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FOIA Helps Show Elaine Chao’s Transportation Department Has Special Liaison for Husband’s Home State Projects: FRINFORMSUM 6/13/2019

June 13, 2019

Sen. Mitch McConnell and Transportation Secretary Elaine Chao at a parade in Madisonville, Ky., on Nov. 2, 2014. | Tom Williams/CQ Roll Call.

Emails Released through FOIA Show Special Relationship between Transportation Dept. and State of Kentucky

FOIA-released records obtained by American Oversight and provided to Politico illuminate how Transportation Department Secretary Elaine Chao prioritizes requests from Kentucky – home state of her husband and Senate Majority Leader Mitch McConnell. Specifically, the department established a special liaison, Chao’s chief of staff Todd Inman who is also a longtime Kentucky resident, “to help with grant applications and other priorities…paving the way for grants totaling at least $78 million for favored projects as McConnell prepared to campaign for reelection.” Other states do not have a special liaison within the department.

This revelation comes on the heels of a February release of more than 800 pages of FOIA-released emails that further detail Chao’s office’s relationship with leaders from Kentucky. The emails show that Secretary Chao “met at least 10 times with politicians and business leaders from the state in response to requests from McConnell’s office.” While the records do not show how often Sec. Chao met with leaders from outside of Kentucky, they do show “McConnell’s staff acting as a conduit between Chao and Kentucky political figures or business leaders, some of whom previously have had relationships with the couple.”

FOIA Records Shed Light on Dept. of Interior Efforts to Stymie Humanitarian Aid Along the Southern Border

A federal jury in Tucson was unable to reach a verdict in the case of Scott Warren, a geographer who was charged with human smuggling last year in connection with his work for the humanitarian aid organization No More Deaths, which leaves food and water for migrants crossing the Sonoran Desert and has led efforts to recover remains of those who have died. Judge Raner C. Collins dismissed the jury and the U.S. attorney’s office has yet to indicate if it will seek another trial.

Warren’s was one of three No More Deaths-related trials, and FOIA requests from earlier this year help show what the Department of Interior has done to target the aid group. Specifically, emails released to The Intercept under the FOIA detail how the Fish and Wildlife Service, an Department of Interior agency that administers much of the land on the southern Arizona border, has sought to blacklist its members from access to a number of public sites. The FOIA release focuses largely on the communications of Fish and Wildlife official Sidney Slone, who worked to make the permitting process for No More Deaths much more stringent. Slone’s growing frustration with the food, clothing, and plastic gallon water jugs purportedly left by the volunteers are evident throughout the exchanges. The Intercept’s Ryan Deveraux argues, “The newly released materials illustrate how generations of hard-line border enforcement measures collide with government wilderness preservation priorities, creating a situation in which thousands of people have died and the actions of those working to prevent further loss of life have been criminalized in the name of environmental conservation.”

Congressional Transparency Caucus 

Alex Howard has a useful rundown of the June 7 Congressional Transparency Caucus meeting – “a remarkable forum inside of the United States Capitol that featured ten presentations from government officials and members of civil society on innovative tools and technologies.” Presenters included Demand Progress’ Daniel Schuman, ProPublica’s Derek Willis, and the Department of Justice Inspector General Michael Horowitz. The live stream and Howard’s analysis can be found here.

DHS IG Resigns after Whitewashing FEMA Audits

The Department of Homeland Security’s Inspector General, John V. Kelly, has resigned after reports that he instructed his staff to misrepresent the agency’s disaster response. The internal review, which was completed over 14 months and was obtained by the Washington Post, found that Kelly “overrode auditors” and instructed them “to ignore more problems,” and ordered them to produce “feel-good reports.” This practice spanned five years, 2012-2017, which saw some of the country’s most catastrophic natural disasters – from 2012’s Hurricane Sandy to the epic 2016 flooding throughout southern Louisiana. In 2017 Kelly’s office, facing Congressional pressure, purged 13 faulty reports from its website, including the Louisiana flooding report, with a notice that they were “not compliant” with federal auditing standards. During Kelly’s tenure, negative information not placed in audits was sometimes placed in “spin-off” reports.

Guatemalan Police Archives.

Kate Doyle Talks with The Intercept about Threat to Guatemala’s Historical Archive of the National Police

The Archive’s Guatemala Documentation Project Director, Kate Doyle, recently spoke with the Intercept’s Cora Currier about the current threat to Guatemala’s National Police Archives – a once decaying building containing five miles worth of paper documents belonging to the National Police, the central branch of Guatemala’s security forces – an entity so deeply involved in repression during the armed conflict that the 1996 peace accords mandated it be completely disbanded.

Doyle gives a riveting history of the archive and how it was, somewhat miraculously, discovered:

“Their records ended up on a sprawling police base in Zone 6 of Guatemala City, a busy working-class neighborhood downtown. They were shut up inside an abandoned cluster of buildings inside this big base that had a lot of different barracks and activities and all kinds of things going on. Fast forward to 2005, when residents of that neighborhood called the government’s human rights prosecutor and asked for his help in determining whether weapons and munitions were being stored properly on the base. In the course of that somewhat routine inspection of the base, the investigators found these documents, and that is how this enormous, abandoned, moldering collection of documents — millions and millions of historical files of the abolished National Police — came to be found.”

Doyle also cites her concerns that Guatemalan President Jimmy Morales may not only use national security concerns as a cover for closing the archives, but that the government may take legal action against the Swiss government and the University of Texas at Austin, which both have backup copies of the archives.

For more information on the police archives, visit our special collection.

The “Launch on Warning” Nuclear Strategy and Its Insider Critics

“Launch-on-warning,” a feature of U.S. nuclear warfighting strategy since the late 1970s, has frequently faced intensive criticism because of the high risk of accidental launches and uncontrollable outcomes, including massive casualties, according to recently declassified records recently posted by the Archive. Yet, successive presidential administrations have stood by a prompt-launch approach. Two newly declassified highlights of the posting are White House adviser William Odom’s critique of launch-under-attack and President Ronald Reagan’s National Security Decision Directive 13, which provided criteria for nuclear war planning, including the role of launch-on-warning as a way to keep Moscow “uncertain.”

TBT pick – The Guatemalan Death Squad Diary and the Right to Truth

This week’s #TBT pick is a 2012 posting on Doyle’s 2012 testimony before the Inter-American Court of Human Rights in the case of the Diario Militar in Guayaquil, Ecuador, and features a transcript of her testimony. She begins, “the State of Guatemala has systematically hidden the information in its power about the internal armed conflict. The Guatemalan Army, the Police and the intelligence services are intrinsically opaque, secretive and closed institutions, and it has been almost impossible to gain access to their records. This policy of silence has survived the peace accords; it has survived the Historical Clarification Commission; and it continues today – despite the discovery of archives, the exhumations of clandestine cemeteries, the criminal convictions of perpetrators of human rights violations, and the unceasing demand for information by families of the disappeared.”

Read the entire testimony here.

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DOJ FOIA Report Shows OIP Still Living in “La-La-Land”: FRINFORMSUM 6/6/2019

June 6, 2019

Year after year, the Department of Justice’s Office of Information Policy (OIP) issues a summary of annual agency FOIA reports that misinterprets FOIA performance across the federal government to the point the report’s main conclusions are unreliable, and this year is no different.

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

OIP’s mandate is to “encourage” government-wide FOIA compliance – an important step short of actually enforcing the law – and its longtime director, Melanie Pustay, doggedly refuses to acknowledge FOIA’s systemic problems, agencies’ hostility to complying with FOIA, or her office’s unwillingness to take agencies to task for not following the law. In 2015 Pustay was accused by the former chair of the House Committee on Government Oversight and Reform, Rep. Jason Chaffetz (R-Utah), of living in “la-la-land” for testifying that she believed FOIA was being properly implemented, and Senator Chuck Grassley told her during a 2018 hearing that her explanations for why the “release to one, release to all policy” had yet to be finalized (it still hasn’t) didn’t pass the “common-sense test.”

A great example of a “partial release” – more on FOIA Mapper:

With this in mind, we can take the latest report’s finding of a government-wide FOIA release rate of 93.8% with a bucket of salt. The report says that this is “the tenth year in a row that the number of responses to FOIA requests where agencies provided a release of information either in full or in part exceeded 91% of the requests processed for a disclosure determination.”  What the report does not say is that OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see right for an example), and excluding requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent, and a closer reading of the OIP report puts that figure at 65 percent.

Other highlights from the report include:

  • The government received more FOIA requests than ever in FY 2018, totaling 863,729 requests.
  • Backlogged requests have shot up from last year, from 111,344 to 130,718.
    • My colleague Nate Jones notes in his must-read article, FOIA: A Colossus Under Assault, that in 2008 “the President of the United Statesinstructed every federal agency to reduce its FOIA backlog by ten percent every year. How many agencies followed this presidential order? Just a single one: the Department of Health and Human Services. If agencies had followed this presidential instruction, most if not all of FOIA backlogs would be eliminated and requesters could get their documents in a timely fashion. But as ninety-nine percent of agencies disobeyed a presidential instruction, no one from the White House, Congress, the DOJ Office of Information Policy, or the FOIA Ombuds Office chastised or prodded agencies, or analyzed why the president’s instruction was not followed.”
  • Processing time for the majority of “complex requests” (an arbitrary term that covers many straight-forward requests) takes between 100 and 120 days, with a decent percentage of “complex” requests taking over 400 days to process. The FOIA statute mandates a response be given within 20 business days, 30 if there is a good reason for an exception.
    • Remember, the 2016 FOIA Improvement Act mandates that if an agency misses its response deadline, it often can’t charge fees.
  • The appeals backlog is growing – up to 4,745.
    • Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
  • Litigation costs rose to roughly $40,800,000.
  • “By the end of the fiscal year, agencies reported collecting a total of $2,981,312.77 in FOIA fees. The FOIA fees collected in FY 2019 amounts to less than 1% of the total costs related to the government’s FOIA activities.” These fees are not recouped by the agency, but are instead deposited in the Treasury Department’s general fund, making it all the more frustrating to see agency’s use “fee bullying” techniques to intimidate requesters into dropping or unnecessarily narrowing their requests.

This year’s OIP summary report makes clear that agencies will need to embrace technology and proactive disclosure if they hope to escape the growing number of requests, backlogged appeals, and litigation, and OIP should be leading that charge rather than defending agencies’ FOIA practices at every turn.  If agencies are looking for guidance on how to move forward in the absence of true leadership from OIP, they should turn to the recommendations made by the FOIA Federal Advisory Committee, which includes instructions on how agencies should be proactively posting documents online and how to conduct more efficient searches — the key reason behind the years and decades-long processing delays.

FOIA Federal Advisory Committee Update

The FOIA Federal Advisory Committee’s 2018-2020 term held its most recent meeting today in the National Archives and Records Administration’s McGowan Theater, and the livestream from the event can be found here. The subcommittees on records management, vision, and time/volume all offered updates, and the University of Denver’s Sturm College of Law’s Margaret Kwoka delivered a presentation on who uses FOIA and what information they are trying to obtain. Kwoka’s findings show that the majority of FOIA requesters at certain agencies are commercial requesters seeking business information, or people seeking first-person information about themselves, which is information that could help those agencies identify which records requesters would benefit most from the agency posting proactively.

Tiananmen Massacre 30th Anniversary: Declassified Records Describe Attacks by Chinese Troops, Internal Official Debates, and U.S. Attempts to Keep U.S.-China Relations on Track

This week the Archive published a special exhibit on the 30th anniversary of the massacre at Beijing’s Tiananmen Square, 4 June 1989. The declassified documents selected for the exhibit demonstrate that U.S. embassy officials realized very quickly that the Chinese military had carried out a massacre ordered by top officials who feared the public expression of dissent. They also document the mixed U.S. response to the massacre, on the one hand, sheltering a protestor, and on the other, trying to keep open lines of communication with Chinese authorities and to maintain flows of U.S. investment. As part of an ongoing brutal crackdown of internal dissent, Chinese authorities have carried out a harsh policy of history suppression, forbidding on-line or other discussions of the events at Tiananmen Square. In light of that it is worth recalling what U.S.  government officials learned at the time and how they assessed Beijing’s response to internal dissent.

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Presidential Memo “Effectively Amends” EO 13526: FRINFORMSUM 5/30/2019

May 30, 2019

Trump Memo “Effectively Amends” EO 13526 to Transfer Limited DNI Authority to AG Barr

President Trump recently signed a presidential memo that “effectively amends” Executive Order 13526 on classification of national security information to grant Attorney General William Barr the “authority of the Director of National Intelligence to declassify intelligence information concerning the 2016 election.” Steve Aftergood reported the change on his Secrecy News blog, and notes that while the presidential memorandum only applies to AG Barr and not his successors, “the move represents a functional demotion of the Director of National Intelligence and a partial transfer of his authority to the Attorney General.” No explanation was given for the change and it is unclear whether the Information Security Oversight Office (ISOO), which is responsible for the government-wide security classification system, was consulted.

Mar a Lago Intruder Had No Trouble Getting Past Secret Service

An 18-year-old college student staying at a neighboring resort had no trouble getting by the Secret Service and into Mar-a-Lago while the President was staying there for Thanksgiving, according to court documents. The student, Mark Lindblom, was sentenced to a year probation and a $25 fine for “entering or remaining in a restricted building.” The security lapse comes a month after a Chinese national carrying a thumb drive full of malware was allowed to enter the club. The recent security incidents are especially troubling considering revelations made during the National Security Archive’s lawsuit for access to the White House visitor logs – that “There is no system for keeping track of Presidential visitors at Mar-a-Lago.”

Inside Argentina’s Killing Machine: U.S. Intelligence Documents Record Gruesome Human Rights Crimes of 1976-1983

On August 20, 1976, Argentine security personnel dynamited the bodies of thirty people – ten women and twenty men – who had been detained by the Federal Police and executed in the town of Pilar, north of Buenos Aires. The explosion scattered human remains over a wide radius. This gruesome display of repression was intended to send a bloody message to other alleged militants to cease their activities five months after the military coup, according to a CIA intelligence report, one of two dozen extraordinary records posted today by the National Security Archive. But military junta leader General Rafael Videla was “annoyed that the bodies were left so prominently displayed,” sources told the CIA, because it “reflects adversely on the good name of Argentina.” Not that Videla opposed the mass murders, noted the CIA. “Videla is in agreement that subversives should be killed, but [believes] that the entire matter should be dealt with discreetly.”

“These documents provide a riveting account of the Argentine military’s killing machine and its campaign to kidnap, clandestinely detain, torture, kill, and disappear thousands,” said the Archive’s Carlos Osorio. Today’s posting is a small selection from a special “Argentina Declassification Project” authorized by President Barack Obama in connection with the 40th anniversary of the military coup in 2016 and completed by the Trump administration in April 2019. It is incredibly rare to see the CIA cables in particular, the likes of which the agency regularly hides behind its Operational Files exemption. A final, historic transfer of 7,500 CIA, FBI, DOD, NSC, and State Department records to the Argentine government took place on April 12, 2019.

Imminent Threat to Guatemala’s Historical Archive of the National Police (AHPN)

The National Security Archive joins our international and Guatemalan colleagues in calling for the protection of the Historical Archive of the National Police (AHPN) of Guatemala, which faces new threats to its independence and to public access to its holdings. In a press conference on Monday, May 27, Interior Minister Enrique Degenhart signaled his intent to assert his agency’s control of the AHPN including the prospect of new restrictions on access to the archived police records and possible legal action against “foreign institutions” holding digitized copies of the documents. Degenhart made his statements as a crucial deadline approached to renew an agreement that for a decade has kept the archive under the authority of the Ministry of Culture and Sports. The agreement now appears to be in jeopardy.

The hollowing out of the AHPN is taking place at a time when justice and human rights initiatives are broadly under siege in Guatemala and follows months of uncertainty for the celebrated human rights archive, which has been institutionally adrift since its long-time director, Gustavo Meoño Brenner, was abruptly dismissed in August 2018.

Get the whole story here and learn how to take action to support the AHPN.

TBT Pick – The Guatemalan Police Archives

This week’s #TBT pick is a 2005 posting on the discovery of the Guatemalan Police Archives. As the Archive’s Guatemala Documentation Project director Kate Doyle wrote, “On July 5, officials from the Guatemalan government’s human rights office (PDH – Procuraduría de Derechos Humanos) entered a deteriorating, rat-infested munitions depot in downtown Guatemala City to investigate complaints about improperly-stored explosives. During inspection of the site, investigators found a vast collection of documents, stored in five buildings and in an advanced state of decay. The files belonged to the National Police, the central branch of Guatemala’s security forces during the war – an entity so inextricably linked to violent repression, abduction, disappearances, torture and assassination that the country’s 1996 peace accord mandated it be completely disbanded and a new police institution created in its stead.

The scope of this find is staggering – PDH officials estimate that there are 4.5 kilometers – some 75 million pages – of materials. During a visit to the site in early August, I saw file cabinets marked ‘assassinations,’ ‘disappeared’ and ‘homicides,’ as well as folders labeled with the names of internationally-known victims of political murder, such as anthropologist Myrna Mack (killed by security forces in 1990).”

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FOIA Highlights Trouble Integrating Submarine, US Attorney Accused of Sexual Misconduct, and More: FRINFORMSUM 5/23/2019

May 23, 2019

The guided missile submarine USS Florida (SSGN 728) pulls into the Bay of Naples, March 4, 2011. (U.S. Navy photo/Daniel Viramontes)

FOIA Shows Sailors Created “Rape List” That CO Failed to Properly Address

A FOIA request from won the release of a 74-page investigation into a “rape list” created by members of the USS Florida’s Gold Crew – the second submarine to integrate women. The report found “Navy leaders failed to address sailors’ safety concerns after a sexually explicit list targeting female crewmembers surfaced…resulting in the firing of a commanding officer and several other punishments.” The Commanding Officer, Capt. Gregory Kercher, searched the submarine’s network to find the list, but did not open a formal investigation or notify command, allegedly stating there wasn’t cause to open an investigation because “they only had a piece of paper.” Kercher also allegedly told the chief of the boat to “slow down” because he was too involved in the investigation. “When asked about the lists, the report says female crewmembers were full of fear, anger and disgust. Men described feeling horrified, appalled, outraged and less trusting, investigators wrote.”

DOD Restricts Information it Shares with Congress

A May 8 internal memo obtained by the Washington Post shows that acting defense secretary Patrick Shanahan has issued new restrictions on what the Pentagon shares with Congress about military operations, a move that has prompted bipartisan backlash from the House Armed Services Committee. The memo requires military officials and political appointees to evaluate whether the Congressional request “contains sufficient information to demonstrate a relationship to the legislative function” and urges officials to “provide a summary briefing rather than a requested plan or order itself.” It also moves the responsibility of evaluating the legislative merit of a request to the undersecretary of defense for policy – which is usually led by a political appointee; the process was previously done on an ad hoc basis.

Judge Orders Release of Information on US Attorney Accused of Misconduct

BuzzFeed News recently won a FOIA suit seeking to identify a former US attorney – Stephen Wigginton – who “had an affair with a subordinate, according to the one-page release, created a hostile work environment, and potentially violated department sexual harassment rules.” The Justice Department spent two years trying to argue that the release of a DOJ Inspector General report on complaints made against Wigginton would violate his personal privacy, but US District Judge Vernon Broderick disagreed and ordered the report’s release (although much remains redacted). Broderick wrote Wigginton’s privacy would not be violated because “the improper relationship was so open and obvious that it caused employees within the Office to feel powerless, embarrassed, and distracted, and resulted in a work environment that some described as unbearable and hostile.” He went on to note that the affair had an effect on the operations of the office, noting “In addition to work environment issues, the conduct had an impact on the operations of the Office since it resulted in disparate treatment regarding bonuses and disciplinary actions, and led some to avoid the U.S. Attorney and Supervisory AUSA at all costs.”

The Assistant US Attorney who argued the information should remain secret is Arastu Kabeer Chaudhury.

List of 2017 OLC opinions

Four More OLC “Secret Law” Opinions Named

Thanks only to terrific FOIA work by the Project on Government Oversight (POGO), the Justice Department has published the titles of four previously withheld Office of Legal Counsel (OLC) opinions. As POGO’s Daniel Van Schooten notes, “The most surprising part of the newly published opinions is how utterly unworthy of redaction they ever were. For the most part, they simply reiterate prior decisions. Ironically, one of the newly released opinions cites by name a previous OLC opinion the title of which remains redacted on official lists.”

The newly-releasted opinion titles are:

  1. Counsel to the President: Memorandum re “Administration of the John F. Kennedy Centennial Commission” (Newland) dated January 10, 2017
  2. Acting General Counsel/HHS: Memorandum re “The Authority of the Department of Health and Human Services to Pay for Private Counsel to Represent an Employee before Congressional Committees (Colborn, Shaub) dated January 18, 2017
  3. Acting General Counsel/HHS: Memorandum re “Who Qualifies as a “Very Senior” Employee Under 18 U.S.C Section 207(d)(1)(B) (Flynn) January 19, 2017
  4. Counsel to the President: Memorandum re “Appointment of United States Representative (Newland) dated March 13, 2017.

One OLC opinion title continues to be withheld pursuant to FOIA’s Exemption 5, often referred to as the “Withhold it Because you Want to” exemption.

DeVos Used Four Personal Emails for Work

A Department of Education Inspector General Report found that Education Secretary Betsy DeVos used four personal email addresses for government business and that her emails “were not always being properly preserved,” which the IG report noted meant responsive records “were not included in the results of a public records request.” The IG report specified, “In response to one FOIA request for email to and from any private email account controlled by the Secretary, we found that the Department did not identify or produce responsive email that we identified during our review. For another FOIA request, the Department did identify and produce email sent by the Secretary from her private account.” DeVos joins a growing list of high-ranking federal officials who improperly use private email and fail to preserve records.

Always Appeal

The CIA tried to charge our FOIA director Nate Jones for documents even though it failed to reply to Jones in the statutory time frame (the FOIA Improvement Act mandates that if an agency misses its deadline, it may not charge search and review fees for most requesters) and then failed to grant Jones any appeal rights. Jones appealed anyway – because requesters are allowed to appeal any adverse determination despite agencies’ claim to the contrary, and the CIA recanted, releasing the documents free of charge in addition to an office note saying the appeal was “problematic” and that Jones was “complaining about copying fees.” These – improperly charging fees and telling requesters they can’t appeal – are unfortunately common occurrences that many less sophisticated requesters often fall victim too.

George W. Bush Library Kavanaugh Documents

Thanks to Russ Kick for pointing out on Twitter that, in response to his FOIA request, the George W. Bush Library has posted a host of documents on Brett Kavanaugh’s time in the White House Counsel’s Office. The posted documents are emails to Kavanaugh (the library reviewed 103,390 files and posted 49,669 of them), and follows an earlier release of emails sent by Kavanaugh.

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White House Secrecy “Will Blast a Huge Crater in the Work of Historians”: FRINFORMSUM 5/16/2019

May 16, 2019

Archive Joins Diplomatic Historians and CREW in Lawsuit Asking Court Review WH Failure to Document Meetings.

Trump’s Secrecy will “Blast a Huge Crater” in work of Historians if not Checked

The Washington Post Editorial Board weighed in on the National Security Archive’s lawsuit against the Trump administration for failing to document meetings with heads of state, noting “The failure to document these meetings is not only about compliance with the law. Mr. Trump’s secrecy deprives his own advisers of knowledge about what is going on and thus harms their ability to give him good advice. It will blast a huge crater in the work of historians who attempt to piece together what transpired in Mr. Trump’s presidency. It also deprives the American people of a basic method of holding Mr. Trump accountable for his performance.

The Archive, which has obtained and published thousands of “memoranda of conversation” of heads of state meetings dating back to President Eisenhower through the FOIA, together with Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR), filed suit to compel the White House to create and preserve records of the President’s meetings with foreign leaders. News organizations have reported that in multiple meetings with foreign heads of state, the Trump administration has excluded note takers from the conversations.  For example, The New York Times on January 15, 2019 headlined “Trump and Putin Have Met Five Times, What Was Said Is a Mystery.” The Associated Press reported on February 27, 2019, “Trump-Kim go one-on-one: Who will know what was really said?” The suit asks the federal district court for mandamus and declaratory relief to compel the White House to create and preserve records of presidential meetings with foreign leaders, as required by the Presidential Records Act.

Judge Rules DOJ Must Release Names of Companies Cleared from NSL Gag Orders

U.S. District Judge Vince Chhabria ruled this week that the Department of Justice “must unmask the names of companies cleared to disclose details of the FBI’s warrantless demands for customers’ private information.” Chhabria rejected the government’s argument that disclosing the names of companies freed from gag orders accompanied by National Security Letters (NSLs) they’d received would harm national security. The suit was brought by the Electronic Frontier Foundation, which sought the information in a FOIA request.

The ruling comes on the heels of a lawsuit, Barr v. Redacted, challenging the FBI’s authority to issue NSLs without any judicial oversight and under indefinite gag orders. The National Security Archive, along with 15 other media organizations, filed a “friend of the court” brief for this suit, arguing  courts have put time limits on secrecy before, both by ordering the government to justify the continued necessity of a nondisclosure provision on an ongoing basis, and requiring a triennial judicial review for a nondisclosure provision, making Barr v. Redacted’s unlimited time frame an outlier.

The Office of the Director of National Intelligence’s most recent statistical transparency report on the use of FISA orders and national security letters during calendar year 2018 shows that there were 10,235 requests filed for 38,872 subscribers’ information last year, virtually all cloaked in secrecy.

FOIA-Released Records Show Black D.C. Residents Face Drastically Higher Arrest Rates for Minor Violations throughout the City

Great FOIA work by Open the Government and the ACLU of D.C. has won the release of new data that shows the disproportionate rates that black D.C. residents are arrested at for minor violations, which white residents are often not cited for; the discrepancies “are spread across the entire District, and not limited to wards with high crime rates.” The arrest rates were obtained from the D.C. Metropolitan Police Department through a FOIA request. ACLU assessed the data in a report, finding that black residents “accounted for 86 percent of the total arrests over the years examined, even though they make up slightly less than half of the District’s population. The report says that disparity held true across 90 percent of the District’s census tracts, ‘including the whitest parts of the city.’”

D.C. Nixes Controversial Changes to FOIA Bill After Backlash

The D.C. City Council will not pursue proposed changes to the District’s FOIA law after substantial backlash. The changes were allegedly intended to curtail broad requests, but could have made it significantly more difficult to obtain government records – like recently-released emails disclosed thanks to a Washington Post FOIA request showing Council member Jack Evans (D-Ward 2) was seeking employment opportunities at law firms that lobby the Council. The changes were included in a 160-page budget and “limited what people could request to information relating to ‘official acts of public officials and employees’ and called for requestors to ‘describe with particularity’ the information they wanted.” Tom Susman, president of the D.C. Open Government Coalition, warned that that “narrowing the definition of what the government has to disclose after a FOIA request could mean that newsworthy and consequential information would remain hidden from public view.”

Via Adam Goldman/ Washington Post

Declassified CIA Clandestine Service Emails Fret Over “UBL/Devil dolls” Story

The Archive obtained CIA emails through the FOIA that show the Agency appears to have known more than it revealed to Washington Post reporter Adam Goldman and other news outlets about the “UBL devil doll” – a “covert influence operation” that bore a likeness to  Osama bin Laden, except that “paint on the [doll’s eyes] would rub off and create a ‘devil-eye’ effect.” At the time the CIA stated in response to a story by Goldman that, to its knowledge, only three dolls were ever created and the agency declined to pursue to the idea or distribute the figure. A June 16, 2014 CIA “FLASH FYSA [For Your Situational Awareness] email to the Office of the Director of the National Clandestine Service [ODNCS], however, warned of a “Possible Future Washington Post Article regarding CIA Covert Influence Operations.” Nate Jones writes that the email appears to show that the CIA had knowledge beyond what its press release stated, and warned that Goldman “has proof of some kind that 1000 or so of the action figures were made by the company in China;” and that Goldman “knows that the relationship between CIA and Don Levine was beyond the dolls – to include backpacks, bicycle pumps and some girls toys.”

Cyber Brief: U.S.-Japan Agreement

The Archive’s latest Cyber Brief focuses on the U.S.-Japan Security Consultative Committee, which was convened last April for the first time since August 2017. The two governments agreed that a cyberattack could, in certain circumstances, constitute an armed attack for the purposes of Article V of the U.S.-Japan Security Treaty. A decision as to when a cyberattack would constitute an armed attack would be made on a case-by-case basis. To commemorate the meeting, the Archive posted a handful of new documents to its Cyber Library that help contextualize the agreement, including a 2011 U.S.-Australia agreement to a similar extension of the Australia, New Zealand, and U.S. Security Treaty (ANZUS Treaty) to consult and determine appropriate collaborative options to address cyber threats.

TBT Pick: The CIA’s Vietnam Histories

This week’s #TBT pick is a 2009 posting on newly declassified CIA histories that show every aspect of the agency’s involvement in what would become the Vietnam War. The six volumes of formerly secret histories (the Agency’s belated response to a FOIA request by Archive senior fellow John Prados) document CIA activities in South and North Vietnam, Laos, and Cambodia in unprecedented detail. Revelations from the documents include:

  • The CIA and U.S. Embassy engaged in secret diplomatic exchanges with enemy insurgents of the National Liberation Front, at first with the approval of the South Vietnamese government, a channel which collapsed in the face of deliberate obstruction by South Vietnamese officials [Document 2 58-63].
  • As early as 1954 that Saigon leader Ngo Dinh Diem would ultimately fail to gain the support of the South Vietnamese people. Meanwhile the CIA crafted a case officer-source relationship with Diem’s brother Ngo Dinh Nhu as early as 1952, a time when the French were still fighting for Indochina [Document 1, pp. 21-2, 31].
  • CIA raids into North Vietnam took place as late as 1970, and the program authorizing them was not terminated until April 1972, despite obtaining no measurable results [Document 5, pp. 349-372].

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Declassified CIA Clandestine Service Emails Fret Over “UBL/Devil dolls” Story

May 15, 2019

Via Adam Goldman/ Washington Post

A June 16, 2014 CIA “FLASH FYSA [For Your Situational Awareness] email to the Office of the Director of the National Clandestine Service [ODNCS] warned of a “Possible Future Washington Post Article regarding CIA Covert Influence Operations.”

The “covert influence operation” was a doll.  A doll with a likeness of Osama bin Laden, except that “paint on the [doll’s eyes] would rub off and create a ‘devil-eye’ effect.”

Highly redacted emails released to the National Security Archive in response to a Freedom of Information Act request show that the Agency appears to have known more than it revealed to Post reporter Adam Goldman and other news outlets about the “UBL devil doll.” The CIA provided a statement which said:

“The action figure was proposed and rejected by CIA before it got past the prototype state.  To our knowledge, there were only three individual action figures ever created and these were merely to show what a final product might look like.  After being presented with these examples, the CIA declined to pursue this idea and did not produce or distribute any of these action figures.  Furthermore, CIA has no knowledge of these action figures being produced or distributed by others.”

But the FLASH FYSA email does appear to show that the CIA had knowledge beyond what its press release stated.   The author of the flash email warned the Office of the Director of the Clandestine Service that Goldman “has proof of some kind that 1000 or so of the action figures were made by the company in China;” and that Goldman “knows that the relationship between CIA and Don Levine was beyond the dolls – to include backpacks, bicycle pumps and some girls toys.”  Don Levine was the creator of the G.I . Joe doll.  The email also states that Goldman knew “we wanted to leverage his [Don Levine’s] contacts in China” and “the material was shipped through Karachi to Afghanistan.”

“Possible Future Washington Post Article regarding CIA Covert Influence Operations.”

The email reports that Goldman “didn’t mention D/NCS [Director of National Clandestine Service Frank Archibald] in his call, although he made a reference to him in the initial inquiry.”

An earlier email reported that Goldman had pictures of the prototype and even knew the specific container ship that brought the dolls from Yantain to Karachi.

Five full pages of emails are redacted, citing Exemptions One (National Security), Three (the CIA’s statutory exemption),  and Five (the “deliberative process” exemption).  The National Security Archive will appeal the redactions.

Also included in the FOIA release is an email from the CIA’s public affairs office to Director John Brennan and others listing by name reporters Greg Miller, Siobhan Gorman, Eric Schmitt, Nancy Youssef, Aram Roston, Bob Windrem and summarizing the stories they had published.

Goldman was included in this list and the fact that he was working on the “UBL/Devil dolls” story was originally classified as Secret.

FOIA Reporting Shows Spike in Death Rates, Scabies Outbreak, and Lax Records-Keeping in Michigan Prison System: FRINFORMSUM 5/02/2019

May 2, 2019

FOIA Reporting Shows Serious Problems in Michigan Prisons  

Indefatigable FOIA reporting from the Detroit Free Press reveals several alarming trends in Michigan’s state-run prisons – a spike in death rates, reporting misleading statistics to the state legislature, and shoddy records-keeping.

The ratio of deaths in Michigan prison’s is now 348 deaths per 100,000 prisoners, a ratio that has climbed while the state’s overall prison population has shrunk. The rates were highest (and the records shoddiest) at Michigan’s sole women’s prison – which documents show also suffered a scabies outbreak. In one instance, officials at the Women’s Huron Valley facility only created a death record for Toni Cato Riggs after receiving a FOIA request for information on all deaths at the facility; Riggs died in May 2018, but the record was not created until March 2019 – three days after the prison received the FOIA request. The belatedly-created record listed her as “discharged” and gave no information on the cause of death, although a prison spokesperson later said she died from cancer.

Perhaps most alarming is the Michigan Department of Corrections’ 2016 decision to change the definition of a “critical incident,” which includes deaths and assaults and escape attempts, and must be reported on in detail to the state legislature. By changing the definition, the department only felt compelled to report 44 statewide deaths in 2018 – nowhere near the total. “The department, which has been under scrutiny for the quality of both its food and its medical care, had no explanation for the spike in deaths, other than the fact the prison population is getting older.”

Police Misconduct Database

USA Today investigators analyzing FOIA-released records have found that, nationwide, at least 85,000 police officers have been investigated or disciplined for misconduct in the last decade. Some of the infractions include beating citizens, planting evidence, harassing women, dealing drugs, and drunk driving. USA Today affiliates filed public records requests with state agencies, police departments, sheriff offices, and prosecutors’ offices to obtain the records and together they “detail at least 200,000 incidents of alleged misconduct, much of it previously unreported. The records obtained include more than 110,000 internal affairs investigations by hundreds of individual departments and more than 30,000 officers who were decertified by 44 state oversight agencies.”

The records’ release – which USA Today has turned into a searchable database – is remarkable considering the lengths to which police unions have typically gone to keep these kinds of records secret.

Washington Records Center – Shuttered by Mold Outbreak – Hopes to Re-Open in June

The Washington Records Center at Suitland, MD (a gold-mine for researchers – our Nate Jones explains why here) has been closed for months because of an ongoing mold outbreak related to the HVAC system – with no details about when it may re-open. The National Security Archive has learned that the facility, which is occupied by NARA, owned by the General Services Administration, and has gone through several rounds of testing and clean-up but faces ongoing work, hopes to re-open in June.

When Federal Agencies Pay the President

A FOIA lawsuit brought by the nonprofit transparency group, Property of the People, has won the release of records that sheds light on how the Trump Organization interacts with – and benefits from – government officials visiting Mar-a-Lago. An analysis by ProPublica (including this exceptional graphic entitled “Paying the President” that tracks government-spending at Trump-owned properties) argues that “Mar-a-Lago wanted to have the government money without the government rules.” The documents include hundreds of receipts and emails between the Trump Organization and State Department staffers, who sometimes refused to pay the tab and forwarded the bill to the White House. “The emails show that the president’s company refused to agree to what was essentially a bulk-purchase agreement with the federal government, and that it charged the maximum allowable federal rate for hotel rooms. The Trump Organization could be obstinate when it came to rates for, say, function rooms at Mar-a-Lago, a problem that was eased when the president signed a law lifting the maximum ‘micro-purchase’ the government can make.”

Archivist Jeff Richelson’s Final Book is a Must-Have

Michigan’s War Studies Review recently reviewed Jeff Richelson’s, the National Security Archive’s Intelligence Analyst who passed away in 2017, final bookThe U.S. Intelligence Community, Seventh Edition, and concludes that “Jeffrey Richelson’s final book belongs on the bookshelf of anyone interested in the study of intelligence gathering and government surveillance.”

Of the content Jan D. Galla says “Richelson explains in meticulous detail the functions of the multitude of US intelligence agencies, including, besides the CIA, the National Security Agency, the National Reconnaissance Office, the National Geospatial-Intelligence Agency, the little-known National Underwater Reconnaissance Office, the Defense Intelligence Agency, and the intelligence branches of the various armed services and civilian departments of the federal government as well as the organization of various Unified Commands within the armed services.”

The book can be found here.

“The candle is not worth the flame”: NSA Recommends Terminating Contentious Bulk Surveillance Program

The National Security Agency (NSA) has formally recommended terminating its controversial phone and text surveillance program, according to the Wall Street Journal. The program has been frequently criticized for violating Fourth Amendment protections against warrantless search and seizure. The program has also been criticized for its lack of transparency, including most infamously Director of National Intelligence James Clapper’s later-recanted statement in Congressional testimony before Senator Ron Wyden that the NSA did not collect any type of data on Americans. Beyond these criticisms, legal and logistical hurdles in recent years have reportedly encumbered the program. “The candle is not worth the flame,” a senior intelligence official told the Journal.

Section 215, “Access to Records and Other Items under the Foreign Intelligence Surveillance Act,” has been one of the most contentious pieces of legislation to come out of the 9/11 era. As the telephone metadata collection program approaches its final days, the Cyber Vault has pulled together a range of materials that chart its legislative origins and evaluate it from the perspective of effectiveness, legal and privacy concerns, and other considerations.

President John F. Kennedy and Israel Foreign Minister Golda Meir shown here on 27 December 1962.

JFK vs. Israel’s Bomb 1963

Declassified documents published today by the National Security Archive illuminate President John F. Kennedy’s secret preoccupation with the Israeli nuclear program during 1963. Possibly more determined to check nuclear proliferation than any other U.S. president, Kennedy wanted U.S. experts to inspect Israel’s nuclear reactor site at Dimona to ensure that it was not being used for a weapons program. Through secret correspondence with Israeli Prime Minister David Ben-Gurion and his successor Levi Eshkol Kennedy applied unprecedented pressure, informing both prime ministers that the U.S.’s “commitment to and support of Israel “could be “seriously jeopardized” if it could not obtain “reliable information” about the Dimona reactor and Israel’s nuclear intentions.

Today’s posting of declassified documents from the U.S. National Archives system, including presidential libraries, provides a behind-the-scene look at the decision-making and intelligence review process that informed Kennedy’s pressure on Israeli prime ministers during 1963. Among the documents are:

  • National Intelligence Estimate 30-63, “The Arab-Israeli Problem,” from January 1963, which estimated that if the Dimona reactor “operated at its maximum capacity … [it] could produce sufficient plutonium for one or two weapons a year.” This NIE was declassified in 2017.
  • A letter from a U.S. diplomat in Tel Aviv who concluded that the detection of an Israeli decision to initiate a “crash” emergency nuclear program would require “a fairly careful watch on the activities of the dozen or so top scientists.” This document was declassified in 2018.
  • A State Department memorandum supporting bi-annual inspections of the Dimona reactor to monitor the use of nuclear fuel. Without U.S. inspections, Israel could discharge spent fuel at six-month intervals “to produce a maximum of irradiated fuel for separation into weapons grade plutonium.”

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