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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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Fermi, Reagan, and Trump

January 16, 2018

President Reagan’s “nuclear football” on Red Square, 1988.

Enrico Fermi was the first to create a nuclear chain reaction.  He also coined what is now known as Fermi’s Paradox, a question asking, essentially: If, on the grand scale, the probability of intelligent extraterrestrial life developing elsewhere in the universe is so high, why haven’t humans yet been contacted?  One theory, pondered by Fermi and others, was that over the grand scale, all alien civilizations eventually gain enough knowledge to split the atom.  After that, the theory goes, it is an inevitability that on the same grand scale all civilizations eventually destroy themselves through nuclear war.  Hence, despite the high probable likelihood, no verified extraterrestrial contact has occurred.

Those that believe this answer to Fermi’s Paradox may be the correct one must have been startled to read a recent opinion piece in the Washington Post by Marc A. Theissen arguing that President Donald Trump’s provocation of a nuclear power was the act of a “stable genius.”  This dangerous commentary by a mainstream author in mainstream newspaper suggests that our civilization may be approaching this nuclear nadir faster than previously believed.

In his article Theissen claims that Trump is conducting an “intentional campaign designed to get North Korea to understand that Trump, unlike his predecessors, is willing to use force to stop Pyongyang from threatening American cities.”  He then postulates that Trump’s threats of war, combined with strikes on nuclear and missile facilities, or even, gasp, “a second Korean War” could be the best response to North Korea’s current ability to strike the United States with a nuclear weapon.

Theissen also argues that “stable genius” President Trump is simply following the successful strategy of President Reagan who tricked Soviet leaders into believing that he “might just be crazy enough to push the nuclear button constrained Soviet behavior and helped make possible a peaceful end to the Cold War.”

While most sober-minded readers will be able to spot the logical fallacies in Thiessen’s proposed solution – threatening and being willing to fight a war, possibly conventional, possibly nuclear, with North Korea– many may not know that his description of President Reagan’s views on nuclear war and his reaction to the Able Archer 83 War Scare, a realistic nuclear war game which spooked the Soviets to ready their nuclear arsenal to an unprecedented alert, was not accurate.

Reagan was a nuclear abolitionist, abhorred nuclear weapons, and believed nuclear war to be immoral.  While he did continue the Carter administration’s military buildup and contributed to the increased US-Soviet tensions with his rhetoric, he made absolutely clear on the floor of Congress that “A nuclear war cannot be won and must never be fought. The only value in our two nations possessing nuclear weapons is to make sure they will never be used. But then would it not be better to do away with them entirely?”

From President Reagan’s Diary, November 18, 1983.

Likewise, Reagan was chastened by the 1983 War Scare, which included Able Archer 83.  Weeks after Able Archer 83 he wrote in his diary, “[Secretary of State] George Shultz & I had a talk mainly about setting up a little in house group of experts on the Soviet U[nion] to help us in setting up some channels. I feel the Soviets are so defense minded, so paranoid about being attacked that without being in any way soft on them we ought to tell them that no one here has any intention of doing anything like that.”

Reagan reached out to his Soviet counterparts several times during his first term in an effort to reduce nuclear weapons and tensions.  This included sending a letter from his hospital bed after being shot, pleading to Leonid Brezhnev, the leader of the Soviet Union for “meaningful and constructive dialogue which will assist us in fulfilling our joint obligation to find lasting peace.”

During Reagan’s second term, he found a Soviet partner, Mikhail Gorbachev, to make this lasting peace, eliminating an entire category of over 2,600 nuclear missiles, ending the Cold War, and shepherding in the peaceful dissolution of the Soviet Union and totalitarian control of Eastern Europe.

Reagan made this hard bargain because of his desire to minimize the risk of nuclear war, including through miscalculation.  The president knew and feared that nuclear war could occur through misreading an adversary, bad luck, or a  human pressing the wrong button.  In September 1983, after Soviet fighter jets shot down KAL 007, a civilian airliner, because they mistakenly believed it to be a US spy plane, Reagan wrote, “If, as some people speculated the Soviet pilots simply mistook the airliner for a military plane, what kind of imagination did it take to think of a Soviet military man with his finger close to a nuclear push button making an even more tragic mistake?”

Thiessen –and the president— would do well to read Reagan’s own writing on nuclear statesmanship rather than misrepresent history.  In the meantime, the mischaracterizing of President Reagan as a nuclear cheerleader rather than a nuclear abolitionist is another troubling indicator that we may not like the answer to Fermi’s Paradox.

This essay may be reprinted.

The FOIA Office is Not Siberia: FRINFORMSUM 1/11/2018

January 11, 2018

Officials at State Dept. Joke FOIA Office is ‘Siberia’

“The FOIA office was always the punch line of a joke around here, as in: ‘They’ll send me to the FOIA office,’” this, according to State Department officials quoted in a recent Hill article.

The officials also said being sent to the department’s FOIA office “is like being reassigned to ‘Siberia.’”

The remarkable, on-the-record quotes appear in a recent Hill article chronicling the admittedly questionable reassignment of the department’s Population, Refugees and Migration bureau head, Lawrence Bartlett, to the FOIA office – possibly as part of State Secretary Rex Tillerson’s attempt to reduce the FOIA backlog. The unusual move raised eyebrows considering, among other things, Bartlett’s rank and experience.

The specifics of Bartlett’s reassignment aside, the attitude towards the State Department’s FOIA office expressed by these officials is troubling. The State Department’s FOIA office depends on the responsiveness of the bureau offices because, once a FOIA request is received by the FOIA office, it is often tasked out to the appropriate bureau(s) to search for the documents, only after which are the documents returned to the FOIA office for a response to the requester. If this is the department’s attitude towards the FOIA shop, it’s no wonder that requests can stagnate at the State Department for years while the FOIA office waits for a response from bureau offices.

At the State Department, the ethos that “FOIA is everyone’s responsibility” is a critical one to internalize – and the above statements indicate that the State Department, even after the intense focus on the FOIA shop over the lawsuits for Hillary Clinton’s emails, has not learned its lesson.

It is additionally problematic that when news surfaces of agency officials belittling FOIA and FOIA offices, that the Department of Justice’s Office of Information Policy and the Office of Government Information Services, as well as the trade association the American Society of Access Professionals, do not – at least publicly – push back against the disparagement. In the future, they should make a concerted effort to do so.

Defense Officials Seek Unprecedented Control over Historical Reports on Nuclear Weapons Stockpile – With NARA’s OK

The Defense Threat Reduction Agency (DTRA) requested – and the National Archives and Records Administration (NARA) approved – a records disposition plan that allows DTRA to “retain custody of its reports on the U.S. nuclear weapons stockpile for 80 years or more after they were created. Under the disposition plan, the reports will be transferred to NARA in five-year blocs 80 years after the last year of the block.”

The Archive’s Nuclear Vault director, Dr. William Burr, has an excellent post on the ill-advised action here. He argues that the drastic schedule is likely unnecessary considering that today’s nuclear weapons stockpile is “profoundly different” than that of the 1960s, and because the Obama administration declassified aggregate stockpile numbers for the period from 1962 to 2009 in 2010 (the numbers through 1961 were declassified during the Clinton administration). Burr also notes that NARA is more than capable of storing the sensitive files; the agency “already stores and secures records that are probably far more sensitive than the weapons reports.”

Burr succinctly argues that, “To ensure that these reports are preserved for the historical record while also being made available to researchers within a reasonable time period, DTRA should disclaim its original request for 80 years and begin an orderly process to accession the oldest reports to the National Archives.”

This isn’t the only incident of NARA considering inappropriate records schedules proposals – see here and here for more.

508 Compliance Not an Excuse to Remove Docs from Agency Websites

The Environmental Data and Government Initiative and the Sunlight Foundation recently reported that the National Park Service is removing climate action plans from its website because the 92 documents were not compliant with Section 508 of the Rehabilitation Act. An NPS spokesperson said the agency was working to make the documents accessible by the January 18, 2018 deadline, at which point they would be re-posted. (Section 508 has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities and that federal employees with disabilities can access records with the same ease as their counterparts since 1998. I have written about why Section 508 compliance is often a red herring for agencies who don’t want to post records to agency websites here, here, here, here, and here.)

NPS’s intention to make the documents accessible and 508 compliant is the right one, but making the documents inaccessible for everyone while working towards that goal is misguided. A better approach would have been for NPS to keep the documents online while working to make them 508 compliant.

The NPS’s decision comes as the Federal FOIA Advisory Committee approaches its January 16 meeting, where it will vote on, among other issues, the proactive disclosure subcommittee’s recommendations for agencies’ compliance with Section 508. First and foremost, the recommendations “encourage agencies to remediate documents that are not currently 508 compliant—documents that have optical character recognition are also much easier for all individuals to search through and utilize. Nevertheless, we discourage the removal of information from agency websites that is useful to the public, even if the information posted is not fully compliant with Section 508 of the Rehabilitation Act. Agencies should ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.”

The recommendations can be found here.

FOIA Helps Reveal Govt’s Use of Parallel Construction

Human Rights Watch has a must-read report on “a growing body of evidence” suggesting that the government is “deliberately concealing methods used by intelligence or law enforcement agencies to identify or investigate suspects—including methods that may be illegal.” The process is known as parallel construction.  The FOIA documents HRW examined included “historical documents posted in the online FOIA reading room of the Central Intelligence Agency (“CIA”); and trainings and other documents obtained under FOIA by the American Civil Liberties Union, the Electronic Frontier Foundation, and the journalist CJ Ciaramella.” One of the training notices obtained by Ciaramella and highlighted in the HRW report notes:

Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community. If they find Bin Laden’s satellite phone and then pin point his location, they don’t have to go to a court to get permission to put a missile up his nose.

We are bound, however, by different rules.

Our investigations must be transparent. We must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did. No hiding here. However, we are also bound to protect certain pieces of information so as to protect the sources and methods.

To use it…., we must properly protect it.

Legal Fees over Contraception Coverage

A FOIA request from Buzzfeed News has won a series of settlement agreements showing that that the Trump administration “agreed to pay $3 million in legal fees and costs to settle lawsuits filed by the law firm Jones Day against the Obama administration over the Affordable Care Act’s contraception coverage mandate.” Jones Day, a firm with considerable ties to the Trump administration, initially sought $29 million. Buzzfeed notes that “The settlement agreements are part of a larger effort by the Trump administration to undo the contraception mandate and to work with groups that challenged it while Obama was in office.”

TBT Pick – The Yellow Book

This week’s #tbt pick is chosen with the recent Trump administration decision to end the protected status of 200,00 Salvadorians living in the U.S. since 2001 after earthquakes devastated the country in mind. This week’s pick is a 2014 posting on “The Yellow Book,” a 1980s-era document from the archives of El Salvador’s military intelligence that identifies almost two thousand Salvadoran citizens who were considered “delinquent terrorists” by the Armed Forces, among them current President Salvador Sánchez Cerén, a former guerrilla leader. The document was posted on-line, along with related analysis and declassified U.S. documents, through a collaboration between the National Security Archivethe University of Washington Center for Human Rights and the Human Rights Data Analysis Group (HRDAG).

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Defense Officials Seek Unprecedented Control over Historical Reports on Nuclear Weapons Stockpile

January 5, 2018

Last year, the National Archives and Records Administration approved an outrageous request by the Defense Threat Reduction Agency (DTRA).  According to the National Archives Request for Records Disposition Authority, DTRA can retain custody of its reports on the U.S. nuclear weapons stockpile for 80 years or more after they were created. Under the disposition plan, the reports will be transferred to NARA in five-year blocs 80 years after the last year of the block. Thus, stockpile reports created in 1947 will not go to NARA until 2032. The reports created during 1957 will not transferred until 2042, and so on.   This ill-advised action is contrary to the public interest as well as to NARA’s mission and its organizational interests.

The reports, prepared since 1947, contain information on the “the quantity, location, and status of US Nuclear Weapons.”  In its responsibility to maintain the U.S. nuclear weapons stockpile and its reliability (a task shared with the Department of Energy),  DTRA is the successor to a series of agencies. In chronological order, the agencies that led up to DTRA were the Armed Force Special Weapons Project, the Defense Atomic Support Agency, the Defense Nuclear Agency, and the Defense Special Weapons Agency. Also merged into DTRA in the late 1990s was the On-Site Inspection Agency, which had responsibility for verifying arms reduction agreements such as the 1987 INF Treaty.

It is likely that DTRA took the initiative in requesting 80 years (much less likely that NARA would have suggested it), but the 80 years that NARA granted is unwarranted and without precedent. (In recent years, NARA has been considering other inappropriate records schedules proposals – see here and here for more.)  For example, it far exceeds the 50 years given to the CIA to transfer its operational files, which are very likely more sensitive than the weapons inventory.  It is not clear whether the Information Security Oversight Office has given DTRA a declassification exemption for this collection of reports. If it has, DTRA has at least minimal support for its argument for 80 years, but that does not change the overall bad picture.  If, however, DTRA does not have an ISOO file series exemption, 80 years could be in breach of federal regulations.

DTRA may argue that because the reports are so sensitive that they are unlikely to be declassified, even those from the early Cold War.  After all, DTRA might argue, information about the numbers and types of weapons is classified under the category of formerly restricted data (FRD), which concerns military applications of nuclear energy (e.g., yields of weapons, stockpiles, tactics).  Yet, would there really be any risk from declassifying most details about the quantities, types, and locations of U.S. nuclear weapons as of 1947 or 1957?

Worth keeping in mind is that the small weapons stockpile of 1947 (mostly bombs) was profoundly different from the much larger stockpile of 1967 (a wide variety of bombs, artillery shells, missile warheads, anti-submarine weapons, etc.) or the much smaller one of 2017.  Moreover, the locations of weapons have greatly changed.  Today’s locations might be the same as those in 1997, but it would be surprising if they were the same as in 1967 or 1977, for example.  Despite DTRA’s assumptions about sensitivity, changed circumstances should make it possible to declassify the earlier data.

Further undercutting DTRA’s case, the U.S. government has already declassified significant information on the weapons stockpile. In May 2010, the Obama administration declassified aggregate stockpile numbers for the period from 1962 to 2009 (the numbers through 1961 were declassified during the Clinton administration).  The Defense Department subsequently declassified more stockpile numbers for the years from 2010 to 2015. That the numerical total has been declassified strongly suggests the declining sensitivity of information about the weapons stockpile.  Moreover, the Defense Department has declassified information about the overseas locations of nuclear weapons over the years (such as Guam, Hawaii, and Alaska), while declassified histories of SHAPE (Supreme Headquarters Allied Powers Europe)  have included details about NATO countries that were the sites of U.S. nuclear deployments.

If, somehow, DTRA believes that the National Archives is not suited to provide the necessary security to store the nuclear stockpile reports it is mistaken.  NARA already stores and secures records that are probably far more sensitive than the weapons reports.  For years, the National Archives has had custody of sensitive records of the Joint Chiefs of Staff, the armed services, including military intelligence, the restricted data files of the Department of State, and the records of the President’s Foreign Intelligence Advisory Board (PFIAB).  Some of those records necessarily include facts and figures about nuclear weapons stockpiles.  The preservation and protection of sensitive historical records is a routine part of NARA’s day to day operations.

More generally, it is NARA’s statutory responsibility, not that of the agencies such as DTRA, to take care of older records.  What would be the point of having a national archive if it did not hold historical records such as the nuclear stockpile reports?  Moreover, it seems risky to let DTRA keep those records for so many years.  We would not want some future historian to find out that the reports had been mislaid, trashed, or otherwise discarded, as is known to happen from time to time.  To ensure that these reports are preserved for the historical record while also being made available to researchers within a reasonable time period, DTRA should disclaim its original request for 80 years and begin an orderly process to accession the oldest reports to the National Archives.

 

NSArchive’s “Outstanding Academic Title 2017”, FOIA Lawsuit Seeks Info on Travel Ban Enforcement, and More: FRINFORMSUM 1/4/2018

January 4, 2018

Summits Book Wins Choice Award “Outstanding Academic Title 2017”

The journal of the Association of College and Research Libraries, Choice magazine, has picked the National Security Archive’s most recent book, by Svetlana Savranskaya and Thomas Blanton, as an “Outstanding Academic Title 2017.”

The book, The Last Superpower Summits: Gorbachev, Reagan, and Bush: Conversations that Ended the Cold War, was published by Central European University Press in 2017, and excerpted by The New York Times on December 25, 2016.

The Choice citation reads:  “Awarding outstanding works for their excellence in presentation and scholarship, the significance of their contribution to the field, their originality and value as an essential treatment of their subject, and significance in building undergraduate collections.”

The book is the latest in the series of National Security Archive Cold War Readers published by the Central European University Press and edited by Malcolm Byrne.  They include:

FOIA Shows DHS Deemed Travel Ban Implementation a “Crisis”

FOIA-released records documenting the Department of Homeland Security’s response to, and implementation of, the Trump administration’s January 2017 travel ban contradicts the administration’s assertion that the implementation was “a massive success story.” Rather, the DHS records “reflect confusion on the front lines about how to implement the order and show that DHS officials deemed the situation a ‘crisis’ requiring a high-level response.”

The records, released in the course of a FOIA lawsuit, show the department activated its crisis action team (CAT) to deal with confusion at airports and questions and complaints from lawmakers and airlines. Strained DHS officials complained of receiving contradictory guidance from the Trump administration, and “DHS emails show that officials dealing with airlines and airports were told to direct all questions to a single phone number in Washington, D.C., but at least one airline executive said the hotline was unresponsive.”

A DHS Inspector General report on the ban is still being blocked from release, although IG John Roth “told lawmakers that he wanted to release the report to Congress and the public, but DHS officials cited concerns that the review contains information that could invade privileged attorney-client conversations and intrude on executive branch policy deliberations.”

FOIA Seeks Info on DOJ’s Decision to Release Strzok Texts

Citizens for Responsibility and Ethics in Washington (CREW) is filing a FOIA lawsuit against the Justice Department for information on its “decision to share with the press text messages exchanged between two FBI employees, Peter Strzok and Lisa Page, during the 2016 election” without consultation with DOJ’s inspector general. The texts, sent between a Strzok, former investigator on Robert Mueller’s special counsel, and Page, an FBI colleague, disparage Trump (as well as Bernie Sanders and former Attorney General Eric Holder) and became a lightning rod for Mueller critics after the DOJ released them one day before Deputy AG Rod Rosenstein’s December 13 testimony before the House Judiciary Committee.

CREW’s FOIA request seeks DOJ senior leadership communications concerning “how it chose which texts, of the more than 10,000 the department obtained over the summer, to unveil publicly” and “about whether, when, and how to share the text messages with reporters, communications with any member of Congress and/or their staff regarding this matter.”

How Will FOIA Fare in 2018?

The Washington Times has a good article on the ongoing problems with FOIA – and how FOIA requesters should not expect them to reverse course under the Trump administration without a genuine culture change. Focusing particular attention on agencies’ ongoing struggles to deal effectively with their FOIA backlogs (Nate Jones, our FOIA project director says, “It is about the same, which is to say terrible”), growing appeals backlogs, the ongoing enforcement of the Craig memo – which instructs agencies to consult with the White House “before releasing any documents that might involve ‘White House equities’” – without defining what those equities might be in the FOIA realm, and logistical problems faced by even the most well-meaning FOIA offices, the Times argues FOIA in 2018 will not look much different than in 2017.

Trump’s Misunderstanding of Iranian History, Public Discontent

The National Security Archive’s Iran project director, Malcolm Byrne, recently spoke to Think Progress on President Trump’s recent tweets expressing support for Iranian protestors. Byrne, arguing that hopes for an Iranian Spring are “very probably premature,” notes:

“There’s been a long-festering sense of discontent among a lot of Iranians, at least in the capital, about the government — inefficiencies, corruption, and so on.  This latest outburst is obviously significant and part of the reason is the fact that it’s taking place in other cities and towns, away from Tehran.

When it comes to countries where the West disapproves of the regime, outside observers have a tendency to assume the population must be feeling the same way. But that’s usually more a function of projection than detailed analysis — which is hard to get when access is so limited.”

More from Byrne and the Archive’s Iran project can be found here.

California Private Immigrant Detention Centers

California is the first state to apply its open records law to private prisons detaining immigrants. Prior to the January 1, 2018, change private prisons had been exempt from the law, but the Dignity Not Detention Act now requires the CPRA to be applied to private immigrant detention facilities and “also effectively freezes the expansion of for-profit immigration detention facilities in the state.” It is important to note, however, that while the law applies to the California Public Records Act, private immigration detention facilities remain exempt from the FOIA and other state records laws.

President George H.W. Bush announces his Presidential Nuclear Initiatives in a prime-time speech from the Oval Office, September 27, 1991. Credit: National Defense University Press.

TBT Pick – Unilateral U.S. nuclear pullback in 1991 matched by rapid Soviet cuts

This week’s TBT pick, inspired by President Trump’s renewed antagonism of Kim Jong Un and his nuclear button, is a 2016 posting on how a unilateral U.S. nuclear pullback in 1991 was matched by rapid soviet cuts and the “most spontaneous and dramatic reversal” of the arms race. The documents in this posting include the verbatim transcripts of Bush’s September 27, 1991 phone call to Gorbachev giving the Soviet leader a heads-up on the imminent White House announcement, and Gorbachev’s phone call with Bush on October 5 spelling out the dramatic Soviet nuclear pullbacks that matched and in some cases exceeded the American moves.

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Video Won Through FOIA Shows AG Sessions Spar with DOJ Interns Over Marijuana, Gun Control: FRINFORMSUM 12/14/2017

December 14, 2017

Video Won Through FOIA Shows AG Sessions Spar with DOJ Interns Over Marijuana, Gun Control

A video obtained by ABC News through the FOIA shows Attorney General Jeff Sessions taking pointed questions from Justice Department interns during a June 22 department event. While Sessions spent most of his time explaining his policies, the question and answer period found him at times defensive and dismissive. “At one point, he seemed to mock a Justice Department intern for questioning whether marijuana is dangerous. He said cities like Chicago and Baltimore are now plagued with rising crime and murders because they ‘have abandoned traditional police activities.’ And he dismissed another intern’s assertion that many Americans in poor, largely minority communities fear law enforcement officers.” And when an intern challenged Sessions’ stance on tough marijuana laws and lax gun control, Sessions’ argued that “marijuana is not a healthy substance” and referred to the intern who asks the question as “Dr. Whatever Your Name Is.”

FOIA Lawsuit for DOD Sexual Assault Data

The non-profit Protect Our Defenders and Connecticut Veterans Legal Center have filed a FOIA lawsuit against both the Department of Defense and Department of Homeland Security for military sexual assault data. The three requests at the center of the FOIA lawsuit seek:

  • Data on whistleblower protections in the military.
  • Records related to sexual assault and rape cases in military and civilian courts.
  • Data on the “disposition of claims involving sexual assault cases before the Board for Correction of Military Records in each branch, along with performance evaluation and military discipline records related to gender disparities.”

Protect Our Defenders argued that the DOD improperly withheld documents from the three requests and appeals. The Defense Department, citing ongoing litigation, did not comment on the case to Stars and Stripes.

Air Force Special Access Programs

The Air Force’s most recent policy guidance on its “special access programs” (SAPs – classified programs that are believed to require levels of safeguards beyond other categories of classified information) does not recognize the authority of the Information Security Oversight Office (ISOO) to oversee the Air Force’s SAPs, even though the Executive Order on national security classification expressly grants ISOO that access. Steve Aftergood reports that ISOO director, Mark Bradley, says that the lack of recognition is an error and that his office will “communicate the point effectively to the Air Force.”

The guidance also “makes provisions for internal oversight of its SAPs, as well as limited congressional access to SAP information under some circumstances.”

Secretary of State Madeleine Albright meets with North Korean leader Kim Jong Il in Pyongyang in October 2000.

Engaging North Korea II: Evidence from the Clinton Administration

The Clinton administration made plans for war against North Korea during the 1994 nuclear crisis.  While U.S. officials believed they could “undoubtedly win,” however, they also understood “war involves many casualties,” according to documents posted by the National Security Archive.

President Bill Clinton’s negotiators took a tough stance in meetings with North Korean leaders, including warning of “serious, negative consequences” if Pyongyang continued to pursue its “unacceptable” missile program.  At the same time, the administration decided flexibility was critical given the unpredictability of events, including the prospect that a “starving North Korea” might create a “dangerously chaotic situation.”

The posting features declassified cables, background papers, and reports of meetings involving former Defense Secretary William Perry, other senior Americans, and North and South Korean officials.  Together, the documents describe key moments and thinking during the course of the complex negotiations of the 1990s.  Perry and others had hopes the incoming Bush team would carry the effort forward (as Colin Powell indicated they would), but President Bush quickly informed President Kim he would be terminating all talks with the North.

NATO Expansion: What Gorbachev Heard

U.S. Secretary of State James Baker’s famous “not one inch eastward” assurance about NATO expansion in his meeting with Soviet leader Mikhail Gorbachev on February 9, 1990, was part of a cascade of assurances about Soviet security given by Western leaders to Gorbachev and other Soviet officials throughout the process of German unification in 1990 and on into 1991, according to declassified U.S., Soviet, German, British and French documents recently published on the Archive’s website.

The documents show that multiple national leaders were considering and rejecting Central and Eastern European membership in NATO as of early 1990 and through 1991, that discussions of NATO in the context of German unification negotiations in 1990 were not at all narrowly limited to the status of East German territory, and that subsequent Soviet and Russian complaints about being misled about NATO expansion were founded in written contemporaneous memcons and telcons at the highest levels.

The documents reinforce former CIA Director Robert Gates’s criticism of “pressing ahead with expansion of NATO eastward [in the 1990s], when Gorbachev and others were led to believe that wouldn’t happen.” The key phrase, buttressed by the documents, is “led to believe.”

Read the documents here.

The U.S. Has Way Too Many Secrets

National Security Archive director Tom Blanton recently spoke with Bloomberg about “why historians should be extra-grateful for Hillary Clinton’s private server; what really needs to be declassified; and how history is likely to judge Julian Assange, Edward Snowden and Chelsea Manning.” The wide-ranging discussion also includes the recent JFK release, the reality of automatic declassification, and which country has the best Freedom of Information law (hint: it’s not the United States).

TBT Pick – Kennedy Considered Supporting Coup in South Vietnam, August 1963

This week’s #tbt pick is a 2009 posting from the National Security Archive’s Vietnam project showing that, at a critical moment in August 1963, President John F. Kennedy saw only negative choices on Vietnam. Declassified tapes of secret White House meetings on the possibility of U.S. support for a military coup against President Ngo Dinh Diem show that Kennedy believed that if Diem’s brother Ngo Dinh Nhu remained a major influence, the war might not succeed. Read all the documents here.

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The U.S. Has Way Too Many Secrets

December 11, 2017

This article originally appeared in Bloomberg. 

A Q&A with Tom Blanton, director of the National Security Archive, on the historical value of Hillary Clinton’s emails, the sins of Julian Assange, and what national secrets are really worth keeping.

How much does it cost to keep a secret? Well, the U.S. government sort of has an answer: $16.89 billion. That’s how much it spent in 2016 to classify information that it deems too sensitive to be released to the public. Some secrets are worth keeping, of course — like how to cook up chemical weapons, for instance. But others, less so. Rodney McDaniel, a top National Security Council official during the administration of President Ronald Reagan, estimated that only 10 percent of classification was for the “legitimate protection of secrets.” Former New Jersey Governor Tom Kean, a head of the 9/11 commission, said that “three quarters of what I read that was classified should not have been.” In fact, he argued that overclassification had left the U.S. more vulnerable to the 9/11 attacks. And that’s to say nothing of its everyday effects on government accountability and efficiency, congressional oversight and public awareness.

Shortly after the government released a trove of documents on the assassination of John F. Kennedy, I sat down with Tom Blanton, the director of the National Security Archive, to talk about America’s dysfunctional mechanisms for classifying and declassifying information. Here, in an edited transcript, he weighs in on why historians should be extra-grateful for Hillary Clinton’s private server; what really needs to be declassified; and how history is likely to judge Julian Assange, Edward Snowden and Chelsea Manning.

James Gibney: Tom, let’s start with the new Kennedy documents: Was there anything that changed the historical narrative in your mind?

Tom Blanton: I don’t think the JFK release changed the historical narrative, partly because the U.S. is still withholding so much of it — stupidly. To me, the most striking thing about what did get released was why it was withheld from 1998 until now. It should have come out back when the JFK Assassination Records Review Board was doing its work. So much of the information was already available in other documents. When another several thousand documents come out in April, even with redactions, people are going to ask why it was held up. There’s this incredible level of absurdity in the classification system. We can show example after example where all it takes is one “securocrat” to override the better judgement of whole institutions.

JG: If we were to do Declass 101, isn’t it the case that most material is supposed to get declassified within set periods of time?

TB: It actually doesn’t work that way. The classified universe is so enormous, that basically classified records are going to stay secret unless somebody asks for them. Thanks to the National Declassification Center, there’s now a good process for pressuring the system from the outside. We’ve done it, other historians have done it. Ever since the Cold War, so much of the declassification effort has focused on the low-hanging fruit, to get numbers up. People have avoided tackling the hardest documents, like the secretary of defense’s files. His agency sits on top of most of the intelligence community, nuclear weapons, our deployments overseas. For historians, and for anybody looking for government accountability, you want the SecDef files. Yet that’s a really hard declassification target. We’ve argued for years that they should start at the top, because once you work through that body of records, all the derivative stuff just falls into place.

JG: So, there’s no magical process by which those things that should be declassified by a certain time frame because of laws on the books actually do get declassified.

TB: Yeah, there are no magic wands. Steven Garfinkel, who used to run the Information Security Oversight Office, the government’s internal watchdog on classification, once described coming into a Sensitive Compartmented Information Facility, or SCIF, that was wall-to-wall with boxes dating back to the 1920s, ’30s, ’40s, ’50s. He took about an hour and sampled stuff and then waved a wand and said, “let it go.” Few people within the government are willing to take that level of responsibility. But with the tsunami of electronic records that’s coming, the idiocy of this page-by-page, line-by-line review is a total failure. The backlog is enormous, and it’s only growing.

JG: And as you’ve noted, a lot of the email traffic isn’t even being logged and stored.

TB: Part of that was a deliberate government decision back in the 1990s. We brought the original lawsuit to force Presidents Reagan, George H.W. Bush and Bill Clinton to save White House email. We won. But when we tried to expand that principle to the rest of the government during the 1990s, the so-called decade of openness, the government fought tooth and nail. We only found out because of the Hillary Clinton email business that no secretary of state has systematically saved their email, until John Kerry did.

JG: Isn’t it true that as a result of Clinton’s private server, we have a lot more of her emails than we would otherwise have had?

TB: Yes, much more than if she’d stuck with state.gov.

JG: I know from my own experience as a speechwriter on the National Security Council that we were told, more often than not, if there was anything sensitive, don’t put it in an email. Just pick up the phone, or have a conversation. People were scared to death of subpoenas. How concerned

White House E-Mail: The Top-Secret Computer Messages the Reagan/Bush White House Tried to Destroy

are you that there’s a lot of stuff for which there’s going to be no written record?

TB: There’s a huge debate over this among historians. Michael Beschloss, among others, has argued that we ought to encourage presidents to tape every conversation and give them a guarantee that nobody will ever look at it for 20 or 30 years, because he so regrets that after Richard Nixon, no president is taping their stuff. Tony Lake, when he was National Security Advisor, had me in one day to sign copies of our book “White House E-Mail“, which came out of our lawsuit. I thought it was a nice gesture by a former board member. I said to him, “Tony, it’s so great you’re really standing up for openness in the federal government.” He said, “Oh no, I’m giving copies of your book to my people so they never ever write emails like these.” He told me that because of the threat of subpoenas and congressional pressure, he went in to brief the president with just an index card.

But as his deputy Nancy Soderberg — who’s now on our board — pointed out in the same conversation, after every meeting, there’s a vast electronic tasking process. So by the end of the day, there are probably hundreds and hundreds of email messages and taskings that are a record of those conversations. The net effect is that there’s a much wider electronic record of almost every decision the government takes today than there was in, say, the telephone era.

JG: So, you don’t think this is the problem it’s made out to be.

TB: You can’t run government or any major organization without writing stuff down. You can’t run a military command that way. Some of the most useful documentations that we get loose are coming from the military, because they have to write up their lessons learned at the end of their tours. They have a center at Fort Leavenworth on lessons learned, and those documents are huge, they’re really key for any of us to grasp what really happened in the Iraq War, what happened in the surge in Iraq, what mistakes the U.S. made, for example.

JG: Don’t you think, though, that at least among political operatives, partisan polarization is going to make this threat worse? That officials are now so worried about fishing expeditions by the opposing side that they’re not going to record the sensitive stuff?

TB: If anything, the technology is pushing in the opposite direction. Our real issue as historians is going to be sorting through a practically infinite body of evidence. We’re going to have to use algorithms to do it.

JG: I wanted to return to some of the issues raised by the Kennedy assassination records release. It loomed so large in the American psyche. At the same time there are a lot of other events in world affairs where we’re still waiting for the smoke to clear to get some sense of what happened. What’s on your declassification wish list in that regard?

TB: The wish list that we talk about involves large record groups rather than specific mysteries. We try to drive a systematic approach by the declassification authorities. The CIA, for instance, has put its internal clandestine service histories off limits. They now call them operational files. But they’re actually histories. We still have a lot to learn about past clandestine operations. Some of it has come out in the State Department’s Foreign Relations of the U.S. series, but only a small fraction. The CIA has actually done a pretty serious job of examining its covert ops and compiling lessons learned. But since most of it is so highly classified, a lot of people in the agency itself aren’t even aware of that history. And they’re not taking advantage of the back-and-forth they could be having with outside scholars and analysts.

I mentioned earlier the secretary of defense’s files. Same with the secretary of state’s files. Or the files from the department’s Bureau of Intelligence and Research. It’s unique. Their analysts aren’t beholden to any one source, they’re all-source, and they’re dedicated to informing the secretary and high-level diplomats. Their products on the Vietnam War are absolutely the most astute that anybody in the U.S. government wrote, we now know.

JG: Have they declassified the secretary of state’s Morning Summary, the daily all-source intelligence digest that INR produces?

TB: Not in any systematic way. One of the bodies of records that we’re going after now, because relations with Russia are so in the news, is who said what to whom in the 1990s on things like NATO expansion. Strobe Talbott was one of the most vigorous and active writers.

JG: He was indeed.

TB: He’d write “night notes” to Secretary of State Warren Christopher or Bill Clinton, and then get up at 3 or 4 in the morning to produce policy memos. It’s an amazing record. He was the interlocutor for just about every high-level, in-person meeting involving Russia. But those records aren’t accessible yet. And they should be, because of this long-standing Russian sense of grievance about NATO.

JG: I bet you a box of doughnuts that Strobe has all those at home.

TB: Exactly, but with no classification stamps on them. There are bodies of records like those — including records of briefings to presidents by national security advisors at the presidential libraries — that deserve a huge priority. I went down to Bush 41’s library at Texas A&M for the first time in 1998 with a copy of Mikhail Gorbachev’s transcript of his talks with Bush at the Malta Summit and filed a Freedom of Information Act request for the American version. It took 10 years to get it declassified.

We try to bring that kind of cross-pressure to bear. Helmut Kohl, for instance, published all his documents on German unification, including personal letters from Jim Baker and George H.W. Bush. He never asked them. He just published them. So we used those as an opening wedge. Bodies of records like that need prioritization with the limited resources that the U.S. government has for declassification.

JG: You must have encountered requests from other countries to help resolve certain things based on documents you’ve already unearthed.

General Suharto in the days after the September 30th Movement

TB: Absolutely. One of the first delegations was a bunch of Hungarian dissidents who visited our archive in 1989. We had documents — CIA and State Department reports, for instance — on the Hungarian revolution in 1956. For these people it was like filling in the blank spots in their memories. I ended up in Hungary about three years later helping them write a freedom of information law. That dynamic continues today in 40 to 50 countries. We just did a big release in which we helped the National Archives digitize documents from the U.S. Embassy in Indonesia dating back to that country’s genocide years, 1965-66. It made a huge splash in Indonesia. It gives granular detail from U.S. consulates in Aceh and elsewhere on the Indonesian military’s killings of leftists. Indonesia still hasn’t really faced up to that.

JG: Have there been instances where you’ve teamed up with like-minded organizations in other countries to bring collective heat on one area or issue that you think really needs attention?

From Solidarity to Martial Law: The Polish Crisis of 1980-1981: a Documentary History

TB: Sure, we teamed up with Polish dissidents to figure out what happened during martial law. Why did the Soviets not invade? Why did the Poles refuse to do martial law in 1980 under President Jimmy Carter, and then do it under Reagan? Andrzej Paczkowski of the Polish Academy of Sciences dug out the Polish Politburo files, because they’re open, and the Polish secret police files, because they’re also open. We did some big events with them where we brought together the then-head of the Warsaw Pact with the head of Solidarity and even former prime minister Wojciech Jaruzelski, because he wanted his voice on the record. This helped drive a declassification process in Moscow, in Warsaw, in some of the other Warsaw Pact countries, and it helped us to go back to the CIA and get messages from Ryszard Kuklinski, a high-level U.S. spy, declassified. That’s the kind of thing the CIA would have never done otherwise.

Right now, under the radar, the U.S. is declassifying files from Argentina’s Dirty War in the late 1970s — something that started under Barack Obama and that President Mauricio Macri recently asked Donald Trump to continue.

JG: Did that actually come up in their talks?

TB: Yes, we played a small role, suggesting to the Argentine embassy here that they put that on Macri’s talking points, and we let the career people here know. In Argentina, more than 100 trials are ongoing against various members of military units for “disappearing” people. It’s invigorating Argentina’s own justice system.

JG: Are there any places or issues where you’ve received requests for help from other countries but gotten no traction with the U.S. government?

TB: Most of these requests aren’t easy. Look at what happened with the Chilean dictator Augusto Pinochet. We were filing freedom of information requests on that from our earliest days in 1985 and mostly getting shafted. But then the 1988-89 Chilean transition to democracy took place. Under Clinton, it became U.S. policy to open up some of this stuff. When Pinochet was arrested in London in 1998 we got another big chunk. But not until October 2015 did the State Department hand over the internal documents that Secretary of State George Shultz had used with Reagan in October 1987 to convince him to stop saying nice things about Pinochet — including evidence that Pinochet had personally ordered the assassination of Orlando Letelier in Washington. It’s been a bit at a time. The secrecy system is not a rational one. It only responds to pressure.

JG: In some of your writings, you talk about how the post-Cold War period ushered in greater openness that led to the passage of laws in numerous countries to promote disclosure and transparency.

TB: There are now about 115 countries with some legal provision giving citizens right of access to government documents.

JG: So, who’s doing it right, if you’re thinking about best practices or role models?

TB: The best freedom of information law, one that’s having a huge impact in a country that’s a running disaster, is in Mexico. It’s far superior to our law, because it has a human rights override. You can claim national security as a reason not to declassify something, but if it’s about the actual torture or disappearance of somebody, that exemption is not available. You can claim it’s an ongoing law enforcement operation, but if it’s a crime against humanity or a massive human rights abuse, the attorney general is compelled to turn documents over.

JG: And yet… Ayotzinapa, the still-unsolved disappearance of 43 students in 2014. You got this great law, but you still have this terrible situation.

TB: That is an incredible situation, but Mexico’s system also has a tribunal that can override even a cabinet official. This independent body has overruled the attorney general, including in the Ayotzinapa case. It forced him to release files which then supported the conclusion of an international panel of jurists that there was a cover-up. That’s not enough to turn a corrupt system around. But it’s an interesting lesson for us.

JG: What about the Interagency Security Classification Appeals Panel, or Iscap, in the U.S. system? Doesn’t that work?

TB: It rules for requesters about 75 percent of the time, which tells you how bankrupt most classification is. But that body is so small and only handles a few hundred cases a year. It has not had that broader teaching effect on the rest of the system. There’s still just a reflexive, “Okay, stamp it.”

JG: Switching tracks a bit, has WikiLeaks made your job easier or harder? Are they competition or a complement?

TB: They’ve made it harder because they’ve made the government so much more paranoid, and more likely to protect stuff that doesn’t need to be protected. One of the lessons from the 257,000 diplomatic cables WikiLeaks threw up on the wall with ultimately almost no redactions — well, I asked Michael Posner, who was the assistant secretary for democracy and human rights, about what real diplomatic damage they caused. He wouldn’t tell me until his retirement party, when he said that part of the cost was that the U.S. was forced to withdraw some of its ambassadors. But the real cost was the time that was spent reacting to them, including the time it took to warn and protect some sources. That kept diplomats from doing other, more constructive work that they should have been doing.

I’ve had a lot of big arguments on the WikiLeaks front. They’re still covered by the First Amendment, even though I really disagree with Julian Assange’s notion that he and only he should have the power to throw things up on the wall.

There’s also his denial of the idea that there are real secrets. Any common-sense person would recognize that there are real secrets, pieces of information that you want the government to hold close. You don’t want the banditos to know how to build a binary chemical warhead. Bingo. That’s a real secret. You don’t want to release anything that’s going to get anybody killed. You shouldn’t release our government’s bottom line in a negotiation before the negotiation. I think that’s a relatively small fraction of the classified universe, maybe no more than 10 to 30 percent. And even those secrets only need to be protected for a certain period of time.

I had this argument at Texas A&M recently when I defended Edward Snowden. I said that unlike Chelsea Manning, who just dumped what she got, including documents that exposed Afghan villagers to potential death, Snowden worked with a core group of journalists who pledged to screen and vet documents. He didn’t just throw stuff against the wall, and he didn’t just give it to WikiLeaks . By my count, the intelligence community has now declassified more pages of Snowden-related surveillance documents than Snowden’s media partners have published. As national security officials such as James Clapper and Chris Inglis have admitted, they made a huge mistake in keeping that stuff secret. It just reduced U.S. credibility. The jury is still out on what Snowden did. Some of what he has released could still end up killing somebody. And if that happens, the balance changes. But right now the Snowden leaks are very much on the side of reforming the surveillance system and telling people — not least Congress — more about what’s going on.

JG: So what are the two or three things that would make the declassification ecosystem work better? You’ve talked about some of the shortcomings. What is it you want that you don’t have to make this system work better?

TB: I would love to have more high-level focused mass declassification efforts, like the JFK Assassination Records Board. Congress hasn’t stood up many more. They created one on Nazi and Japanese war crimes that had a huge impact by opening up clandestine files about the Nazis we brought to the U.S. and protected. They beat down the intelligence community. Our board warned us at the outset to stay away from assassinations and UFO’s. Too many people wearing tinfoil hats, not to mention plenty of hobbyists and independent scholars working those issues. They don’t need us doing that. They need us focusing on things like nuclear targeting, where it can take 10 years to get things declassified and have immense global significance. But because the JFK records board took an expansive view of its role, they broke open all sorts of records about Cuba that were essential for historians, for Obama to make his Cuba policy change.

JG: But any such new panels would have to have focal points. Where do you want them to focus?

TB: I would love to have a panel like that going after the CIA’s clandestine histories. The National Declassification Center is not going to pick a fight with the CIA to go after those. But they are key to demystifying CIA operations. That may be why they resist doing that. You get close enough to these covert operations and you often see what absolute disasters they were.

I’d love to see Congress stand up a powerful Iscap or a more powerful Public Interest Declassification Board. Why weren’t all the supposedly classified Hillary emails sent to Iscap, so an interagency body looked at them, instead of one securocrat making the decision that they’re classified? We need more third-party levers. If you move the decision out of the cold dead hands of the originating agency, and into an independent body with some leverage, wonders may never cease.