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Kavanaugh Instrumental in Bad FOIA Ruling, Secrecy System Unsustainable, and Much More: FRINFORMSUM 7/12/2018

July 12, 2018

#TBT Pick – Kavanaugh Ruling Helped CIA Conceal Bay of Pigs History

This week’s #TBT pick is chosen with the recent nomination of Judge Brett Kavanaugh for Supreme Court Justice in mind. Kavanaugh authored the 2014 ruling in the National Security Archive’s prolonged FOIA lawsuit against the CIA that kept the agency’s 1984 Bay of Pigs Volume V history secret.  Kavanaugh, in a 2-1 ruling, agreed with the CIA and DOJ lawyers that the document was a “draft” and its release would “expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Archive Director Tom Blanton said at the time, “Presidents only get 12 years after they leave office to withhold their deliberations, and the Federal Reserve Board releases its verbatim transcripts after five years. But here the D.C. Circuit has given the CIA’s historical office immortality for its drafts, because, as the CIA argues, those drafts might ‘confuse the public.'”

Congress disagreed with the court’s overly-broad interpretation of the “deliberative process” privilege, and the FOIA was amended two years later to prevent agencies from hiding documents older than 25 years behind exemption five. Thanks to the change in the law, the Archive won the release of the volume in 2016.

Read more about the case here and read the volume here.

National Security Classification System Unsustainable

“We can and must reduce costs and increase efficiency by using digital technology to replace existing analog and paper-based operations. Our system keeps expanding, but remains hamstrung by old practices and outdated technology. We are at a crossroads.” This is according to the Information Security Oversight Office’s newly-released report to the president, highlighted by Steve Aftergood, which is a sobering assessment of the aging and unwieldy secrecy bureaucracy.

Key recommendations from the report include:

  • Using modern technology in security classification programs;
  • Implementing a budget line item that would require agencies to justify security classification expenditures; and
  • Adding a member of the public to the Interagency Security Classification Appeals Panel.

The National Geospatial Intelligence Agency wins special praise in the report for its best practice policy of requiring “written justifications for original classification decisions, along with a description of the damage that would result from unauthorized disclosure, and an unclassified paraphrase of the classified information.”

Also of note is the percentage of classification challenges presented by government employees that are upheld by the government – eight percent were upheld across the government. Aftergood notes, “Because the challenges are now mostly localized in just a few agencies, this practice has the potential to have far more impact in combating overclassification if it can be adopted and encouraged more widely across the executive branch.”

Jones’ Bill Would Circumvent FOIA to Declassify Civil Rights Cold Cases

Senator Doug Jones (D-Ala.) introduced a bill, the  Civil Rights Cold Case Records Collection Act of 2018, that would “create a panel to systematically review, declassify, and release government documents and information related to unsolved criminal civil rights cases from decades ago.” Jones argues that the bill would help shed light on important cases that agencies are too slow to release through FOIA; specifically, Jones says the legislation is needed because “the Freedom of Information Act (FOIA), as implemented, has prevented the timely and adequate disclosure of executive branch records, and congressional records are not subject to public disclosure under FOIA. In addition, some of these records, although almost 50 years old, remain classified unnecessarily or shielded from public view.”

In Brief – FOIAonline Takes a Turn for the Worse

The redesigned FOIAonline is … not good. The site has lost much of its functionality and is no longer mobile friendly. The Reporters Committee’s Adam Marshall has a good hot take here.

FOIA Plays Key Role In Pruitt Downfall – “The FOIAs have been 99.9 percent of it”

Environmental Protection Agency whistleblower Kevin Chmielewski was a key figure in the ouster of disgraced former agency head Scott Pruitt. Chmielewski, who was the EPA’s deputy chief of operations, leaked documents and provided fodder and guidance for FOIA requests, responses to which were critical in turning the tide against Pruitt.  “I’ve put the breadcrumbs where they had to go and pointed to the FOIAs — the FOIAs have been 99.9 percent of it,” Chmielewski said. “They’ve all come back, and in a lot of cases they were worse than I even knew about.” He called the FOIA releases the “silent hero” behind Pruitt stepping down.

Updates to the President’s Daily Brief Under Trump

Government Attic obtained records from the Office of the Director of National Intelligence under FOIA concerning new guidelines for the President’s Daily Brief for President Trump. One of the few unredacted portions of the records instructs the compilers to please limit the use of acronyms. It’s unclear if the president reads the briefs; the Washington Post reported in February of this year that the President has broken with the tradition of reading the highly sensitive document himself, and instead relies on oral briefings of the PDB.

Trump might actually not be the only president not to read the document. A 2016 Archive posting shows that President Richard Nixon may never have even read the President’s Daily Briefs, relying instead on cover memos written by national security adviser Henry Kissinger.

More on past presidents’ relationships with the document can be found on the National Security Archive’s website.

Cyber Brief: Transportation Security

This week the National Security Archive’s Cyber Vault brief focuses on the cyber threat to critical infrastructure (communication, transportation, energy, finance, and vital services), which receives a sizeable volume of attention from researchers and policy analysts. This week’s Cyber Brief collection of more than a dozen pertinent documents collectively examines transportation security in isolation beginning with President Clinton’s Executive Order 13010 and continuing through recent Federal reports on emerging challenges and technologies.

Presidential Control of Nuclear Weapons: The “Football”

Online blustering about nuclear “buttons” has brought new attention to the issue of presidential control over nuclear weapons, and to the special satchel or “Football” of emergency and nuclear planning information carried by White House military aides when the President is traveling. Declassified documents recently published by the National Security Archive describe the Eisenhower, Kennedy and Johnson arrangements for the “Football”; and the posting includes newly discovered White House photographs of six recent Presidents with military aides and Football nearby.

New Testimony Alleges that Former Colombian President’s Ranch Was Paramilitary Base

A ranch owned by former Colombian president Álvaro Uribe Vélez and other members of his family was the operational base of a deadly paramilitary group, according to the testimony of people who worked for the Uribe family in the 1990s. The new evidence, which was reviewed by the National Security Archive, is the subject of an investigation published this week in The New York Times featuring commentary from Michael Evans, director of the Archive’s Colombia documentation project.

Learn more about the declassified record on Uribe from our Colombia project.

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FBI Wants to Put FOIA Lawsuits on Ice until 2021: FRINFORMSUM 6/28/2018

June 28, 2018

FBI Tries to Put FOIA Lawsuits on Hold

The FBI recently told a government attorney that it is beginning to file “Open America” stays in “all FOIA lawsuits going” forward. This means, according to Jason Leopold, who brought attention to this alarming development, that “even if you sue the FBI, the bureau won’t process it until 2021.”

Courts can grant “Open America” stays when an agency demonstrates that “exceptional circumstances” exist and an agency can show that it “is deluged with a volume of requests for information vastly in excess of that anticipated by Congress [and] when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection.” Justice Department guidance importantly notes that, “The Electronic Freedom of Information Act Amendments of 1996 explicitly redefined the term ‘exceptional circumstances’ to exclude any ‘delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.'”

While the FBI argued the stays were necessary because of the bureau’s immense FOIA backlog, it’s not clear that the Open America stays would coincide with a concerted effort to clear the backlog.

Congress should use the FBI’s suspect position as an opportunity to investigate the extent to which the practice of staying FOIA lawsuits is employed at the Department of Justice and possibly other agencies, and what methods agencies are (or aren’t) taking to address their FOIA backlogs.

Financial Disclosure Form Reveals Potential Conflicts of Interest for new FTC Official

A FOIA request submitted by Public Citizen has won the release of Adam Smith’s financial disclosure form. Smith is the Federal Trade Commission’s new Bureau of Consumer Protection director, and the form raises serious questions about an array of perceived conflicts of interest. The form lists more than four dozen clients Smith worked with during his time at the corporate law firm Covington & Burling, among them were Uber, Equifax, and payday lender Scott Tucker, which was fined $1.3 billion by the FTC. Smith has also represented most of the nation’s large financial firms, including those fined for securities and consumer protection violations.

GAO Report: FOIA – Agencies Are Implementing Requirements but Additional Actions Are Needed

The Government Accountability Office has released a new report on FOIA implementation in response to a 2016 request from Congress to determine agencies’ compliance with the law. GAO selected the 18 agencies surveyed in the report based on size and other factors and assessed their performance against 6 metrics mandated by the FOIA. These metrics include online access to government information, including information about FOIA liaisons in agency communications with requesters, and training FOIA personnel. GAO recommends, in short, that agencies follow all of the FOIA’s requirements.

MuckRock’s Emma Best has a very good breakdown of the findings, as well as helpful commentary on how the official GAO findings square with requesters’ actual experiences, including:

  • The four agencies with the largest FOIA backlogs do not have plans to deal with them;
  • Agencies withheld information under the b(3) exemption by citing more than 230 statutes, but courts, as Ms. Best points out, have only upheld 75 of those statutes. The GAO report includes a chart citing which statutes have been upheld in court and which have not; and
  • The most commonly cited b(3) statute “related to withholding records pertaining to the issuance or refusal of visas to enter the United States. It was used by 4 agencies over 58,000 times.”

Focusing on the Intelligence Community’s FOIA Performance

A new report from OpenTheGovernment focuses on FOIA trends at the NSA, DIA, Army, Navy, CIA, and ODNI as compared to the rest of the federal government. OTG found that processing times for complex FOIA requests at these agencies are nearly three times longer than the government-wide average, and that the NSA and DIA’s processing times are worst of all at nearly 6 times the government-wide average.

Other key findings include:

  • The CIA rejects 4.35% of all FOIA requests – considerably more than other agencies – because of ongoing FOIA litigation;
  • FOIA litigation costs at CIA are more than at the NSA, DIA, Army, and Navy combined; and
  • The NSA and CIA fully denied about 40-percent of all FOIA requests on exemption grounds last year.

The OTG data begs a number of important questions, key among them being what is the rationale behind the CIA’s litigation-based denials, and what do the litigations costs reported in the agency’s annual FOIA reports actually cover?

New Digital National Security Archive Document Collection Highlights CIA Covert Operations from 1961-1974

Explore important historical events, like the epic Bay of Pigs disaster, through the lens of little-known or under-explored covert activities in the National Security Archive’s latest digital collection, CIA Covert Operations, Part III – From Kennedy to Nixon. This Digital National Security Archive (DNSA) collection, the most comprehensive of its kind, is the third of five installments concerning the bread and butter of U.S. intelligence operations – covert operations.

The new collection includes first-hand reporting on Che Guevara as he uttered his dying words in Bolivia, assassination attempts on Fidel Castro and Rafael Trujillo, dealings with secret agents and covert support for Kurdish rebels, and the CIA’s search for funds to bribe African dictator Jean-Bedel Bokassa of the Central African Republic.

Cyber Brief: Joint Publication 3-12

This week the Archive’s Cyber Vault highlights the updated Joint Chiefs of Staff Publication 3-12, first published on February 5, 2013. The following changes are prominent in the document:

  • Addition of USCYBERCOM as a combatant command and the creation of the cyber mission force.
  • Command and control for cyberspace operations are given deeper attention.
  • Information is reflected as a joint function.
  • Cyber operation planning is given deeper attention including intelligence and operational analysis support as well as targeting.

The Cyber Vault has a side-by-side view of both versions of the document to help readers compare versions and spot changes.

TBT Pick – U.S. Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick comes from our China Documentation Project and is a 2011 posting celebrating the publication of over 2,000 documents on the U.S. intelligence community’s efforts spying on China. The documents include a U.S. defense intelligence document from 2001 that details Chinese plans for developing radiofrequency weapons (although it stops short of speculating on their possible purpose).  Other records reflect on contemporary issues, like the risks of constructing nuclear power plants – like the Fukushima facility that exploded after the recent tsunami – at questionable sites in Japan.

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New Digital National Security Archive Document Collection Highlights CIA Covert Operations from 1961-1974

June 27, 2018

Explore important historical events, like the epic Bay of Pigs disaster, through the lens of little-known or under-explored covert activities in the National Security Archive’s latest digital collection, CIA Covert Operations, Part III – From Kennedy to Nixon. This Digital National Security Archive (DNSA) collection, the most comprehensive of its kind, is the third of five installments concerning the bread and butter of U.S. intelligence operations – covert operations.

The new collection includes first-hand reporting on Che Guevara as he uttered his dying words in Bolivia, assassination attempts on Fidel Castro and Rafael Trujillo, dealings with secret agents and covert support for Kurdish rebels, and the CIA’s search for funds to bribe African dictator Jean-Bedel Bokassa of the Central African Republic.

Virtually unknown before publication of this collection is the CIA operation against Prime Minister Cheddi Jagan of British Guiana. The documents show how the CIA stirred up economic trouble and labor unrest in Guiana while undertaking political action and propaganda to support an opposing politician handpicked by the U.S during the December 1964 elections.

Documents in this collection depict Cuban operations in particularly stunning detail. They help show that exile raids attacking Soviet merchant ships in the spring and summer of 1963 – as well as embarrassing sallies into Cuba – soured Washington enough to want to further disguise the American hand in Cuba. The documents chart the late 1963 decision by officials to re-orient the CIA’s anti-Cuba program to only support Cuban exile groups operating from outside the United States. After Kennedy’s assassination in November 1963, reporting on the continued infighting among Cuban exile groups, and their lack of impact on Cuba, President Johnson was finally convinced to halt the CIA’s Cuba program.

This set will also provide researchers with unprecedented coverage of deliberations of the CIA’s high command, ranging from minutes of the “Special Group” that approved covert operations throughout the world, to minutes of CIA directors’ daily staff meetings, to the notes of meetings with presidents Kennedy and Johnson that CIA Director John McCone took.

The two previous DNSA collections on CIA covert operations are: CIA Covert Operations: From Carter to Obama, 1977-2010 and CIA Covert Operations II: The Year of Intelligence, 1975.

If you don’t already have DNSA, sign up for a free trial today.

ISCAP Directed to Help with FRUS Volume Even Though Backlog at All-Time High, and More: FRINFORMSUM 6/21/2018

June 21, 2018

ISCAP Directed to Help with FRUS Volume

The Interagency Security Classification Appeals Panel (ISCAP), which is housed at the U.S. National Archives and charged with – among other things –  deciding on Mandatory Declassification Review appeals, held a forum today to discuss the current MDR landscape. Major takeaways from the meeting include:

  • ISCAP received a record-number of appeals in FY2017 – 577, and decided on 50.
  • ISCAP’s backlog has reached a record high of over 1,000 appeals.
  • The majority of documents ISCAP decided on (58%) were declassified in full.
  • Equity re-reviews continue to be the major factor slowing agency responses.
  • The Archive’s William Burr gave an excellent presentation of the history, success, and shortcomings of the MDR process.
  • 23 agencies have submitted their Declassification Guides and ISCAP is working with agencies to revise their guides before approval.
  • A May 23, 2018 memo from the National Security Advisor to ISCAP has triggered 32 C.F.R. Part 2003.15, directing ISCAP to assist with the declassification of documents for the State Department Foreign Relations of the United States volume on national security policy. This begs the question of why the State Department can’t perform the task itself and if, given ISCAP’s growing backlog, this is an effective use of resources.

DHS Not Investigating Abuse Claims

A FOIA request filed by Motherboard won the release of documents showing that in 2017 “the US Department of Homeland Security did not investigate hundreds of civil rights complaints about alleged detainee, prisoner, or suspect abuse filed to the agency’s oversight body.” The documents do not differentiate between the numerous DHS components, which include Immigration and Customs Enforcement and Customs and Border Protection. The overwhelming majority of cases cited in the DHS Inspector General report are marked “closed not converted,” which, as explained in an ACLU lawsuit by the court, means “virtually no investigations into the complaints took place, or at least were completed.”

Troubling CT Law Targets “Vexatious” Requesters

Connecticut recently passed a problematic law that would allow an agency to refuse to respond to a FOIA request or appeal if the state Freedom of Information Commission determines the request or requester is “vexatious.” The law allows the state agency or municipality to ignore the requester for a year. State Senator Toni Boucher (R) said the law was necessary “because there have been a number of individuals who have filed voluminous FOIA requests with the general assembly, public agencies, and municipalities.” The weak explanation ignores the myriad of ways the legislation could be abused to deny public access to official records.

The bill, which passed unanimously, was supported by municipal organizations like the Police Officers Association of Connecticut, as well as the Connecticut Society of Professional Journalists.

Thanks to Mike Morisy for drawing attention to this law.

Agency Records Stored at NARA Federal Records Centers are Still Agencies’ Responsibility

A helpful blog from the U.S. National Archives’ Office of Government Information Services (OGIS) reminds agencies that their records stored in any of NARA’s 16 Federal Records Center are still the legal custody of the agency and must be searched by the agency in response to a FOIA request.

The blog highlights the important difference between when a record is “accessioned” to NARA – a process that only happens if the record is determined to have permanent historical value as identified in an agency’s records retention schedule – versus when a document is stored in a NARA facility (which is much more frequently the case). As NARA points out, if an agency receives a FOIA request for records stored at an FRC, “It is incumbent on that agency to contact NARA and request access to those records. That agency is required to review and process the records, and respond directly to the requester. NARA’s role is limited to assisting the agency with retrieval of the responsive records.” Many agencies appear not to be aware of this responsibility.

Here is the list of all the Federal Records Centers.

FOIA Confirms DOJ Not Reporting to Congress on State Secrets Usage

A FOIA request shows that the Justice Department had little appetite for following then-Attorney General Eric Holder’s 2009 instructions for the DOJ to regularly provide volunteer reports to Congressional oversight committees concerning the government’s invocation of the state secrets privilege. The first report was produced in 2011, but as Steve Aftergood notes on the Federation of American Scientists’ Secrecy News blog, it was also the last. A FOIA request for any subsequent reports received a “no records” response.

An earlier FOIA request from Aftergood for the Attorney General’s written responses to questions from the House Judiciary Committee following a June 7, 2012, hearing shows that “A definitive accounting of the number of lawsuits in which the U.S. Government has invoked the state secrets privilege cannot be provided because some of those cases may be too sensitive to acknowledge or disclose.” The DOJ did note that the Attorney General had invoked state secrets privilege in six known cases between 2009 and 2013 – including Gen. Petraeus’s use of the privilege while head of CIA in an employee discrimination case, which is not widely considered a state secrets case.

More information and resources on the state secrets privilege can be found here.

Cyber Brief: Federal Ban on Kaspersky Products

This week’s Cyber Brief includes the guidance implemented by the Department of Defense, General Services Administration, and NASA for the ban on Kaspersky products mandated in the 2018 National Defense Authorization Act. The relevant NDAA section is accompanied by a DHS directive to identify and remove Kaspersky products from Federal systems within 90 days, and court documents from a lawsuit in which Kaspersky alleges that the DHS unfairly blocked its software from Federal systems based on unsubstantiated evidence.

TBT Pick – The Taliban File Part III

CIA poster on “Afghanistan’s Key Players,” circa 2001.

This week’s #TBT pick is a 2004 posting showing the State Department reporting that Pakistan provided millions of dollars, arms, and “buses full of adolescent mujahid,” to the Taliban in the 1990s. The posting includes a March 9, 1998 cable on a meeting between the US Deputy Chief of Mission Alan Eastham and a source who appears to be Pakistan Foreign Ministry official Iftikhar Murshed, who for the first time admitted that Pakistan provided arms supplies to the Taliban.

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NDAA Includes More Unnecessary B3 Exemptions, What Happens to the Records Trump Destroys at His Private Properties, and More: FRINFORMSUM 6/15/2018

June 15, 2018

NDAA Includes More Unnecessary B3 Exemptions

The current version of the National Defense Authorization Act contains four proposed (b)(3) exemptions that will prevent the public from knowing information it should have access to. (B)(3) is an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has closer to 250including one about watermelon production data. Statutory exemptions give the DIA, NSA, DOD components, and others far more leeway to hide information than other agencies.

The (b)(3)s included in the latest NDAA include the Cyberspace Solarium Commission, providers of information technology products and services who have obligations to foreign governments, the Defense Department’s registry of disclosures, and the export control enforcement authority.

Information that should be public will likely be hidden as a result of the proposed (b)(3) exemptions, and the information that the exemptions are rightfully trying to keep secret could be withheld under existing exemptions to the FOIA (probably (b)(1), (b)(5), and (b)(7)) rendering the proposed exemptions an unnecessary and harmful impediment.

NARA Can’t Stop the President from Destroying Official Records, Forcing Staff to Tape them Back Together – Begging Questions About Records Destroyed at Trump Properties

News broke this week that President Trump has a habit of ripping up his papers once he’s done with them, meaning that White House records management specialists charged with preserving federal records have to puzzle the documents together with scotch tape. Unable to disabuse the President of his habit of destroying documents, “Staffers had the fragments of paper collected from the Oval Office as well as the private residence and send it over to records management across the street from the White House for Lartey and his colleagues to reassemble.”

The National Archives maintains that it has no role enforcing the President’s records keeping actions and that it can only provide guidance.

The issue is concerning enough in Washington, but raises larger questions about what happens to official records that the President destroys at his private residences far from DC – where he spends months of the year and where there are no records keeping officials taping them back together at the end of the day.

NDC Seeking New Director 

NARA’s National Declassification Center, stood up in 2010 and charged with coordinating declassification practices across agencies and reviewing records already in NARA’s custody for declassification, is seeking a new director. Founding director Sheryl Shenberger is stepping down after an eight year stint, and the job is open to both government and non-government employees. The Archive has been one of NDC’s frequent critics, but has been pleased to see the direction the NDC has taken over the last few years, most especially the introduction of its indexing on demand program in 2015, which allows the public “to select specific entries that the National Declassification Center (NDC) should prioritize for release.” Hopefully NDC’s next director will continue working to use the Center to declassify as much government information as possible.

John Kelly Warned about FOIA “in the Cesspool”

Documents obtained by Jason Leopold and Buzzfeed in a FOIA lawsuit show President Trump’s chief of staff, John Kelly, had an adversarial relationship with FOIA during his tenure as head of the Department of Homeland Security. In one email instructing someone (it’s unclear if the person is a DHS employee or private citizen) not to email, Kelly says, “FOIA is real and everyday here in the cesspool, and even federal court action on personal accounts is real.” At the time most of DHS’s focus was on immigration. Kelly later explained that he wanted the individual to stop emailing because the DHS employees who voted for Hillary Clinton in the 2016 election “find some of the postings offensive” – although the “cesspool” email also warned the recipient about the danger of leaks, and cautioned the person to be careful, “infinitely more than you had to in the past.”

The documents also confirm that Kelly’s personal email had been hacked, and that Kelly started conducting most business by phone and face-to-face meetings as a result.

FOIA Suit for Documents in Kushner-led Office Continues

The Office of American Innovation, an office set up by the Trump administration to reduce the size of the federal bureaucracy and maintained within the White House and led by Jared Kushner, should accept and process FOIA requests – this according to an ongoing FOIA lawsuit brought by Democracy Forward and Food & Water Watch. This week the plaintiffs filed a brief in federal district court challenging the administration’s position that the office exists only to advise the president, and is therefore exempt from FOIA. Plaintiffs argue that the office launches initiatives, implements programs, and imposes duties on government agencies, and therefore is not exempt.

There are currently six Executive Offices of the President subject to FOIA: the Office of Management and Budget, the Council of Economic Advisers, the Office of National Drug Control Policy, the Council on Environmental Quality, the US Trade Representative, and the Office of Science and Technology Policy.

The White House Office of Administration was subject to FOIA until a 2015 Obama-era rule exempted the office from FOIA.; while the rule was issued during the Obama administration, the office stopped complying with FOIA requests during the Bush administration.

Other EOPs, like the National Security Council, have been found by courts not to be subject to the FOIA.

IRS Needs 13 years to Search Email of 165 Employees

A federal judge in the U.S. District Court for the District of Columbia rejected Cause of Action’s challenge to the IRS’s motion for summary judgement in a FOIA suit seeking documents concerning the Craig memo – a 2009 memo from White House Counsel Gregory Craig instructing “all federal agency and department general counsels to consult with the White House on all document requests that may involve documents with ‘White House equities.’” (What constitutes White House equities remains vague.)

The case also sheds light on agencies’ ongoing inability to search email. The IRS informed Cause of Action during the course of the suit that it had no responsive records. Cause of Action argued that the IRS’s search was unduly narrow – in no small part because the agency didn’t conduct a search of employee email accounts, arguing it would be too burdensome. The IRS argued, for instance, that “would take one IRS IT person at least 13 years . . . to capture all of the emails of the[ ] 165 employees” in one IRS bureau alone.

The judge, finding there to be no disagreement on the material facts of the case, sided with the IRS.

The National Security Archive’s 2018 FOIA audit reveals that the IRS isn’t alone in claiming it can’t search emails in response to FOIA. Far too many FOIA shops do not consult with IT personnel to see if it is possible to search email before denying a request, only conceding to do so once confronted with an appeal.

McCabe Lawyer Argues DOJ Withholding Documents Makes It Impossible for McCabe to Defend Himself

Attorneys for fired FBI deputy director Andrew McCabe are filing a FOIA lawsuit, arguing that the Justice Department is withholding documents necessary for “defending him in connection with the misconduct allegation that led to his dismissal in March.” The suit specifically seeks manuals and policies used by the DOJ, the Inspector General’s office, and the FBI in carrying out both investigations and employee discipline. “McCabe’s attorney’s suit says that most or all of the policies at issue should be publicly available online or in agency reading rooms open to the public, but Justice officials have rebuffed requests for the documents.”

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The Archive’s New Interactive CyberWar Map and more: FRINFORMSUM 6/7/2018

June 7, 2018

The Archive’s New CyberWar Map

The National Security Archive is thrilled to announce the launch of our interactive CyberWar Map. The Map is both a visualization of state-sponsored cyberattacks and an index of documents in the Archive’s Cyber Vault relevant to the subject selected. Clicking on each node will reveal documents and analysis and the entire map will be particularly useful to researchers and those trying to identify a “bird’s eye view” of the cyber-battlefield.

The CyberWar Map is a living research aid: documents and nodes will be added on a regular basis.

ATF Rarely Punishes Gun Dealers for Illegal Sales     

FOIA requests help fuel a recent New York Times investigation into how the Bureau of Alcohol, Tobacco, Firearms and Explosives rarely punishes gun sellers for a variety of violations. ATF inspection reports, obtained by the Brady Center to Prevent Gun Violence, help show that senior ATF officials “regularly overrule their own inspectors, allowing gun dealers who fail inspections to keep their licenses even after they were previously warned to follow the rules.” Violations cited – and ignored – include illegal weapons sales, failing to conduct background checks before selling a gun, and selling guns to felons.

The Times notes that while half of the 11,000 gun retailers that were inspected by ATF were cited for violations, less than 1 percent lost a license.

Appeals Court Tells DOE to Use Common Sense When Dealing with Requesters

The Department of Energy is trying to avoid responding to a FOIA request by claiming that only the individual who filled out the DOE’s online FOIA form – in this case Cheryl Brantley – could file a FOIA lawsuit over the DOE’s failure to respond to the request. The DOE argued that the organization Brantley indicated she worked for on the DOE FOIA form, A Better Way for BPA, did not have grounds to sue. The DOE took this position even though Brantley made clear in her initial request that she was requesting the information for her organization.

The Ninth Circuit Court of Appeals rebuked the Energy Department’s tactics, arguing “Any confusion in the electronic form was of BPA’s own making and could easily be fixed by including a place to check that the request is made ‘on behalf of’ an organization or by adding ‘public interest organization’ or ‘other’ options under Type of Requester.”

The appeals court sent the suit back to the district court, saying “common sense must be used when dealing with FOIA requesters, who are usually citizens untrained in the art of obfuscatory bureaucracy.”

Trump Told Cabinet to Praise Paris Exit – “No Exceptions”

FOIA-released emails “offer a behind-the-scenes look at how the White House ordered agency leaders to publicly praise Trump’s announcement on Paris.” The White House Press Office’s Kaelan Dorr sent an email instructing all cabinet-level agencies to prepare statements supporting the decision to leave the climate accord, “No exceptions.” Other emails show that the White House wanted all agencies to prepare statements to show that the decision to leave was the result of “an interagency policy process.”

Judge Calls EPA FOIA Dodge “Misplaced and Troubling”

Federal District Court Judge Beryl A. Howell has ordered the Environmental Protection Agency (EPA) to produce documents on administrator Scott Pruitt’s claim that carbon dioxide was “not known to be a major factor in climate change.” Pruitt claimed on CNBC last March that he didn’t agree that carbon dioxide was a major contributor to global warming and “there’s a tremendous disagreement about the degree of the impact” of “human activity on the climate.” Public Employees for Environmental Responsibility (PEER) filed a FOIA request for any documents that might back up Pruitt’s claim, which contradicted evidence already shared by the EPA.

The EPA refused to comply with the FOIA, saying PEER’s request was overly broad and “would require EPA to spend countless hours researching and analyzing a vast trove of material on the effect of human activity on climate change,” which amounted to “a subjective assessment upon which reasonable minds can differ.”

Judge Howell disagreed, “calling the Agency’s objections ‘hyperbolic’ and saying that claiming PEER’s FOIA was unclear was ‘both misplaced and troubling.’” Howell also said, “When the head of an agency makes a public statement that appears to contradict ‘the published research and conclusions of’ that agency, the FOIA provides a valuable tool for citizens… Compliance with such a request would help ‘ensure an informed citizenry, vital to the functioning of a democratic society.’”

Another FOIA request revealed that Pruitt’s spent nearly $1,600 on a set of customized fountain pens from a D.C.-area jewelry store.

NSA’s Internal Security Posters

The National Security Agency recently released more than a hundred motivational “security” posters from the 1950s through the 1970s in response to a FOIA request from Government Attic. The posters are a unique glimpse into the agency’s Cold War culture, with many posters from the 1950s containing overt Christian themes, to later ones from the 1970s picking up more pop culture references – including a spin on Saturday Night Fever.

The Archive’s Nate Jones tells Slate, “These posters were created when the Cold War was accelerating toward its hottest point. Almost all within the U.S. government thought that the Western capitalist system was in a struggle with the Soviet communist system for the future of the word. And as the posters show, they didn’t go light on propagating this to their employees.”

The NSA isn’t the only agency to use posters to reinforce its culture of secrecy. MuckRock has a collection of CIA secrecy posters from the 1970s here.

Frank Carlucci Remembered

Former defense secretary Frank Carlucci has died at the age of 87. Carlucci also served as national security adviser and CIA deputy director, and was classmates with both Donald Rumsfeld and Caspar Weinberger.

The National Security Archive’s primary source highlights from the career of one of Washington’s pre-eminent insiders – from Chile to Japan to the Reagan-Gorbachev nuclear summits – can be found here.

Carlucci’s oral-history interview with the Association for Diplomatic Studies and Training Foreign Affairs Oral History Project is also a terrific resource that can be reached here.

TBT PickStanding on the Brink: The Secret War Scare of 1983

This week’s #TBT pick is chosen with a recent The Nation article on the nuclear war scare of 1983 in mind. The article notes that the Archive’s Nate Jones obtained “The Holy Grail” on the Able Archer 83 war scare- a secret 1990 report by the President’s Foreign Intelligence Advisory Board, and credits him for overseeing “a relentless campaign to pry classified material on Able Archer from the US government and publish it online. Anyone wanting to know about Able Archer now has a place to go and browse.”

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Why Does Sen. Rubio Want to Stop U.S. Funding for Crime-Fighting Commission in Guatemala?

June 5, 2018

Sen. Patrick Leahy voices support for U.S. funding of CICIG

Washington, DC—Senator Patrick Leahy (D-VT) took to the floor of Congress yesterday to voice his support for the international organized crime-fighting commission in Guatemala, CICIG. Leahy’s statement was a pointed rebuke of Florida Senator Marco Rubio for his recent decision to place a hold on U.S. funding for CICIG. Leahy was also pushing back against Rep. Chris Smith (R-NJ) and other Republican senators for a hearing they held in April to air grievances about CICIG’s role in Guatemala.

Leahy said: “Today, CICIG is once again being attacked, including by some senior officials, who have sought to exploit factual misrepresentations, including those echoed in the Guatemalan and U.S. media, about a troubling case involving members of a Russian family who entered Guatemala with fraudulent passports. This has even resulted in a portion of the funds appropriated by Congress for CICIG to be temporarily blocked from disbursement.”

Why has Senator Rubio moved to block U.S. funding for CICIG? What motivated Rep. Smith to organize a hearing under the auspices of the “U.S. Helsinki Commission” to lob criticisms CICIG and its investigations in Guatemala? And how did a Russian family get in the middle of this story?

The National Security Archive’s Kate Doyle and Elizabeth Oglesby of the University of Arizona, Tucson, wrote an article together for the on-line news site, World Politics Review, answering those and many more questions about…

Why Guatemala’s Anti-Corruption Commission Faces a New Wave of Efforts to Derail It

by Kate DoyleElizabeth Oglesby
Wednesday, May 23, 2018

A new attorney general took office in Guatemala last week amid sharp tensions over the role of a United Nations-backed anti-corruption commission that has helped bring high-profile charges against some of the country’s most powerful politicians. Maria Consuelo Porras, a former substitute judge for Guatemala’s Constitutional Court, will run the country’s Public Ministry and direct its criminal, human rights and anti-corruption investigations. The outgoing attorney general, Thelma Aldana, and her predecessor, Claudia Paz y Paz Bailey, showed impressive leadership and independence in investigating and prosecuting these sorts of cases. Now their enemies want those advances reversed.

Across Central America, public prosecutors are taking on a key role in investigating and dismantling deeply rooted organized criminal networks. But Guatemala’s widening corruption probe, which brought down a sitting president, Otto Perez Molina, in 2015 and threatens to implicate the current president, Jimmy Morales, as well as scores of others, has triggered a backlash from entrenched economic and political elites who want to protect themselves from future investigations.

Foes of the U.N. anti-impunity commission, known as CICIG for its initials in Spanish, seemed to score a hit in early May, when U.S. Senator Marco Rubio announced he would seek to freeze $6 million in U.S. funding for CICIG. The United States provides about 40 percent of the commission’s funding. Rubio’s announcement came days after the U.S. Helsinki Commission, a federal agency, held a hearing on CICIG’s alleged malfeasance in a case in Guatemala involving the wealthy Bitkov family.

The Bitkovs are self-proclaimed Russian exiles convicted in Guatemala in January 2018 of identity fraud as part of a broader probe against a criminal ring within the Guatemalan immigration office that is accused of selling false passports. In April, a higher court in Guatemala overturned the Bitkovs’ conviction. Despite accusations raised during the recent congressional hearing in Washington, there is no evidence of Russian government influence over CICIG in the Bitkov case or any other case in Guatemala. CICIG does not receive funding from Russia.

The Bitkov controversy is really just a sideshow, a piece of a much larger lobbying effort spearheaded by conservative political and economic sectors within Guatemala to discredit and weaken the anti-corruption commission. Why do these sectors oppose CICIG, and how have they won a U.S. senator’s support? Will Guatemala’s new attorney general cooperate with CICIG even when it means pursuing politically sensitive cases?

CICIG was created in 2006 at the request of the Guatemalan government and with the support of the United Nations. Its mandate is to help investigate and bring to justice cases of corruption and criminality, including drug-trafficking, graft, money-laundering, tax evasion and other financial crimes. CICIG provides technical assistance to the Guatemalan Public Ministry and can serve as an “adjunct prosecutor” in select cases.

Iván Velásquez, CICIG’s commissioner

Many of CICIG’s early cases focused on Guatemala’s so-called “hidden powers,” shadowy criminal networks that gained influence during the decades of military dictatorship and counterinsurgency warfare in Guatemala. Active and retired military personnel, particularly those linked to army intelligence, used their government connections to expand their illicit activities, such as moving contraband and illegal drugs, facilitating illegal adoptions and human smuggling, issuing false government documents, and skimming hundreds of millions of dollars from public coffers. CICIG’s work accelerated after 2013 under the direction of Ivan Velasquez, a veteran prosecutor from Colombia who is now the target of attacks by those threatened by the commission.

The lobbying effort to discredit CICIG got serious in December 2016 after Donald Trump was elected U.S. president, and CICIG’s foes within Guatemala thought they had an opening. A group of right-wing businesspeople went to Washington for meetings in Congress to call for the removal of then-U.S. Ambassador Todd Robinson, whom they saw as overstepping his diplomatic role by vigorously defending CICIG. One of them was Betty Marroquin, a conservative columnist and political analyst, who has since played a leading role in the anti-CICIG campaign. The lobbying escalated during Trump’s first year in office, as four Guatemalan congressmen hired the law firm Barnes & Thornburg—already under contract to represent President Morales, who faces corruption charges of his own—for $80,000 a month to help them lobby U.S. lawmakers.

Last August, Morales tried to expel Velasquez, after CICIG and the Public Ministry linked him to illicit campaign financing and sought impeachment proceedings. The president’s maneuver was blocked by the Constitutional Court and condemned internationally, including by bipartisan congressional leaders in the United States. In February, Guatemalan Foreign Minister Sandra Jovel tried—and failed—to convince U.N. Secretary-General Antonio Guterres to issue a statement condemning Velasquez’s leadership of CICIG. Velasquez has been widely praised by Guatemalan civil society and by the international community.

Although some news outlets reported, erroneously, that Rubio had succeeded in suspending U.S. funding for CICIG this month, in fact, American support for the commission remains intact. Rubio’s “hold” on funding is just a request that is not likely to go anywhere in Congress. The anti-graft commission continues to be praised by U.S. lawmakers, the State Department and the new U.S. ambassador in Guatemala City. Guterres offered his continued support for Velasquez shortly after last month’s misguided and sparsely attended hearing in Congress.

CICIG is seen as a model for anti-corruption efforts elsewhere in Central America and even Mexico. A bipartisan bloc of U.S. lawmakers consider these anti-corruption measures key to addressing perceived American security threats in Central America, such as transnational crime and migration. Public opinion in Guatemala is also strongly in favor of CICIG; a recent survey by the respected pollster Latinobarometro found that CICIG is the most trusted institution in Guatemala.

Rubio’s intervention is not likely to make a dent in U.S. support for CICIG. But it may further destabilize the political situation in Guatemala. Less than a week after Rubio’s announcement, the Guatemalan government demanded that Sweden withdraw its ambassador to Guatemala, Anders Kompass, after Kompass announced a new round of Swedish financial support for CICIG and praised the anti-corruption efforts.

Guatemala’s new attorney general is entering a volatile political scene. Just days before Porras took office, prosecutors in Guatemala presented new evidence against Morales.

Porras’ prior career, during which she held several positions within the Public Ministry before becoming an appellate judge, does not mark her as a crusader. She was named to her post by Morales from a slate of other candidates. Certainly, she will face intense pressure from entrenched elites to slow or even reverse the gains made in prosecuting organized crime in Guatemala. Then again, human rights groups had the same doubts about Porras’ predecessor, Thelma Aldana, who nonetheless unleashed a wave of high-level cases.

The reactionary forces of the status quo in Guatemala are well-heeled and accustomed to winning. But Guatemala’s citizens are increasingly emboldened to demand justice and an end to impunity for crimes and corruption. They deserve the support of Americans, and their elected representatives.

Kate Doyle is a senior analyst of U.S. policy in Latin America at the National Security Archive. 

Elizabeth Oglesby is associate professor of Latin American studies at the University of Arizona, Tucson, and a Public Voices fellow with the OpEd Project.