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President’s Daily Briefs Still in the Closet

September 30, 2020
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The other day I was working on a posting about John F. Kennedy’s decisions on the Vietnam war, and I had occasion to include one of the “President’s Daily Briefs” (PDBs), the super top secret personal reports the CIA and other intelligence agencies assemble every day for our senior executive. You may recall that in September 2015, when the CIA began to release this series of documents, they made a big splash of it, complete with a conference at the Lyndon Baines Johnson Library. The text of the PDB I selected for my subject was nearly complete, missing just two critical attributions for statements. Now, I had surveyed a number of the PDBs at the time of the release, arguing in a piece on my website, and here in UNREDACTED, that actual declassification of the PDBs had not been accomplished and was indeed in its infancy because crucial content in the reports was being routinely censored for spurious reasons. As a test, I took the PDB I selected and looked up that date in the relevant volume of the series Foreign Relations of the United States. There, in an editor’s note, were the very attributions that had been slashed out of the PDB. That volume of FRUS was published in 1991.

Two points. First, classified material selected to be included in the Foreign Relations series undergoes full review prior to its release, so in in its highly-touted 2015 re-release, the CIA was re-classifying material that had been in the public domain—in fact in print—for nearly a quarter of a century. Second, the CIA was taking another bite of the apple. Public spokespersons for a variety of Washington entities have been fond lately of claiming raising questions about anything amounts to re-litigating. Here CIA does that on a routine basis.

The Tet Declassified project inexplicably posts documents that have been previously released with far fewer redactions, such as this November 14, 1967 PDB.

My earlier complaint had been that CIA was taking credit for declassification work it had hardly done. Take, for example, the PDB of November 14, 1967, declassified on June 28, 2018—now half a century. Of its thirteen pages only a smattering—two—were released. All of it was on Vietnam. Every other subject was supposedly secret. This kind of tunnel vision is very common. Look at the PDBs from the 1967 Six Day War in the Middle East. In the five days from June 5 through June 9, the Middle East text is almost the only substance opened. That had been opened in 1993. In 2015, leaving the PDB in that state ought to have raised questions.

I thought it might be useful to take a fresh look at the PDBs from the perspective of these kinds of shenanigans. We have a basis for comparison because, before the PDBs were re-framed as being so secret, they were regularly subjects of declassification action. At least seventeen were in the public domain before the agency made its series releases. Ten of them the National Security Archive featured in an Electronic Briefing Book in 2004, when Dr. Larry Berman was suing for PDB release under the Freedom of Information Act. I took documents we had in hand and compared them with the series-release versions from 2015 and later. The results are uneven. The most common result is no difference between then and later. For example, the June 8, 1967 PDB was “declassified” in 1985, 1993, and 2015. The text is the same. The April 1, 1968 PDB? That was declassified in 1989 and 2015. The same. May 29, 1967? That was declassified in 2004 and in 2015 without change. Agency censors took credit for work done long ago, to which they added nothing.

February 15, 1962 President’s Intelligence Checklist (“PICL”)

Worse are the cases where work actually was done. Let’s start with the February 15, 1962 President’s Intelligence Checklist (as the PDB was known until 1964). It was declassified in January 1990 and again in July 2015. The censors gutted this document in 1990. An initial section on incidents in the air corridors to West Berlin was all cut. In 2015, when this text was restored, it was revealed to have been about several U.S. and French government and private aircraft that had been threatened, though not attacked. The rules for keeping things secret specify that information can be redacted if its release poses a demonstrable threat to the national security of the United States. By 1990 the Berlin Wall had fallen, East and West Germany were on the path to reunification, West Germany was negotiating a Soviet withdrawal from the East, and the whole Cold War had begun winding down. That details of aerial incidents in the foggy past of 1962 threatened national security in 1990 is plain silly. The reverse is also true. The PICKL (also abbreviated as PICL) that day had an item on Laos that recorded political maneuvering between Prime Minister Souvanna Phouma and military strongman Phoumi Nosavan, then a U.S. favorite. The 1990 version of the PICKL contained the full item. It was a routine iteration of some of the stunts common in Laos—Phoumi wanted to block Souvanna’s visit to the king. The 2015 the entire text regarding Phoumi is censored. How its release would damage the national security after 25 years already in public is the puzzle. Classification operates in a bizarre fashion.

There are further examples but its better to move on. The August 7, 1965 PDB (by then it was the PDB) was declassified in July 1993 and again on September 10, 2015. In the PDB one item reported the loss of a couple of Taiwanese patrol boats in the Formosa Straits, and that one of them had radioed of sinking several targets. In the 2015 redaction the part about the patrol boats sinking targets was cut. What was the national security damage there? That PDB also contained an item on the Dominican Republic that mentioned rebel extremists were attempting to recruit youths from the countryside. Censors in 2015 clipped out that whole text. National security damage? I’ll venture none.

The November 5, 1966 PDB declassified in 1992.

And the same PDB declassified again in 2015.

Here’s the PDB for November 5, 1966, which was declassified under a request filed at the Lyndon B. Johnson Library in 1992, and again on July 24, 1915. The 1992 release reported that communist China had carried out a 4th nuclear test, which apparently took Russia by surprise (the discussion of which the censors deleted). In 2015 the censors cut the entire item. The PRC nuclear test was a matter of public record since geologists routinely monitor for seismic shocks and radiological effects of nuclear blasts. That did not prevent the cut. The PDB also reported on German politics, where the chancellor was stepping down. In 1992 about ¾ of a line was cut, but in 2015 the cut expanded to six lines, including the part where CIA recorded who the chancellor favored as his successor. Damage to U.S. security? Nil.

The biggest howler? The same PDB had a pretty long item, most of a page in the original, about the British defense budget. This was a much-discussed subject in the 1960s—the British military position “East of Suez.” Whole books were written about it, along with journal articles, scholarly papers, think tank publications, talks at conferences, and more. A run on the pound sterling and on British gold was in the open, even being manipulated in U.S. foreign policy. Here the PDB speculates that before the British could finalize their budget they might have to have another “Great Debate” on the issue of Europe versus the Far East. The CIA credited U.S. and Australian political pressures as keeping the British engaged, and implied London had come to the end of its rope by saying it might “have to present the US with a basic decision on the issue.” In 2015 this entire passage was regarded as so sensitive it was made secret when the PDB was released. The markings (censors are supposed to note the reason something is secret) indicate foreign government information.

That may be, but something isn’t secret just because an Englishman told it to me. It had to be actually secret. That the British needed to have a debate? No secret there. That American and Australian encouragement kept British shoulders to the wheel? That was a bit of political analysis anyone could add. That the British would have to come to a decision and inform Washington? A conclusion that follows the postulates. Again, anyone could have come to it. You tell me what was the damage to U.S. national security.

Big declassification projects like the one for the PDBs soak up money, as well as the experts who work on declassification. When the projects spin wheels by not doing any new declassification they are wasting money and staff work. When they spend money to reclassify material that has already been released, especially on silly or spurious grounds, they go beyond waste. There are thousands of these PDBs, and so far only the ones for Presidents Kennedy through Ford are accessible. The CIA has long displayed a predilection for re-litigating secrecy and it’s doing that again here. Every single one of these (mostly) daily reports is going to have to be individually evaluated for classified information under the present system. Then there will be the appeals—another round. Then the re-request when the first attempt is denied. And so on. It’s time to change the system. Bulk declassification is the only possible solution.

The United States government is drowning in secret documents that cost money to protect. Funds for declassifying government records are limited. Every round of secrecy review costs money—and the daily protection of the secrets costs more. In the past few years, along with cuts in the budget for the National Archives and Records Administration, the overall situation has become quite worrisome. When a big thing like the PDB project merely opens up the document for more requests it is actually generating even more costs. The original secrets still have to be protected. Every reclassified piece of information adds to the price-tag. Space must be found for the gerrymandered copies of the documents. Money will have to be found for the re-reviews that may, someday, open up full documents. To repeat, bulk declassification is the solution.

Six Years On, Ayotzinapa Investigations Advance

September 29, 2020

Secretary of the Interior Olga Sánchez Cordero, President Andres Manuel López Obrador,
Undersecretary of Human Rights Alejandro Encinas Rodríguez, and María Martinez Zeferino,
mother of a disappeared student, display cloths embroidered by mothers of the 43.

National Security Archive Partners with Reveal from The Center for Investigative Reporting on FOIA Litigation

by Megan DeTura

As Mexico marks the sixth anniversary of the tragic disappearance of 43 teacher trainees from the Ayotzinapa School, the National Security Archive announces a new collaboration with reporters and lawyers at Reveal from The Center for Investigative Reporting to bring legal action against agencies of the US Government for their refusal to release information about the case.

The Mexican government shared the latest advances in its investigation into the notorious 2014 crime during a news conference held on Saturday, September 26, before families of the disappeared students. From the National Palace in Mexico City and via livestream, President Andres Manuel López Obrador joined members of Mexican Attorney General’s office, the Undersecretary for Human Rights Alejandro Encinas, and a representative of the International Group of Independent Experts (GIEI) in reconfirming their commitment to providing answers and accountability to the families of the 43.

Special Prosecutor Omar Gómez Trejo at the Sixth Anniversary news conference.

Essential aspects of what happened in the town of Iguala, Guerrero, on the night of September 26 and into the early morning of September 27, 2014 remain a mystery, including the students’ ultimate fate and current whereabouts. Yet through the efforts of the Commission for Truth and Justice and the Special Prosecutor’s unit dedicated to the Ayotzinapa case, the Lopez Obrador government has made headway toward uncovering new facts about the violent attacks six years ago.

Building on the most recent break in the investigation – the identification of the remains of a second student, Christian Alfonso Rodríguez Telumbre, announced in July – Saturday’s news conference shed more light onto the Peña Nieto government’s intentional mishandling of the case. The office of Special Prosecutor Omar Gómez Trejo has detained 80 individuals for their involvement in the case, including members of the Guerreros Unidos drug cartel and federal, state, and municipal police officers. And for the first time, Gómez announced arrest warrants for military personnel who, together with the police, are believed to be the “material and intellectual authors” of the disappearances.

The Attorney General’s team has also identified high-level officials implicated in the crime and cover-up, issuing arrest warrants for Tomas Zerón, former head of Mexico’s Criminal Investigation Agency (AIC), and some of his top aides. In July, a leaked video showed Zerón’s participation in the torture of a detainee, and recent financial probes have alleged Zerón’s involvement in the theft of millions of pesos to orchestrate the concealing and fabrication of evidence in the Ayotzinapa case. Zerón is currently believed to be in Israel and the Mexican Government has issued a formal request for his extradition.

Family members of the 43 disappeared students at the Sixth Anniversary news conference.

Recent progress in the Ayotzinapa investigation stands in contrast to the previous government’s gross mishandling of the case. And critical to that progress is the new information investigators have been able to obtain from a variety of sources. According to Alejandro Encinas, the Secretary of National Defense, Secretary of the Navy, and Mexico’s Financial Intelligence Unit – among other institutions and individual informants – have provided unprecedented cooperation and fresh evidence in the case.

If Mexican agencies have begun to provide critically needed information for the investigation, US agencies have not been so forthcoming. Instead, six years after the violent attacks, the United States Government has yet to release a single document of significance regarding the Ayotzinapa case, including pivotal records concerning the Guerreros Unidos cartel—the same gang implicated in the disappearances.

Beginning in 2015, the National Security Archive has sent a total of 140 Freedom of Information Act requests to eleven federal agencies. These requests cover the full scope of the crime and its aftermath, including the attacks, the botched “investigation” that followed, the cover-up, key institutions and individuals, and ongoing developments, with the most recent requests sent in September 2020. Of the 140, only six have resulted in the release of documents—records that have all been either heavily redacted or, in multiple occasions, nothing more than assorted news media articles.

Neither the CIA nor the FBI has released one document, electing instead to fully withhold all records and, in some instances, even refusing to confirm or deny the existence of documents in their possession. The Defense Intelligence Agency has dragged its feet in processing our requests: 13 are pending, some of them years after they were received. And despite its issuing of estimated dates of completion – a seeming lifeline for requests that will hopefully be processed by 2022 – the State Department still has yet to process one of our requests, including those whose estimated dates have come and gone.

Undersecretary of Human Rights Alejandro Encinas addresses the audience gathered at the National Palace.

In response to the government’s flagrant refusal to release information in the Ayotzinapa case, the National Security Archive has partnered with Reveal from The Center for Investigative Reporting to initiate legal action. We seek to challenge the government’s stonewalling and to expedite the processing of our long-delayed requests.

“Reveal from The Center for Investigative Reporting is pleased to be working on this litigation with the National Security Archive,” said it’s general counsel D. Victoria Baranetsky. “These publicly acknowledged records are an important part of history.”

As María Martínez Zeferino, mother of one of the disappeared students, reminded President López Obrador and investigators on Saturday, much more remains to be done to resolve the Ayotzinapa case. Speaking on behalf of the parents of the 43, Martínez stated, “You promised that you would help us to find our sons…we are glad to see that you are more human than those who came before you, but we ask that you push a little more. We wanted to arrive today on the 26th with something more. Understand us. Six years on and we still have nothing.”

Six years on, the National Security Archive continues to call for transparency in the Ayotzinapa case—not only from Mexico, but from the US as well. Together with Reveal, we heed the words of Ms. Martínez as we push a little more, and we ask that the United States government do the same.

Watch the news conference here: A seis años de la desaparición de 43 normalistas de Ayotzinapa

 

Declassification at the Pentagon II: More Silly Secrecy

August 31, 2020

A recent declassification decision by the Department of Defense illustrates the agency’s chronic inability to make wise decisions when reviewing classified historical records. In this decision, Pentagon reviewers denied almost the entirety of a Joint Chiefs of Staff memorandum from 1969 that had already been declassified for years. The same document was released in full in 2009 by the Interagency Security Classification Appeals Panel (ISCAP). Unbeknownst to me until recently, the same document that ISCAP had declassified was also in a file at the National Archives for which I requested declassification review in 2011. The file of documents concerned SEAGA (Selective Exercise of Air and Ground Alert), a Strategic Air Command nuclear alert program. In 2015, the National Archives informed me that the Defense Department had denied one of the SEAGA documents in its entirety, which turned out to be the one that ISCAP had declassified.

The DoDs recent release, nearly entirely redacted.

Not knowing what the document was but aware of its subject matter, I appealed the denial in 2015 and a few weeks ago the National Archives informed me that the Defense Department had approved partial release. The copy the Archives sent me was massively excised. When I saw it, I realized that it was the document that ISCAP had declassified in 2009. According to NARA’s letter, the Defense Department had ruled that release of the denied information would harm U.S. diplomatic relations and would also “reveal formally named or numbered U.S. military war plans that remain in effect.” Of course, that is irrelevant because as sensitive as this document was during the Cold War, ISCAP has decided over ten years ago that its release would not cause any harm to U.S. national security.

ISCAP’s 2009 release, entirely unredacted.

The document that ISCAP had fully released concerns the Selective Exercise of Air and Ground Alert, which was a program to raise alert levels of B-52 bombers in a defense emergency. Strategic Air Command and Pentagon planners created SEAGA after a B-52 bomber crashed in January 1968 on Greenland; its nuclear bombs were destroyed and spilled radioactive debris on the ice near Thule Air Base. The bomber had been on airborne alert, which had put nuclear-armed B-52s in the air twenty-four hours a day. With airborne alert terminated, SAC planners wanted contingency plans to raise air and ground alert levels for B-52s in crisis conditions.

If war broke out, the bombers could proceed to strike one of the target sets, probably urban-industrial, in the Single Integrated Operational Plan (SIOP), the U.S. nuclear war plan. In the event that the U.S. decided to activate SEAGA, the plans envisaged nuclear-armed flights over Canadian territory, which required Ottawa’s consent. The U.S. already had an agreement with Canada allowing nuclear overflights, but it would expire at the end of June 1969 and had to be renewed. It is the information on Canada that Defense Department officials believe would somehow harm U.S. relations with that country.

When I made the request for SEAGA documents, I was interested the role that SEAGA had played in a secret nuclear alert ordered by President Nixon in early October 1969 on which I was co-writing a book with Jeffrey Kimball. Following top-level orders for actions that would be “discernible to the Soviets but should not be threatening, the Pentagon implemented what was officially known as the Joint Chiefs of Staff Readiness Test. Accordingly, as one of a number of aerial, ground, and naval actions that U.S forces secretly took during October 1969, the Defense Department instructed the Strategic Air Command to implement GIANT LANCE, the SEAGA “Show of Force” option. For the first time since the Thule accident, nuclear-armed B-52s would be in the air, in this instance over northern Alaska. Lasting several days in late October 1969, the GIANT LANCE flights were one of the last steps of the secret readiness test. While Nixon hoped that this exercise of the “Madman Theory” would make the Soviets more amenable to helping with the Vietnam negotiations, that was not to be.

In 2015, when I appealed the denial, I suspected that the denied document was about SEAGA. To make my case that the document could be released without harm to national security, my appeal included a number of previously declassified documents on the subject; ironically, one of them was the very item that ISCAP had declassified in 2009. That, however, made absolutely no difference for the handling of the appeal. It’s difficult to know what happened: perhaps the Pentagon decision to keep the JCS memorandum largely classified was more or less a knee-jerk reaction and the ISCAP declassification was not even noticed. Perhaps the Pentagon reviewers believe that the ISCAP decision was mistaken or improper, but their attempt to reclassify is futile. As White House Chief of Staff H.R Haldeman said back in the days of Watergate, “once the toothpaste is out of the tube, it’s very tough to get it back in.”

This pointless decision demonstrates why the Defense Department needs to change the way that it uses its declassification authority. The Department needs competent reviewers whose first instinct is not to preserve secrecy and who can tell the difference between historical information that should be declassified and information that is still sensitive, and who are aware of what has already been declassified. The Pentagon needs centralized quality control to prevent poor decisions by Defense Department or Joint Staff reviewers from going forward. Moreover, when classified Defense Department records are held at the National Archives, that agency should have a substantive role in the declassification process. NARA reviewers could provide necessary quality control if they had the authority to stop a bad decision from going forward and to require a better outcome. Such a change would probably require an amendment to the executive order on classified information policy or, even better, a change in the law.

This incident is a perfect example of why ISCAP declassification decisions ought to have a far weightier impact than they do. Each ISCAP decision should provide the ground rules or parameters for future declassification decisions on a given topic. When it makes a decision, ISCAP should notify the agencies that basic information on topic X, e.g., SEAGA, is no longer classified. Agencies would be required to observe the decisions. While putting ISCAP in the role of a precedent setter has been discussed for years, it has become more and more necessary. To make that possible would also require a change in the executive order.

New Film Uses Archive Documents to Help Re-Examine Mosaddeq’s Overthrow, and More: FRINFORMSUM 8/21/2020

August 21, 2020

COUP 53: New Documentary on Overthrow of Iran’s Mosaddeq

COUP 53, a new documentary that includes declassified documents obtained by the National Security Archive to help re-examine the overthrow of Mohammad Mosaddeq in 1953, opens for virtual release today. One of the revelations included in the film is that Britain’s Secret Intelligence Service – MI6 – took part in the 1953 kidnapping of the chief of police of Tehran, Iran. Norman Darbyshire, who helped plan the overthrow of Mohammad Mosaddeq on August 19, 1953, made the disclosure about the kidnapping in an interview for the Granada Television series End of Empire that aired in 1985. But Darbyshire’s account never made it into the series and disappeared for more than three decades until it was obtained – from Mosaddeq’s grandson – by COUP 53 director Taghi Amirani. (The transcript is available in its entirety on the Archive’s website.)

Read more about the documentary, and the documents behind it, here.

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FOIA Shows Secret Service Wanted Tactical Aircraft to Monitor DC Protests

Secret Service documents obtained by American Oversight through the FOIA show that the agency sought tactical aircraft – complete with “fast rope” commando teams – to protect the White House during protests demanding accountability for the murder of George Floyd. The Secret Service requested the aircraft in a June 5 letter to Customs and Border Protection after protestors knocked down barricades surrounding the White House in late May. The letter was sent by the Secret Service’s Office of Protective Operations’ assistant director, Kimberly Cheatle, who said that the CBP’s Air and Marine Operations division’s “participation in the operational security plan is vital.” The Service ultimately determined that a plane was not necessary, but CBP did provide live information from a surveillance plane “so the Secret Service could track protesters’ movements near the White House and around the city.”

Judge Says White House Can’t Cite Executive Privilege to Hide Ukraine Docs

United States District Judge of the United States District Court for the District of Columbia, Amy Berman Jackson, ruled last week that the White House can’t cite executive privilege to hide 21 messages between White House aide Robert Blair and Office of Management and Budget official Michael Duffey concerning the halting of aid to Ukraine from a FOIA lawsuit. The New York Times filed the suit for the records last November, and in May Judge Jackson ordered the documents turned over to the court for an en camera review. After her review, Judge Jackson told government lawyers that their claims were “overly general” and that the declaration “appears to be based largely on Mr. Blair’s job title, the location of his office and what assistants to the president in general ‘often’ do. … That simply doesn’t cut it.”

FBI Apologizes for Tweeting Anti-Semitic Doc Without Context

The FBI is apologizing for tweeting a “virulently anti-Semitic” document from its FOIA Records Vault without contextualizing the release. The document in question is the 1903 Russian propaganda text, “The Protocols of the Learned Elders of Zion,” which claimed that Jewish citizens were attempting to take over Czarist Russia; the document was cited by Hitler and has been promoted by the KKK, among other white supremacist organizations. The document was requested through the FOIA and was released in its entirety, “along with reports from the FBI classifying the book as false. Included [in the FOIA release] is a 1964 report from the Senate Judiciary Committee, in which they call the text ‘fabricated’ and ‘crude and vicious nonsense.’ There are also several letters to former FBI director J. Edgar Hoover noting a troubling resurgence of the text.”

The Bureau is required under the FOIA to release the information, but was taken to task for not providing any context when it tweeted the text; the tweet garnered more than 16,000 retweets (considerably more than most @FBIRecordsVault tweets) and comments, many of which contained anti-Semitic hate speech. The FBI apologized, saying that the Twitter feed is automated, and later deleted the Tweet.

US Paid Afghans $2,000,000 in Condolence Payments 

Recently-released Pentagon data shows that the United States paid Afghan civilians over $2 million between 2015 and 2018 in condolence offerings – money paid to the families of civilians killed as a result of US military actions. The spreadsheet, which was obtained by the Washington Post and also includes “Hero” payments to the families of Afghan security forces who died, shows that the payments peaked in 2016, and vary widely – from $131 to $40,000. While the data provides little information beyond the total dollar amount, the Post’s Missy Ryan notes that this release, combined with 2019 data released earlier this year, “provides new insights as the Pentagon develops its first-ever military-wide policy on preventing and responding to civilian casualties, an initiative that began in 2018 amid scrutiny over a massive discrepancy between estimated death tolls recorded by the U.S. military and outside groups.”

Declassification at the Pentagon: The Good, the Bad, and the Ugly

In *another* example of a dysfunctional classification regime, the Joint Staff recently redacted much of a document that has been available in the FRUS since 1996. The Archive’s Dr. William Burr’s latest blog “demonstrates that over-classification and silly secrecy are alive and well in certain quarters of the Pentagon.” The document in question was a draft memorandum from Secretary of Defense McNamara to President Kennedy on “Recommended Long Range Nuclear Delivery Forces, 1963-1967” dated 23 September 1961. Burr notes, “According to the marking on the many pages that are denied in their entirety, the Joint Staff made the implausible decision to use exemption 5 in Executive Order 13526 -war plans still in effect- to justify the extensive deletions.” Burr argues that more needs to be done to improve declassification at the Pentagon, which has failed to improve despite Congressional mandates to streamline its declassification procedures and reduce FOIA and MDR backlogs. One option is to take declassification decisions regarding historic documents out of the hands of intransigent agencies, and give the National Archives and Records Administration the authority to declassify records 40 years or older.

Declassification at the Pentagon: The Good, the Bad, and the Ugly

August 13, 2020

A recent declassification decision at the Department of Defense, in response to a mandatory declassification review appeal by the National Security Archive, demonstrates that over-classification and silly secrecy are alive and well in certain quarters of the Pentagon. Recently, in response to an appeal to the National Archives and Records Administration (NARA) filed in 2013 by the National Security Archive for documents from the files of Secretary of Defense Robert McNamara, NARA released two documents that had previously been denied in their entirety. One of them, processed by Joint Staff reviewers, was massively excised although most of the document’s contents was published decades ago in the State Department’s Foreign Relations of the United States series.  The other, which Air Force reviewers had processed, was released in full as it should have been.  Both documents had overlapping contents and the discrepant treatment reveals much about the way that declassification reviews can go badly or well at the Pentagon.  

“Recommended Long Range Nuclear Delivery Forces, 1963-1967″ – page 1

“Recommended Long Range Nuclear Delivery Forces, 1963-1967″ – page 4, almost entirely redacted.

The massively excised document was a draft memorandum from Secretary of Defense McNamara to President Kennedy on “Recommended Long Range Nuclear Delivery Forces, 1963-1967.” dated 23 September 1961.  This was the beginning of the series of draft presidential memoranda (DPMs) on a variety of defense policy issues that McNamara would prepare during his tenure in office. The version released by the Pentagon had most of the text withheld. According to the marking on the many pages that are denied in their entirety, the Joint Staff made the implausible decision to use exemption 5 in Executive Order 13526 -war plans still in effect- to justify the extensive deletions. In addition, Defense Department reviewers used the Atomic Energy Act to withhold some “formerly restricted data”.

The fuller version of the text is available in the FRUS.

As noted, the McNamara DPM has been declassified for years in various releases, including publication in the Foreign Relations of the United States [FRUS] in 1996. Readers can see for themselves what the Joint Staff’s reviewers chose to withhold: almost all of the written text, including “Target Destruction Requirements,” “Relationship of Recommended Force to Soviet Forces,” and “Basis for Recommendations on Specific Weapon System Choice”, as well as various tables of targets, “percent expected kill,” etc.

The purpose of the DPM was to delineate and justify the force level of ICBMs, SLBMs, and strategic bombers that McNamara believed were enough to retaliate against a Soviet attack and thereby “deny the Soviet Union the prospect of either a military victory or of knocking out the U.S. retaliatory force.” Even if the Soviets struck first, according to McNamara, the U.S., with its higher strategic force levels, would still retain “military superiority.”  Such force levels would be “designed to avoid the extremes of a ‘minimum deterrence’ posture on the one hand, or a ‘full first strike capability’’ on the other.  Minimum deterrence could destroy Soviet cities but would not provide enough forces to destroy Soviet nuclear threat targets, while a first strike capability would be “infeasible”, unlikely to knock out all Soviet ICBMs. and unduly provocative.

Following the DPM’s discussion of the strategic rationale was an analysis of target or “aim point” priorities, 200 urban-industrial systems and 150 bomber bases, which would be most threatening to the U.S.  Other priority targets included nuclear storage sites, defense suppression, and intermediate-range ballistic missile bases threatening NATO allies.  As for the prospective Soviet ICBM force during 1965-67, its size and its basing (e.g., possibility of protected or “hardened” sites) were matters of “considerable uncertainty.”  Also uncertain was “the performance of our forces in striking back after a Soviet attack—uncertainties associated with the weight and effectiveness of possible Soviet attacks, the ability of our forces to survive under attack, the reliability of our missiles, and the ability of our forces to penetrate Soviet defenses.” 

Some of the information withheld from the FRUS release was declassified in a release of the DPM sometime in the 1980s or 1990s. For example, one of the passages in the DPM noted that the calculations of fatalities and material destruction did not include theater nuclear forces “though SIOP ’62 includes about 270 alert aircraft and missiles from these forces.  On the other hand, with the exception of the defense suppression targets, no targets in China or the other satellites were included.” The Defense Department did not “now expect China to develop a significant long range nuclear delivery force in the time period under consideration.”  The references to 270 and China were not included in the FRUS version. That same release included much of Appendix I, “Assumed Operational Factors for 1965 and 1967 Target Damage Calculations.”

Much more could be said about the DPM; plainly it was highly sensitive at the time it was created and for years thereafter. Nevertheless, that most of text could be published in the FRUS and released in another version indicates that as of 1996 or so, security reviewers in the government believed that the DPM had lost most of its sensitivity and was substantially eligible for declassification.  Nevertheless, the Joint Staff thought otherwise. And even though the document is in the collections at the National Archives, it does not have the authority to overrule bad decisions such as this one.

This is not the first time that this writer has raised questions about the flawed declassification work of the Joint Staff.1 The military officers who have responsibility there are on temporary assignments and the default mode has been to keep information classified, lest a “wrong” decision interfere with the reviewer’s career path.  For JS reviewers, declassifying a sixty-year old document could be a threat to national security if it includes any discussion of targets and strategy, even if the document had been substantially released years earlier.  Even if the document is in the possession of the National Archives, as in this case, NARA’s declassification staff is powerless to reject or modify an unreasonable decision by JS reviewers. 

The Air Force memorandum released in this case was declassified in its entirety by that agency’s reviewers. It consists of a memorandum from Secretary of the Air Force Eugene Zuckert to Secretary of Defense McNamara with a memorandum attached by Air Force Chief of Staff Curtis LeMay; both commented on the substance of McNamara’s DPM from September 1961.  Yet  Zuckert and LeMay expressed disagreements with McNamara, arguing for the value of a “credible first strike option,” even though a U.S. pre-emption attack on the Soviet Union could have led to “severe” or “substantial” damage to the United States.  Zuckert and LeMay expressed other disagreements; for example, LeMay urged that Soviet command and control facilities be included among the priority targets. Failure to target them could have a “seriously adverse impact upon our ability to reduce damage to the U.S. and its allies.”  

That is exactly the kind of information that the Joint Staff reviewers exempted from McNamara’s DPM. Plainly, the Air Force reviewers did not find it necessary to make the laughable claim that U.S. war plans still in effect should prevent declassification of this nearly 60 year-old document.   Although the Air Force has had a bad reputation for its handling of declassification requests for records at the National Archives, in this case its reviewers did a good job.2

The Joint Staff could learn much from the example provided by Air Force reviewers, if it chose to.  That, however, cannot be counted on.   Major reforms at the Department of Defense are essential.  The U.S. Congress is becoming aware of the problem and in last year’s budget authorization, Congress tasked the Department to produce a plan to improve declassification, especially in reducing backlogs.  That has not yet been done, with the Pentagon informing Congress that the pandemic will delay work on a plan until the end of 2020. Whatever the Defense Department has in mind, it ought to centralize declassification review to ensure that the work is of the highest quality and credibility. The Joint Staff declassification unit should not go on as it has, without additional quality control and more effective supervision. And to reduce backlogs and to put declassification on a more credible basis, the Defense Department should cede to the National Archives authority over declassification review of its documents that are, say, over 40 or 50 years old.  Without such changes, declassification review at the Joint Staff and other offices at the Defense Department will stay on their present bad course.


1.  See William Burr, “Trapped in the Archives, Foreign Affairs https://www.foreignaffairs.com/articles/2019-11-29/trapped-archives, 29 November 2019.

2. Nicholson Baker, Basesless: My Search for Secrets in the Ruins of the Freedom of Information Act (new York, Penguin Press, 2020), at page 5, citing National Archives official David Fort that the Air Force is the “worst” in responding to declassification requests.

GSA Hides Trump Transition Meeting Notes with FOIA’s Ex. 5, New DHS Guidance Expands Surveillance of Social Justice Protesters, and More: FRINFORMSUM 7/30/2020

July 30, 2020

Trump Administration Redacts Transition Meeting Notes

Thanks to the 2015 Presidential Transitions Improvement Act amendments to the 1963 Presidential Transition Act, each presidential administration must “establish a White House coordinating committee and council of agency transition directors six months prior to the election.” The council, which deliberates on what preparations the administration is making for a potential transition, met on May 27 – and the FOIA sleuths at Government Executive requested the meeting minutes from both the General Services Administration and the Office of Management and Budget.

GSA released one document – almost entirely redacted pursuant to FOIA’s widely-abused Exemption 5, often called the “withhold it because you want to” exemption. This discretionary exemption protects agencies’ “deliberative process” privileges, a wide carve-out that allows agencies to withhold “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public.

The Paulette Goddard Professor of Public Service at New York University, Paul Light, said, “If there’s anything that needs to be redacted that’s a sign that there’s something that shouldn’t be going on. This should be an open and fully transparent process.” Government Executive is appealing the “partial” denial.

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Former CIA Director Brennan Denied Official Records

In a sharp break from tradition, the CIA denied former director John Brennan access to his official records, “including his notes and any documents that he had reviewed and signed that were classified,” which he sought to compile his memoir. Brennan – a frequent Trump critic – reveals in his memoir, “Undaunted: My Fight Against America’s Enemies, at Home and Abroad” – currently slated to be published in October – that in August 2018, President Trump issued a directive allegedly forbidding anyone in the intelligence community from sharing classified information with him (that same month, Trump threatened to revoke Brennan’s security clearance, something that Brennan said never came to pass because there was no legal basis).

Mark Zaid, a lawyer who frequently represents government whistleblowers and former intelligence officials navigating the murky prepublication review process, called the move “unprecedented”.

In January 2020 Brennan wrote to current CIA director Gina Haspel, arguing that “It is impossible to avoid the conclusion that the Agency’s refusal to grant my request reflects the current administration’s desire to punish and retaliate against me for speaking out as a private citizen — an abuse of power designed to chill the exercise of my First Amendment rights”. Haspel has not responded to the letter.

New DHS Guidance Expands Surveillance of Social Justice Protesters

New, unclassified Department of Homeland Security guidance reported by Lawfare authorizes DHS employees to collect information on protesters who threaten to damage statues or memorials, regardless of whether they are on federal property. The undated guidance comes as protesters are targeting and removing Confederate statues across the country. The expansion to include non-federal property is a significant expansion of Executive Order 12333, “United States Intelligence Activities,” which has traditionally been used to protect landmarks from potential terrorist attacks. The three-page memo, from the Office of Intelligence and Analysis, is entitled “Job Aid: DHS Office of Intelligence & Analysis (I&A) Activities in Furtherance of Protecting American Monuments, Memorials, Statues, and Combatting Recent Criminal Violence.”

Paul Rosenzweig, senior fellow at the R Street Institute and former DHS official during the W. Bush administration, told the Washington Post that the guidance is “a complete misapplication of existing authorities” and that President Trump “is morphing DHS into his private little rogue, secret army.”

Argentina’s House of Horrors: CIA Document Leads Human Rights Investigators to Previously Unidentified Clandestine Torture Center

Forty-four years after the Argentine military began disappearing thousands of citizens following the March 24, 1976, coup, human rights investigators have located one of the first clandestine torture sites used by state intelligence operatives. The clandestine center was identified after the declassification of thousands of U.S. intelligence records last year, among them a secret CIA report on the disappearance of an Argentine diplomat which stated that he had been kidnapped by agents of the State Intelligence Secretariat (SIDE) and “taken to a house at Bacabay (sic) 3570 in the Federal Capital which SIDE rents and uses for official operations….”

The National Security Archive first called attention to the CIA document, entitled “Kidnapping and Assassination of Argentine Ambassador to Venezuela by a Group Associated with Argentine State Intelligence Secretariat (SIDE) Without SIDE Knowledge or Authorization,” by posting it on the day it was declassified, April 12, 2019. The Archive recently re-posted the formerly secret CIA cable, along with a State Department report on U.S. citizen Mercedes Naveiro Bender, who was kidnapped in May 1976 and held at the Bacacay house, according to a new investigative report by federal Judge Daniel Rafecas.

“Without the declassification of this document perhaps we would never have been able to identify this clandestine center,” said Albertina Caron, an assistant to Judge Rafecas. The discovery of the Bacacay facility, she noted, has vindicated victims who had described the house of horrors in testimony over the years. “For dozens of survivors,” Caron said, locating the place where they were tortured after more than four decades “has provided a catharsis.”

Since the discovery of the Bacacay house, human rights advocates have stepped up pressure on Argentina’s new president, Alberto Fernandez, to order the declassification of all remaining Argentine intelligence records from the period of dictatorship.

The U.S. Nuclear Presence in Western Europe, 1954-1962

Recent debates over U.S. nuclear weapons in Western Europe make it worth looking at how those forces got there in the first place. In the 1950s, when fear of Soviet military power was at its height, NATO allies like West Germany and Italy were remarkably compliant to U.S. wishes regarding the storage of nuclear armaments on their soil – and ultimately their potential use in a European war – according to newly released State Department and Defense Department records posted by the Archive. The governments in Bonn and Rome made no objections when Washington came calling and did not even pose questions about when or how the weapons might be used.

Other governments, notably France, did raise concerns but sometimes very different ones. In one important new document reporting on a sensitive North Atlantic Council meeting from October 1960, the Greeks wondered whether the Americans would consult with their allies before resorting to nuclear war, while the French, who wanted their own force de frappe, told the group their worry was Washington might not use their weapons at all in a crisis.

The posting provides a significant window into the delicate issues surrounding the creation and management of the nuclear stockpile in Europe.  Much about this topic is still classified. Along with allied perspectives, the documents describe inter-agency disputes between State and Defense over issues such as whether to grant certain allies’ custody over the weapons.

New Digital National Security Archive Collection Publishes Thousands of Declassified Nixon and Ford President’s Daily Briefs

The National Security Archive, with our partners at the scholarly publisher ProQuest, has published a new collection of declassified President’s Daily Briefs (PDBs) from the Nixon and Ford administrations. The collection, The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977, offers researchers an unparalleled look into daily intelligence briefings provided to the White House by the CIA from 1969 to 1977.

The new comprehensive 28,300-page collection adds 2,527 documents to the Digital National Security Archive’s ongoing procurement of PDBs, which are Top Secret documents containing the most current and significant intelligence information that the CIA believes that the President needs to know. The PDBs are so sensitive that CIA Director George Tenet once claimed they could never be released for publication “no matter how old or historically significant it may be,” and former White House Press Secretary Ari Fleischer described the document as “the most highly sensitized classified document in the government.”

The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977 compliments the substantial collection of Archive documents from the Nixon-Ford era. Previous DNSA collections on the Nixon-Ford presidencies include “The Kissinger Transcripts: A verbatim Record of U.S. Diplomacy, 1969-1976, “The Kissinger Telephone Conversations: A verbatim Record of U.S. Diplomacy, 1969-1977”, and  The Kissinger Conversations, Supplement: A Verbatim Record of U.S. Diplomacy, 1969-1977.

 

New Digital National Security Archive Collection Publishes Thousands of Declassified Nixon and Ford President’s Daily Briefs

July 27, 2020

By Claire Harvey 

The National Security Archive, with our partners at the scholarly publisher ProQuest, is publishing a new collection of declassified President’s Daily Briefs (PDBs) from the Nixon and Ford administrations. The collection, The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977, offers researchers an unparalleled look into daily intelligence briefings provided to the White House by the CIA from 1969 to 1977.

The new comprehensive 28,300-page collection adds 2,527 documents to the Digital National Security Archive’s ongoing procurement of PDBs, which are Top Secret documents containing the most current and significant intelligence information that the CIA believes that the President needs to know. The PDBs are so sensitive that CIA Director George Tenet once claimed they could never be released for publication “no matter how old or historically significant it may be,” and former White House Press Secretary Ari Fleischer described the document as “the most highly sensitized classified document in the government.”

PDBs highlighted in this collection provide insight into the development of U.S. policy in response to major world events, security threats, and geopolitical conflicts of the Nixon-Ford era, many of which continue to influence global politics half a century later. The vast array of topics covered by the newly-declassified documents includes:

  • the prosecution of the Vietnam war, evolution of the Paris Peace talks, U.S. withdrawal, and the fall of Saigon;
  • the Laotian civil war;
  • the Cambodian civil war;
  • leadership changes in the Soviet Union and China;
  • détente and arms control negotiations, such as the Strategic Arms Limitation Talks;
  • Richard Nixon’s visit to China;
  • Soviet military aid to the Middle East and Africa;
  • the 1973 Arab-Israeli War and Middle East peace negotiations;
  • the Jordan crisis;
  • the Lebanon civil war;
  • the escalation of international terrorism;
  • the Cyprus crisis and aftermath;
  • elections, coups, and civil unrest in Latin America, including the Chilean coup d’état;
  • the Carnation Revolution in Portugal and its impact on decolonization of Africa;
  • the Sino-Soviet dispute;
  • the Bangladesh revolution and the India-Pakistan war;
  • independence movements in Angola, Rhodesia, and Zimbabwe;
  • and the space race.

The dynamic collection showcases how the intelligence community fulfilled its most critical task– keeping the President informed. President Nixon, however, may have never even read the briefings included in this collection. His de facto intelligence advisor Henry Kissinger prepared a memorandum that was appended to the PDB each day, offering the President a summary of events Kissinger thought were of the most importance.

The documents in this collection were released by the Nixon Library in Yorba Linda, California in 2016, but only after years of litigation with the CIA. In 2004, the Archive joined then- University of California, Davis professor Larry Berman in a suit against the CIA after the agency denied the release of two PDBs written for President Lyndon B. Johnson in the 1960s. Although the ruling did not result in the release of the records, the Ninth Circuit Court of Appeals shot down the CIA’s argument that the PDB should be categorically exempt from FOIA. Without a blanket exemption, the PDBs from the Nixon and Ford eras had to be considered for release. Despite this impetus of disclosure, the CIA took nearly 8 years to make the PDBs available to researchers and whole documents, passages, and pages remain heavily redacted.

The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977 compliments the substantial collection of Archive documents from the Nixon-Ford era. Previous DNSA collections on the Nixon-Ford presidencies include “The Kissinger Transcripts: A verbatim Record of U.S. Diplomacy, 1969-1976, “The Kissinger Telephone Conversations: A verbatim Record of U.S. Diplomacy, 1969-1977”, and  The Kissinger Conversations, Supplement: A Verbatim Record of U.S. Diplomacy, 1969-1977.

Check out this new DNSA collection, or arrange for a free trial through your library today.

Judge Grants DOJ Extension in FOIA Suit for Mueller Report, FOIA Wins Release of COVID Data, ICE Gets “Security Agency” Designation, and More: FRINFORMSUM 7/16/2020

July 16, 2020

Judge Grants DOJ Extension in Mueller Report FOIA Case

Federal Judge Reggie B. Walton is granting the Department of Justice a one-week extension to provide answers justifying redactions it made to the Mueller Report in connection with a FOIA lawsuit brought by the Electronic Privacy Information Center, BuzzFeed News, and BuzzFeed News reporter Jason Leopold. Judge Walton, who has read the unredacted report and been critical of Attorney General Barr’s handling of its contents, said “These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that ‘all of the information redacted from the version of the Report released by the Attorney General’ is protected from disclosure by its claimed FOIA exemptions.”

A hearing on the redactions is currently scheduled for August 17 at 10 AM.

Appeals Court Rules Administrative Burden Not Enough to Keep Surveillance Court Records Sealed

Jason Leopold and the Reporters Committee for the Freedom of the Press scored a legal victory earlier this month in their quest to access judicial court records on the government’s use of surveillance tools frequently used in criminal investigations. Leopold has fought to unseal Stored Communication Act (SCA) warrants and pen register/trap-and-trace orders since 2013, but in 2018, District of Columbia District Court Judge Beryl Howell ruled that the administrative burden of releasing the entire body of surveillance records was too great, and ordered the government to release only a small sample of the records.

Leopold and RCFP appealed, and this month the U.S. Court of Appeals for the District of Columbia overturned part of the lower court ruling. Judge Merrick Garland authored the ruling, arguing that “Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all”. Judge Garland also notes, “The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse. Production may be time-consuming, but time-consuming is not the same thing as impossible.”

FOIA-Released COVID Data Underscores Pandemic’s Racial Disparity

Black and Latinx Americans have been hit significantly harder by the COVID-19 pandemic than white Americans, this according to newly-released FOIA data. The Centers for Disease Control and Prevention data, which covers 1.5 million case records through May 2020, was won by the New York Times in a FOIA lawsuit and shows that these minority communities have an infection rate three times higher than their white neighbors. But the data, which is the most complete look yet at racial disparities of the pandemic, is far from complete – the Times notes “Not only is race and ethnicity information missing from more than half the cases, but so are other epidemiologically important clues — such as how the person might have become infected.”

ICE Designated a Security Agency

In a blow to transparency, the Trump administration has designated Immigration and Customs Enforcement a “Security Agency”. The security classification grants ICE employees the same status as intelligence agency officials and officials at keystone law enforcement agencies like the FBI and Secret Service. The designation, which applies to all ICE employees, “blocks from disclosure information that is typically public, such as name, job title, and salary.” The classification, which ICE argued for years was needed to protect its employees’ privacy, was granted on June 11, according to a June 26 memo signed by ICE head Matthew Albence.

Open The Government’s Policy Director, Emily Manna, notes that the privacy justification is a flimsy one, saying “The Freedom of Information Act already contains a sufficient exemption to protect legitimate personal privacy interests. Preventing the public from obtaining any information about ICE agents—who are public officials—is a violation of the public’s right to know and should be reversed immediately.”

The move also comes four months after the Trump administration designated Customs and Border Protection a Security Agency, signaling a possible shift away from the immigration agencies’ original mandates.

Justice for the Jesuits – NSArchive’s Kate Doyle Testifies in Historic Trial

More than three decades after the shocking execution of six Jesuit priests by the Salvadoran military, National Security Archive senior analyst Kate Doyle testified last week at the historic legal proceedings in Spain to hold senior officials accountable for the November 1989 atrocity. Acting as an expert witness, Doyle authenticated hundreds of declassified U.S. records that have been submitted as evidence to the Spanish tribunal in the case of the Jesuits.

“The U.S. documents provide a strong credibility, and a clear relevance to clarifying the crimes that were committed,” as Doyle, who directs the El Salvador Documentation Project at the National Security Archive, informed the court.

The legal proceedings against former Vice Minister of Public Security Col. Inocente Orlando Montano began in June 2020. Montano, who quietly left El Salvador in 2001 was discovered by human rights investigators living outside Boston in 2011. He was convicted of immigration fraud and, in November 2017, extradited to Spain to stand trial for his role in the Jesuit massacre.

Get the whole story here.

In Brief

  • Don’t miss Citizens for Responsibility and Ethics in Washington’s (CREW) Anne Weismann’s op-ed on FOIA. Weismann notes that while the ongoing pandemic and lack of leadership from the Trump administration have severely hampered many agencies’ FOIA offices, the situation is not beyond repair; she states, “The government as a whole must shift from a culture of secrecy and withholding to one of disclosure. Agencies must devote significant and sufficient resources to ensure timely processing of requests. And they must treat the FOIA as mission critical, not a responsibility that can be readily abandoned when meeting its requirements becomes inconvenient, or politically harmful. All of these are policy choices that an administration and agencies can make without requiring any legislative or regulatory changes.”

OIP Report Misleadingly Touts a Government-Wide FOIA Release Rate of 94.4%, Continued Surveillance of Black Lives Matter, and More: FRINFORMSUM 6/4/2020

June 4, 2020

A great example of a “partial FOIA release” – more on FOIA Mapper: https://foiamapper.com/annual-foia-reports-2015/

OIP Report Says Fed Has Improved FOIA Processing

There is a new leader at the helm of the Department of Justice’s Office of Information Policy – but scant evidence in its latest summary of annual agency FOIA reports that the office is taking a new direction monitoring and “encouraging” FOIA compliance across the government. Despite longtime director Melanie Pustay’s departure last year – a director who Rep. Jason Chaffetz (R-Utah) accused of living in “la-la land” for testifying that she believed FOIA was being properly implemented – and the appointment of Bobby Talebian, OIP continues to tout misleading and unreliable FOIA statistics.

The FY2019 summary report argues that agencies have achieved a government-wide release rate of 94.4% (up from 93.8% last year). OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see above for an example), and excluding more than 270,700 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.

Other highlights from the report include:

  • The government received 858,952 FOIA requests in FY 2019, down slightly from FY2018’s all-time high of 863,729 requests.
  • Exemption 7(c) and 7(e) account for more than 50% of all exemptions applied to denied records or portions of records.
  • Backlogged requests have decreased from 130,718 in FY2018 to 120,436 in FY2019.
    • As a reminder, in 2008 President Obama instructed every agency to reduce its FOIA backlog by ten percent every year. As my dear former colleague Nate Jones notes in his article, FOIA: A Colossus Under Assault, only one agency did this – the Department of Health and Human Services.
  • Four agencies account for 65% of all referrals (and associated delays): DOD, DOJ, DHS, and CIA.
  • The appeals backlog continues to grow – up to 5,087.
    • Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
  • Agencies reported collecting $2,547,638 in FOIA fees – totaling less than .5% of total FOIA costs. 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.
  • Agencies spent nearly $38,842,948 in FOIA litigation. Put another way, agencies lost 15x as much money fighting bad FOIA decisions in court as they collected in FOIA fees.

As always, this year’s OIP summary report makes clear that agencies will need to embrace technology and proactive disclosure. If agencies are looking for guidance on how, 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.

Continued Surveillance of Black Lives Matter

The murder of George Floyd by Minneapolis police officers has sparked global protests against police brutality and has brought Black Lives Matter back to the forefront of the political debate. Readers who remember the FBI’s COINTELPRO – a series of domestic surveillance projects targeting political organizations the bureau deemed subversive – likely will not be surprised to learn that BLM has been the subject of government surveillance nearly since its inception. Here is a by-no-means complete list of resources on the subject:

  • Buzzfeed News’ Jason Leopold and Anthony Cormier report that in June 2020 the Justice Department gave temporary permission to the Drug Enforcement Administration to “‘conduct covert surveillance’ and collect intelligence on people participating in protests over the police killing of George Floyd.”
  • In 2019 a delegation of organizations led by MediaJustice met with members of Congress to seek transparency on the FBI’s surveillance of racial justice movements and the “targeting of Black activists through the use of threat designations like ‘Black Identity Extremist.’” As the MediaJustice press release notes, an August 2017 FBI intelligence assessment, entitled “Black Identity Extremists Likely Motivated to Target Law Enforcement Officers,” was sent to nearly 20,000 law enforcement agencies across the country.
    • Just Security reports in June 2019 that, “FBI Counterterrorism Division Director Michael McGarrity had admitted under questioning that the FBI could not cite a single example of a murder that could be linked to any African American activist group, including Black Lives Matter. He also claimed that the Bureau had eliminated the entire category of ‘Black Identity Extremists’ from its lexicon.”
  • NYPD emails released in 2019 show substantial surveillance of Black Lives Matters between November 2014 and January 2015.
  • In 2016 Jason Leopold won the release of FOIA documents showing that the Department of Homeland Security monitored social media for “intelligence” concerning potential terrorist activity during the Baltimore protests of the death of Freddie Gray while in police custody.
  • Documents released to MuckRock “show that the FBI helped local law enforcement monitor and police at least two Black Lives Matter protests in July 2016.”
  • DHS FOIA releases to Leopold show that in 2014 the agency worked “on a plan to ‘plug’ federal officers into protests to ‘perform surveillance’ and ‘collect intelligence in the crowd’” protesting the shooting death of unarmed black teenager Michael Brown by police officer Darren Wilson in Ferguson, Missouri.
  • More FOIA releases, this time to The Intercept, provide more details on DHS’ regular monitoring of Black Lives Matters since Ferguson.

PIDB Report on Modernizing Classification System

The Public Interest Declassification Board’s (PIDB) latest recommendations can be found in the new report, A Vision for the Digital Age: Modernization of the U.S. National Security Classification and Declassification System. The board’s recommendations are – as always – good, and underscore the reality that without a radical overhaul, the government’s Cold War-era approach to secrecy and declassification will cripple it in terms of safe-guarding necessary secrets and declassifying the information the public and policy-makers need in the 21st century. PIDB’s technological recommendations, like adopting a system-of-systems approach to streamlining technological requirements (and acquisitions), are particularly good, as is the Board’s recommendation that the the National Declassification Center be further empowered vis-à-vis originating agencies.

The report does not, however, address several large structural issues. Steve Aftergood points out that chief among the unresolved problems is “the criteria for determining what is properly classified and what must be disclosed.”

The Board is hosting a virtual public meeting tomorrow, June 5, at 11 AM.

2nd Circuit Helps White House Hide Visitor Logs

The 2nd Circuit Court of Appeals recently ruled against the National Security Archive’s lawsuit to restore the routine disclosure, under the Freedom of Information Act (FOIA), of the White House visitor logs that were taken down by the Trump administration in early 2017.

The 2nd Circuit’s 22-page ruling concentrates on the ostensible intrusion on a president’s ability to receive confidential advice, and the supposed burden of using FOIA’s regular exemptions to process the logs for release, while never acknowledging that the Obama White House routinely published its visitor logs some 90 days after the visit – some six million such records in all – with no apparent hindrance on presidential activity.

The ruling highlights severe weaknesses in the Federal Records Act – which apparently does not preclude a president from converting agency records into presidential ones not covered by FOIA through the simple expedient of a memo of understanding – and in the Presidential Records Act – which provides extremely limited forms of external review for White House record-keeping and the lack thereof.

Overkill, Assured Destruction, and the Search for Nuclear Alternatives: U.S. Nuclear Forces During the Cold War

Seventy-five years after the bombings of Hiroshima and Nagasaki marked the start of the atomic era, questions about the value, danger, and morality of nuclear weapons continue to present a huge challenge for politicians, military strategists, and ordinary citizens.

As that freighted anniversary approaches, the National Security Archive’s Nuclear Vault has gathered a selection of primary sources that could be considered key to understanding the arc of U.S. nuclear policy during the crucial first four decades. The aim is to encourage broad discussion of the many facets of nuclear history grounded in direct evidence.

No doubt many readers will have their own ideas for what to include.  We welcome nominations and at a future date will publish an assortment of additional materials in an annex to this posting.

The “Irreplaceable” Chernyaev Diary

The National Security Archive marks what would have been Anatoly Sergeyevich Chernyaev’s 99th birthday with the publication for the first time in English of his extraordinary Diary for 1980. At the time of the writing, Chernyaev was Deputy Director of the International Department of the Central Committee responsible for the International Communist Movement (ICM) and fraternal parties. The diary traces the further decline of the top Soviet leadership, the emergence of strikes and other labor unrest in the Soviet Union in the midst of deteriorating economy, and the dark cloud of two invasions—one that already happened—Afghanistan, and one that Chernyaev fears might happen—Poland.