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

May 23, 2019

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

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

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

DOD Restricts Information it Shares with Congress

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

Judge Orders Release of Information on US Attorney Accused of Misconduct

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

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

List of 2017 OLC opinions

Four More OLC “Secret Law” Opinions Named

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

The newly-releasted opinion titles are:

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

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

DeVos Used Four Personal Emails for Work

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

Always Appeal

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

George W. Bush Library Kavanaugh Documents

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

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

May 16, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Via Adam Goldman/ Washington Post

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

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

Cyber Brief: U.S.-Japan Agreement

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

TBT Pick: The CIA’s Vietnam Histories

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

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

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

May 15, 2019

Via Adam Goldman/ Washington Post

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

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

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

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

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

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

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

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

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

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

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

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

May 2, 2019

FOIA Reporting Shows Serious Problems in Michigan Prisons  

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

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

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

Police Misconduct Database

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

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

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

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

When Federal Agencies Pay the President

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

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

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

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

The book can be found here.

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

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

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

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

JFK vs. Israel’s Bomb 1963

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

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

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

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SCOTUS Hears First FOIA Case Since 2011, 9th Circuit Says Contractor Docs Not Protected by Exemption 5, and More: FRINFORMSUM 4/25/2019

April 25, 2019

Exemption 4 Scope Awaits SCOTUS Ruling

On Monday the Supreme Court heard oral arguments in the case of Food Marketing Institute v. Argus Leader Media. The case, which is the first the justices have heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP) and has potentially wide implications for FOIA’s Exemption 4. The Department of Agriculture was the original defendant, but FMI intervened when the government withdrew – although the government presented an amicus brief in this case. The justices appeared split along party lines, with Democratic-appointed justices more inclined to see the merits of the Argus Leader arguments. Justice Sotomayor had particularly strong questions for the FMI attorney and the government, and “accused the Justice Department of declining to appeal an earlier court ruling requiring disclosure of the data, then attempting ‘an end run’ by ‘piggybacking’ on the food retailers’ petition to the high court.”

For FOIA requesters, perhaps the most unnerving part of the arguments came from Justice Department attorney Anthony Yang, whose opening statement flies in the face of current Justice Department guidance.  Yang said, “The government will not release the disputed records from 2005 to 2010 if a FOIA exemption applies. So long as the government is not judicially compelled to do so, it will not do so.” This is a jarring departure from the still-on-the-books March 19, 2009 AG Holder memo on FOIA which explicitly states “an agency should not withhold information simply because it may do so legally.”

It’s worth noting the case was filed before the FOIA Improvement Act of 2016, which added a foreseeable harm standard that raised the bar for withholding information. If the justices rule in favor of the plaintiff and adopt a broader definition of the exemption, MuckRock suggests that more litigators in the future may turn to enforcing the foreseeable harm standard.

The justices last heard a FOIA case in 2011, Milner v. Department of the Navy, and then “issued a pro-disclosure ruling, voting 8-1 to reject a longstanding interpretation that allowed use of that exemption to cover records whose disclosure could frustrate an agency’s operations.”

9th Circuit Says Contractor Docs Not Protected by Exemption 5

The 9th circuit this week issued a split decision on a case addressing the role of consultant and contractor’s work in regards to FOIA and, importantly, rejected the “consultant corollary” for FOIA Exemption 5, which suggests consultant-created documents fall under the exemption’s discretionary protection of inter and intra-agency communications. The panel ruled that records created by contractors can’t be withheld under Exemption 5 because they aren’t “intra-agency” communications – an important ruling considering the increasing amount of work done by government contractors.

439-Page NCIS Report Leads to Court-Martial of Decorated SEAL Platoon Chief for War Crimes in Iraq

A 439-page Navy Criminal Investigation Report obtained by The New York Times details how Navy SEAL commandos from Team 7’s Alpha Platoon met with their troop commander to formally complain about their platoon chief’s murderous behavior in Iraq – behavior that included “Stabbing a defenseless teenage captive to death. Picking off a school-age girl and an old man from a sniper’s roost. Indiscriminately spraying neighborhoods with rockets and machine-gun fire.” The SEALs asked for a formal investigation, but instead “of launching an investigation that day, the troop commander and his senior enlisted aide — both longtime comrades of the accused platoon leader, Special Operations Chief Edward Gallagher — warned the seven platoon members that speaking out could cost them and others their careers, according to the report.”

The SEALs were finally able to refer the matter to outside authorities and Gallagher was arrested in September on more than a dozen charges; his court-martial trial begins May 28.

A January order from SEAL commander Rear Adm. Collin Green mandated a 90-day review of the SEAL’s culture, but has yet to be made public.

The Navy Times has more background on this story here.

Reading Barr’s Redactions on Mueller’s Report: Justice Department censored CNN headline, New York Post quotation, and more

The Justice Department redactions to the Mueller Report are on their face overdone, according to an analysis by the National Security Archive that was able to uncover what was beneath some of the unnecessary redactions. (The Washington Post counts that some 176 of the 448 pages feature at least one redaction, and 10 pages are blacked out in full.)

The censors working for Attorney General William Barr even blacked out people’s names that appear in published news accounts or in public quotations.  For example, on Volume 2, page 128, there’s a black blotch and the code “HOM” [claiming Harm to Ongoing Matter] over a name that President Trump told the New York Post in a direct quote during a November 2018 interview, a quote the Post subsequently published.  The name is Roger Stone, the currently indicted former partner of convicted felon and Trump campaign manager Paul Manafort. A blotch labeled HOM also covers the first few words of an actual news story title listed in the footnotes on that page – a title you can look up on CNN, “Roger Stone associate says he won’t agree to plea deal.”

These unwarranted deletions are black marks on Barr’s record and on the credibility of the Justice Department.  The idea that leaving in any mention of Stone would somehow do harm to the ongoing prosecution cannot be true, given the amount of information the government has already had to file in court to indict Stone, not to mention the vigorous counter arguments made by a vociferous Stone and his defense team.

The Stone censorship also proves that – of all four of the censorship categories claimed by Barr – HOM is the most subjective.  HOM black outs make up the bulk of the Barr redactions, 427 of them, compared to 358 cuts for “Grand Jury” materials, 94 for “Investigative Techniques,” and 74 for “Personal Privacy.”

Read the whole analysis here.

Cyber Brief: Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations

The Archive’s latest Cyber Brief examines the Tallinn Manual 2.0, the second edition of NATO’s Cooperative Cyber Defence Centre of Excellence’s analysis on the application of international law to cyberspace. The analysis rests on the idea that cyber operations do not occur in a legal vacuum, and preexisting obligations under international law apply equally to the cyber domain. As such, the Tallinn Manual 2.0 is broken into four parts with twenty chapters total, each examining a different area of existing international law. The first section deals with general legal principles, while the latter three sections address specific specialized legal regimes. Consistent with its premise, the Tallinn Manual 2.0 cites over a century’s worth of treaties and case law, extending the premises of international law principles and regimes to their applications in cyberspace. Presented below is a list of the cases and treaties cited by the Tallinn Manual 2.0, listed in order of appearance by chapter, which serves as both a reference guide for the manual itself, as well as to illustrate the diversity of law which governs cyber activities.

TBT Pick: Why is “Poodle Blanket” Classified?

This week’s #TBT pick comes from the Archive’s file of “Dubious Secrets” and highlights the Pentagon’s ridiculous 2010 decision to deny a FOIA request for documents on “Poodle Blanket” contingency plans from 1961 for a possible confrontation over West Berlin (no longer divided) with the Soviet Union (no longer a country) on the basis that its release could damage current U.S. national security. The denial was made more ridiculous by the fact that in the early 1990s, the State Department’s historical series, Foreign Relations of the United States, published a number of documents on “Poodle Blanket” — including the highest-level National Security Action Memorandum 109. Read more here.

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Reporter Carol Rosenberg’s FOIA Request Changes Course of al-Nashiri Trial: FRINFORMSUM 4/19/2019

April 19, 2019

FOIA Request Shows Al-Nashiri Trial Judge Secretly Sought DOJ Position  

In a remarkable turn of events, the Court of Appeals for the D.C. Circuit “threw out every single pre-trial order issued over the past three-and-a-half years in the case of Abd Al-Rahim Hussein Muhammed Al-Nashiri,” the alleged USS Cole bomber currently being tried by a military commission at Guantanamo. Steve Vladeck has a superb write-up of the unanimous ruling (that also includes every single order on appeal), which comes after the disclosure that the former trial judge presiding over the al-Nashiri case, Air Force Colonel Vance Spath, was applying for -and negotiating the terms of- a position with the Justice Department as an immigration court judge. He kept his job application secret from all parties, a gamble that could call into question Spath’s partiality. Vladeck notes that a FOIA request filed by reporter Carol Rosenberg “turned up the very documents pertaining to Spath’s candidacy for a position as an immigration judge that the government had refused to disclose” and led to this week’s ruling.

The National Security Archive filed a FOIA lawsuit for CIA director Gina Haspel’s torture cables, which describe graphic acts of deliberate physical torture -including the waterboarding of al-Nashiri- when she was chief of base at a CIA black site in Thailand in 2002. Although the CIA redacted Haspel’s name and those of the CIA contract psychologists James Mitchell and Bruce Jessen who administered the waterboard from the release, other declassified documents (including the 2004 CIA Inspector General report) and public statements confirm their leadership of the torture of alleged terrorist Abd al Rahim al-Nashiri at the black site between November 15 and December 4, 2002.

Exemption 4 Case Heads to SCOTUS

The Supreme Court will hear oral arguments in the case of Food Marketing Institute v. Argus Leader Media this Monday. The case, which Argus Leader outlines here, concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP) and has potentially wide implications for FOIA’s Exemption 4. National Security Counselors’ Kel McClanahan says, “A ruling for the requester would mean nothing more than a continuation of the status quo, where business information can only be withheld under Exemption (b)(4) upon a showing of competitive harm. But a ruling against the requester would turn Exemption (b)(4) into some sort of super-exemption, where the mere fact that business information had not previously been made public would suffice to withhold it.”

The Department of Justice recently filed an amicus brief in support of an expansive interpretation of the exemption.

Redactions: The Declassified File – Mueller Report Censorship Raises Question: What’s the Government Hiding?

This Joint Staff memo concerns a revised National Security Decision Directive​ on U.S. strategy toward the Soviet Union. The version on the left was released in 2016 but contains heavy redactions that reviewers did not consider necessary in 2010 when they declassified the version on the right in full.

The release of the redacted Mueller report focuses new public attention on the systemic problem of over-classification and the routine overuse of exemptions to the Freedom of Information Act that are supposed to be reserved for protecting true secrets. To provide background to the problem, the National Security Archive posted just a small selection from the hundreds of “dubious secrets” it has published over the years in which U.S. government censors blacked out documents that had already been released in full or redacted entirely different parts of the same document at different times. The examples show how subjective the classification process is and how often agency declassifiers opt for the most sweeping rulings that wind up denying any reasonable access to U.S. government information.

Much of the Mueller report was redacted with the justification that release would cause “Harm to Ongoing Matter,” which refers to ongoing trials and investigations, like that against Roger Stone. The bright side of this justification is that once these cases are completed, those redactions should be easily stripped back.

Nuclear Stockpile Information Censored by Pentagon for 1st Time in Years

The Pentagon is denying a request to declassify the current size of the US nuclear stockpile, despite having released the information to the Federation of American Scientists on an annual basis since 2010 – and without any harm to national security as a result. Steve Aftergood reports, “Because the current size of the U.S. nuclear stockpile constitutes so-called ‘Formerly Restricted Data,’ which is a classification category under the Atomic Energy Act, its declassification requires the concurrence of both the Department of Energy and the Department of Defense. In this case, DOE did not object to declassification but DOD did.” The DOD gave no rationale for denying the release, but one official “said the problem was that one of the main purposes of the move to declassify the stockpile total — namely, to set an example of disclosure that other countries would follow — had not been reciprocated as hoped.”

Hans M. Kristensen, director of FAS’ Nuclear Information Project, says, “The decision walks back nearly a decade of U.S. nuclear weapons transparency policy.”

NYPD Accidentally Releases Documents on Facial Recognition Technology

A judge is ordering a FOIA requester to return 20 pages of documents on the NYPD’s facial recognition technology the police say they accidentally released.  The order, which said the agency “should be more diligent,” is the latest development in a two-year FOIA suit brought by the Georgetown Center on Privacy and Technology and that has already revealed “that anyone arrested by the NYPD is potentially subject to face recognition searches.”

The NYPD initially told researchers that they couldn’t find any responsive records to their request, but has now, two years and a lawsuit later, released nearly 4,000 pages of records. Also during the course of the suit, “The NYPD delivered a Powerpoint presentation on the department’s Facial Identification Section to people who paid $1,695 to attend a conference in Sept. 2018 — but then claimed the same information was too sensitive to disclose through the lawsuit.”

FOIA Request Sheds Light on Smollett Investigation  

A FOIA request from the Chicago Tribune won the release of thousands of texts and emails (but not internal files) from the Cook County State’s Attorney’s office on the investigation into Empire actor Jussie Smollett, who “had been indicted on 16 counts of disorderly conduct on charges he staged a hate crime attack on himself.” The majority of the documents don’t discuss the substance of the case or the decision to dismiss the charges against Smollett, “But they show that the office was largely caught flat-footed by the massive response from the news media to its own stunning reversal.” Assistant State’s Attorney and the lead prosecutor in the case, Risa Lanier, texted shortly after the charges were dropped, “Just wish I could have anticipated the magnitude of this response and planned a bit better!”

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U.S. Completes Historic Transfer of 47,000 Declassified Documents to Argentine Government: FRINFORMSUM 4/12/2019

April 12, 2019

The Archive’s Carlos Osorio poses with the CDs containing more than 40,000 declassified documents.

Declassification Diplomacy: Trump Administration Turns Over Massive Collection of Intelligence Records on Human Rights and Argentina

Today in a diplomatic ceremony hosted by U.S. Archivist David Ferriero at the National Archives, U.S. officials completed the turnover of some 7,500 CIA, FBI, DOD, NSC and State Department records—47,000 pages in total—to Argentina’s Minister of Justice and Human Rights, German Garavano. Ferriero said that reviewers worked for a total of 32,000 hours to complete the task, which began during the Obama administration and was completed under the Trump administration, and were able to release the documents 97% unredacted.

Intel.gov’s Argentina Declassification page

Garavano graciously thanked the Trump administration for fulfilling a formal request for the records by the Argentine government, made on the fortieth anniversary of the military coup during a state visit to Argentina by then-President Barack Obama. The National Security Archive’s Carlos Osorio delivered stirring remarks at the event, saying “The release of these documents stands as a uniquely valuable contribution to the cause of human rights, the cause of justice and the cause of our fundamental right-to-know.”

The National Security Archive posted a selection and analysis of 18 key documents from the release, as well as a timeline of Osorio’s 20-year effort to work towards the documents’ release. The records will provide a historical record that is highly likely to impact future efforts toward accountability in Argentina, provide long-awaited information for victims and their families, and advance the next generation of analysis and scholarship on the military era.

Left: a previously declassified, redacted version of an FBI report on the abduction and murder of two Cuban Embassy officers in Buenos Aires; right: The unredacted version released as part of the Argentina Declassification Project.

Classification Leaks Reach New Heights During Trump Administration

Justice Department data released in response to a FOIA request from Steve Aftergood shows that leaks of classified information that were reported as potential crimes have reached record highs in the Trump administration – 120 in 2017 and 88 in 2018. The Obama administration had an average of 39 leaks per year from 2009 to 2016, with the largest number, 55, coming in 2013. Aftergood notes that the released data poses several important questions, including how many leak referrals triggered an FBI investigation, and “whether the leaks are evenly distributed across the national security bureaucracy or concentrated in one or more ‘problem’ agencies (or congressional committees).”

Kissinger State Department Insisted that South Koreans Break Contract with French for Reprocessing Plant

South Korea’s bid to acquire nuclear weapons capability posed a complex challenge to the Ford administration during the mid-1970s, according to recently declassified documents published by the Archive. The South Korea case is of interest as one of several nonproliferation concerns at the time and for its illustration of the range of security, diplomatic, and political tests that have confronted different U.S. administrations in the nuclear sphere.

The new records, which were obtained from the U.S. National Archives through the Mandatory Declassification Review process, provide fresh details about Washington’s ultimately successful response, which was to press the Park Chung-hee dictatorship persistently to break a contract with France for a plant that could provide plutonium for a nuclear weapon.  According to one of the documents, the Koreans tried to argue that the proposed plant would not produce “weapons grade” plutonium, but the State Department countered that “normal reactor grade plutonium could be used in sophisticated bomb designs or … even in less sophisticated weapons.”

Is Our National Security Past Too Sensitive to Make Public?

On February 21 the Nonproliferation Policy Education Center held a conference discussing “Our National Security Past: Too Sensitive to Make Public?” with four expert presenters. William Inboden, Executive Director of the Clements Center for National Security at the University of Texas at Austin, addressed “The Perverse Incentives for Classification,” Richard Immerman, Director Emeritus at the Center for the Study of Force and Diplomacy at Temple University, remarked on “How the System of Declassification is Crashing,” Columbia University’s Robert Jervis addressed “What Factors Contributed to Ending the CIA’s 25-Year Document Review Program,” and Harvard’s Belfer Center’s William Tobey talked about “The Importance of Historical Documents for Current Policy Analysis.” The entire video can be enjoyed here.

Cyber Brief: IA Newsletter: The 1990s DOD Information Assurance Periodical

This week’s Cyber Brief highlights the Department of Defense Information Assurance Technology Analysis Center’s quarterly newsletter. Begun in 1997, its stated goal was to support U.S. information superiority efforts in accordance with the Joint Chiefs of Staff’s Joint Vision 2010 (JV2010) warfighting concept. The publication, which began in 1997, captures discussions and concerns about information security during and in the aftermath of events like Eligible Receiver 97Moonlight Maze, and Solar Sunrise.

TBT Pick – Carlos Osorio Human Rights Work Honored by Argentine Embassy

This week’s #TBT pick is a 2015 posting that highlights Carlos Osorio’s ongoing human rights work in Argentina. The posting commemorates a special award the Argentine Embassy gave Osorio in March 2015 for his work in providing critical documentary evidence and testimony to numerous high-profile trials in Argentina aimed at uncovering and prosecuting human rights violations by the military junta from 1976-1983. Argentine Ambassador Cecilia Nahon presented the award, which praises Osorio’s “contribution in the fight for human rights during the Argentine civic-military dictatorship.”

Addressing representatives from the international diplomatic community, Osorio described his work over the past 15 years to collect tens of thousands of U.S. government records and to provide evidence in various Argentine legal forums. He recounted testifying for two days only two weeks earlier in Buenos Aires before the tribunal judging the Operation Condor Case, and analyzing for 10 hours the contents of a hundred documents from sources as varied as the CIA, Defense Intelligence Agency, State Department, the Paraguay Archive of Terror, and the Chilean former secret police, DINA.

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