is, in this instance, probably harmless enough, but is at an odd precedent and time that would have been better spent releasing historical documents of actual importance – like agency clandestine service histories from the 1940s and 50s – that the CIA continues to hide.

A “Harsh and Terrible…Solution”

A new book by long-time colleagues of the National Security Archive, James G. Blight and janet M. Lang, offers a fresh exploration of the 1962 Cuban missile crisis and plumbs its lessons on the continuing dangers of nuclear war.

Homing in on the Cuban perspective, Dark Beyond Darkness aims to fill a persistent gap in the history – the general dismissal of Cuba’s stake – that not only skewed our understanding of the event for years but helped make the crisis so perilous in the first place. It places the Cuban dimension squarely at the center of the reader’s line of sight, allowing for an in-depth appreciation of the “physical and psychological reality faced during the crisis by everyone in Cuba” as they struggled to deal with the seemingly existential threat presented by the superpowers’ ill-informed and self-absorbed mutual face-off.

A flyer in which five independent initiatives invite citizens to participate on January 15, 1989 in a Jan Palach memorial in Prague, as well as a January 21 pilgrimage to his grave in the village of Všetaty (30 km north of Prague).

TBT Pick – Jan Palach Week, 1989

This week’s #TBT pick is chosen with the anniversary of “Palach Week” in mind and is a 2009 posting on the beginning and end of Czechoslovak Communism. The posting contains documents from the secret police, the Communist Party, and dissident documents posted jointly by the Czechoslovak Documentation Centre (Prague) and the Archive.

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