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Luis Posada Carriles, CIA-Created “Frankenstein”, Dies at 90, Obama Presidential Library Departure from NARA System, and Much More: FRINFORMSUM 5/24/2018

May 24, 2018

Carriles’s original Cuban passport and a State Dept. INR report to Kissinger on Carriles’s involvement in Cuban jet crash.

Luis Posada Carriles, CIA-Created “Frankenstein”, Dies at 90

CIA-trained Cuban exile and suspect in the 1976 Cuban jetliner bombing that killed all 73 people on board, Luis Posada Carriles, has died at the age of 90.

The National Security Archive’s Cuba Project Director Peter Kornbluh, who has fought for the release of U.S. documents to shed light on Carriles’s activities and provide historical evidence for his victims for over a decade, said of Carriles, “The CIA created and unleashed a Frankenstein.”

Below is a selection of the declassified record on Carriles and his crimes:

Visit the Archive’s Cuba Project page for more information.

Concerns and Opportunities Over Obama Presidential Library Model

The U.S. National Archives and Records Administration’s recent announcement that the Obama presidential center will be “opting out” of NARA’s presidential library system drew questions and concerns. While NARA spokespeople say the move is “mutually beneficial” and will better adapt to people seeking information in a digital age, MuckRock points out that many historians and members of the open government community see the move as “a blow to a functioning democracy.”

The Archive’s Nate Jones notes that, while the move raises questions about access to Obama’s records and the nature of NARA’s relationship to future presidential libraries and museums, that the current process for accessing historical records at NARA-run presidential libraries is “ludicrous and grossly inefficient.” Historians typically must file a FOIA request, then an MDR or two to receive the documents, and the entire NARA-run process can take a decade or more. There is an opportunity for the Obama museum to create a more efficient model for accessing historical records.

Yemen Strike Data Improvement but Not Enough

United States Central Command recently published its first public update on American airstrikes in Yemen since February. CENTCOM has conducted 27 counterterrorism strikes in the country this year, and while the update provides information on previously unacknowledged strikes, it only offers complete information on two strikes. Long War Journal notes that “Although the release of these details is an improvement, much more is required for adequate transparency. CENTCOM has not yet released the location, target, or even the exact dates of 24 of the 27 strikes conducted in 2018.”

FOIA shows Service Members Guarding Nuclear Sites Took, Sold LSD

The Associated Press obtained documents through the FOIA showing that service members guarding nuclear missiles at an Air Force base in Wyoming bought and distributed LSD and other drugs for months before being discovered. The documents “tell a sordid tale of off-duty use of LSD, cocaine and other drugs in 2015 and 2016 by airmen who were supposed to be held to strict behavioral standards because of their role in securing the weapons.” Fourteen airmen were disciplined in the scandal, six were convicted in court martials.

Olliver North. ILLUSTRATION BY GLUEKIT; PHOTO: ZACH D ROBERTS/ZUMA WIRE/ALAMY

Oliver North’s Theatrics May Offer Lessons for Trump and Michael Cohen

A Marine uniform weighted down by medals and stacks of telegrams from loyal supporters were just some examples of political theater Oliver North employed when questioned by Congress for his role in the Iran-Contra scandal. The Archive’s Iran project director, Malcolm Byrne, notes in a recent Newsweek article, that such tactics “could be far more effective than truth.”

Byrne also notes, however, that “North’s later experiences may be instructive for the current president, as well as his personal lawyer, Michael Cohen, now under investigation.” Byrne argues that the threat of prosecution can turn the loyalties of even the most devoted aides, and that an enthusiastic base of loyal supporters may not protect you from party retribution years down the road.

Want to know more about North’s role in Iran-Contra and criminal prosecution? Read the next president of the NRA’s Iran-Contra diaries, showing knowledge of Contra drug operations and readiness to collaborate with likes of Manuel Noriega.

The Nuclear Non-Proliferation Treaty and the Mexican Amendments: The Negotiating Record

The controversial Article VI of the Non-Proliferation Treaty, requiring “good faith” disarmament measures, arose from the “fear” by non-nuclear weapons states “of being frozen indefinitely into second class status,” according to newly declassified U.S. documents about the NPT negotiations posted recently by the National Security Archive to mark the Treaty’s 50th anniversary.

Article VI has been controversial partly because of conflicting interpretations over what it requires and perceptions that the nuclear weapons states have not taken positive action to live up to that commitment.

The documents illuminate the “second class status” concern that led the Mexican government, in September 1967, to propose a separate treaty article obliging disarmament action by the nuclear weapons states, along with other Mexican proposals that were critically important to building an international consensus for the NPT.

Cyber Brief: Israeli Cybersecurity

This week the National Security Archive’s Cyber Brief highlights documents on Israel’s cybersecurity proficiency. The document selections relate to Israel’s cybersecurity organization, policy, cooperation with the United States, and an FBI notice on a coordinated attack on Israeli and Jewish websites known as #OpIsrael.

TBT Pick – Things You Don’t Want to Find in Your Food

This week’s #TBT pick is chosen with recent reports (made possible thanks to Food and Drug Administration emails released through FOIA) that weedkiller linked to cancer was found in common foods, including but not limited to granola and cornmeal, in mind. This week’s #TBT pick is a 2016 posting highlighting a wide variety of news stories broken that year thanks to FOIA requests – including another FDA FOIA release, this time showing a cheese manufacturer was putting no parmesan in items labeled “100% parmesan,” but was occasionally including wood chips.

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Fact-Checking Haspel’s Nomination Hearing Against the Declassified Record: FRINFORMSUM 5/10/2018

May 10, 2018

The 1963 Kubark manual.

Fact-Checking Haspel’s Nomination Hearing Against the Declassified Record

PolitiFact reached out to the National Security Archive’s CIA expert John Prados to help fact-check key claims Gina Haspel made during her contentious nomination hearing to lead the agency.

Among the claims Prados debunked was Haspel’s assertion that the “CIA has historically not done interrogations.”

The executive summary of the Senate Intelligence Committee’s study on the CIA’s detention and interrogation program contradicts this when it specifically cites a 1963 CIA manual called the Kubark Counterintelligence Interrogation Manual. Kubark “included the ‘principal coercive techniques of interrogation: arrest, detention, deprivation of sensory stimuli through solitary confinement or similar methods, threats and fear, debility, pain, heightened suggestibility and hypnosis, narcosis and induced regression.'” Prados argues “It is poor history to say that the CIA never did interrogations. The manual cited in the Senate report was created for that purpose.”

Prados also highlights the case of “Soviet defector Yuri Nosenko, who was interrogated for several years at the hands of the CIA. Nosenko was handled ‘abusively enough’ that the agency would later give him a cash payment.”

PolitiFact also cites the Archive regarding Haspel’s exceedingly dubious claim that the 92 video recordings showing CIA personnel waterboarding detainees were destroyed to avoid a “security risk” to agents’ safety. But safety was not mentioned by the CIA at the time of the destruction. A declassified 2005 CIA email released to the National Security Archive shows the CIA thought “The heat from destoying [sic] is nothing compared to what it would be if the tapes ever got into the public domain.” There is no mention of security risks.

“the heat from destoying [sic] is nothing compared to what it would be if the tapes ever got into the public domain.”

Classification and redactions still cover key questions of Gina Haspel’s torture story. Among them are: whether she was still the chief of base when the Green site closed on December 4, 2002; did she supervise the November 27, 2002, waterboarding sessions of Al Nashiri; and did she ever object to the torture, or express any qualms?

An excellent collection and analysis of what is available can be found in a recent Archive posting.

More resources from the National Security Archive on the history of the CIA’s torture program and other activities can be found here:

CIA Email Accounts Designated for Permanent Preservation 

The U.S. National Archives recently approved the CIA’s Capstone email preservation schedule that will capture and preserve more than 426 CIA email accounts as permanent. The plan is a welcome change of pace from the agency’s more recent attempt to only preserve the emails of 22 senior agency officials. Public outcry eventually forced the CIA to withdraw the plan in 2016.

Of note for curious researchers: the agency’s NARA-approved plan states, “Traditional records management with a print-and-file policy was in place prior to the Capstone adoption. The Central Intelligence Agency has legacy classified and unclassified email for Capstone and Non-Capstone officials that will be dispositioned with this schedule. The Agency has classified email dating back to approximately 1995. The archive for email sent and received on the Agency’s unclassified network was deployed in December 2014. Searches of the unclassified archive have returned emails dating as far back as 2007.” (emphasis added)

EPA Political Aides take Aggressive Role in FOIA Reviews

A FOIA release from the Environmental Protection Agency to the Natural Resources Defense Council reveals an agency whose political aides are interceding in the FOIA review process for requests concerning EPA head Scott Pruitt beyond the norm. The released emails show “Pruitt’s aides chastising career employees who released documents about the administrator without letting them screen the records first. Meanwhile, several environmental groups say the agency has told them that political staffers’ document reviews have delayed releases past legal deadlines.” The Archive’s Nate Jones says the EPA’s current process “does look like the most burdensome review process that I’ve seen documented.”

The documents also show Pruitt’s chief of staff, Ryan Jackson, created a pilot program that was nominally intended to “centralize” FOIA requests that are processed by the Office of the Administrator’s sub-offices, but is practically intended to alert the political staff “about any requests anywhere at EPA that involved Pruitt.”

NRDC obtained the emails after filing a FOIA lawsuit.

Other EPA/Scott Pruitt FOIA news from the past few months that is worth highlighting:

The Guatemala Genocide Ruling, Five Years Later

Five years ago today, one of the most celebrated human rights trials in Latin America came to a stunning conclusion when Guatemalan dictator, retired army general, and self-proclaimed “president” Efraín Ríos Montt was convicted for genocide and crimes against humanity by a panel of three Guatemalan judges.

To commemorate that milestone, the National Security Archive is posting the groundbreaking ruling by the court that found Ríos Montt guilty. The Archive is also making a collection of declassified documents available that chronicle Washington’s unabashed support for the dictator at the height of his powers.

Get the story and read the documents here.

Cyber Brief: ODNI Statistical Transparency Reports

The National Security Archive’s Cyber Vault is highlighting the Office of the Director of National Intelligence’s report on the use of FISA orders and national security letters during CY 2017 this week. The posting includes the 2017 report as well as all previous reports back to statistics on calendar year 2013. These statistics are valuable in understanding the scope of and trends in government surveillance under national security authorities.

From United States v. Oliver L. North, Office of the Independent Counsel (OIC) Papers, National Archives & Records Administration, College Park, Maryland.

TBT Pick – The Oliver North File

This week’s #TBT pick is chosen with Oliver North’s recent ascension to the presidency of the NRA in mind. This week’s pick is a 2004 posting, which contains North’s Iran-Contra diaries, showing knowledge of Contra drug operations and readiness to collaborate with likes of Manuel Noriega. Documents include:

  • Mr. North’s diary entries, from the reporter’s notebooks he kept in those years, noting multiple reports of drug smuggling among the contras. A Washington Post investigation published on 22 October 1994 found no evidence he had relayed these reports to the DEA or other law enforcement authorities.
  • Memos from North aide Robert Owen to Mr. North recounting drug-running “indiscretions” among the contras, warning that a known drug-smuggling airplane was delivering taxpayer-funded “humanitarian aid” overseen by Mr. North.
  • Mr. North’s White House e-mails recounting his efforts to spring from prison a Honduran general who could “spill the beans” on the secret contra war, even though the Justice Department termed the Honduran a “narcoterrorist” for his involvement in cocaine smuggling and an assassination plot.

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Mulvaney Moves to Hide Important Consumer Complaint Database, DOD Again Tries for New FOIA Exemption, and More: FRINFORMSUM 5/3/2018

May 3, 2018

Mulvaney Moves to Hide Important Consumer Complaint Database

Mick Mulvaney, acting director of the Consumer Financial Protection Bureau, is trying to take a database intended to hold financial institutions accountable offline, ending the public’s ability to file and view complaints. The database (tagline: “How one complaint can help millions”) is currently available here. Americans have filed more than one million complaints through the database, helping regulators decide which firms need to be investigated.

Mulvaney, who sponsored legislation to abolish the CFPB during his time in Congress, justifies the move by citing unproven potential harm to businesses. He also recently told a room of bankers and lobbyists at the American Bankers Association that he thought he could successfully make the case “that having a database that is publicly facing, but is not completely vetted, is probably not consistent with our overall mission.”

The National Highway Traffic Safety Administration and the Consumer Product Safety Commission maintain similar public complaint databases.

The National Security Archive joined a coalition of consumer, civil rights, and open government groups in calling on Acting Director Mulvaney to “direct the CFPB to maintain the database with no change.”

CBP Tries to “Unmask” @ALT­­­_uscis

A Freedom of Information (FOIA) lawsuit brought by the Reporters Committee for Freedom of the Press (RCFP) is compelling Customs and Border Protection (CBP) to release hundreds of pages of documents on its unsuccessful attempt to “unmask” the identity of Twitter users maintaining an account critical of the agency and the Trump administration’s immigration policy. In March 2017 CBP sent Twitter a summons “ordering the company to provide certain records relating to the @ALT_uscis account, including user names, account login, phone numbers, and mailing and IP addresses.” Twitter filed suit, arguing the summons violated its First Amendment rights, prompting CBP to withdraw its summons and Twitter to voluntarily dismiss its claims.

RCFP filed a FOIA request after CBP withdrew its summons. “The request also includes all records, including guidelines and directives, that discuss any laws CBP could use to compel the production of records to unmask the identity of people using databases, social media, and other software, as well as any records discussing laws that would allow someone who receives a summons to object to compliance with such summons.” RCFP filed suit after CBP failed to respond in the statutory time-frame and withheld records without listing the exemptions used to justify the withholdings.

The first release of responsive documents can be read here, here, here, and here. CBP is required to process 500 pages in response to the suit every 30 days.

George Mason University Investigates Koch Brothers “problematic gift agreements”

A FOIA request sent to George Mason University (a public university in Northern Virginia) has won the release of documents that raise questions about the nature of donor contributions to the university’s economics and law schools. The documents show the Charles Koch Foundation “had been given a voice in hiring and firing professors.” GMU president Angel Cabrera announced shortly after the documents’ release – and the ensuing media coverage – that she was ordering an inquiry into the “problematic gift agreements.”

The Koch Foundation released a statement in defense of their gift practice saying, among other things, that the foundation hadn’t been allowed to make final appointments – only to recommend candidates.

(Curious about whether you can file a FOIA request with a university? MuckRock has a good primer here.)

National Security Archive Sues CIA for Gina Haspel Torture Cables

The Archive has filed a FOIA lawsuit against the CIA in federal district court seeking 12 specific cables from November and December 2002 that were authored or authorized by Gina Haspel, the acting director of the CIA as of last week. The cables describe the torture of a CIA detainee under her supervision.

The Archive filed a FOIA request with the CIA for the 12 cables on April 16, 2018 and sought expedited processing, which must be granted to requests with a “compelling need…made by a person primarily engaged in dissemination information [with] urgency to inform the public concerning actual or alleged Federal Government activity.”

The CIA denied the Archive’s request for expedited processing, arguing that the request was not “made by a person primarily engaged in dissemination information.” In the same letter, the CIA granted the National Security Archive “news media fee status.”

DOD FOIA Exemption REDUX

The Defense Department is seeking – for the fourth time – a new FOIA exemption that would withhold unclassified military, tactics, and techniques.  The proposed language is vague and raises concerns that the exemption could potentially be abused to justify withholding much of the information created by the DOD. The proposal also raises the questions: 1) why the unclassified material that the DOD is attempting to withhold cannot be classified and withheld under FOIA’s exemption 1 that already shields “properly classified” national security information; and 2) why the DOD continues to propose the exemption without input from the congressional committees that oversee FOIA?

Chicago PD’s Gang Members Database Needs an Overhaul

The Chicago Tribune won the release of the Chicago Police Department’s gang members database through a FOIA request. The database, which is shared with other law enforcement agencies, contains 128,000 names and, according to criticisms, is replete with inaccuracies, outdated information, and is racially skewed. After a series of public meetings held by the Chicago Inspector General and complaints that people aren’t notified when they are added to the list or able to appeal to be removed, the Chicago Police Department announced that it would make changes to the database.

Cyber Brief: North Korean Cyber Operations

This week the National Security Archive’s Cyber Vault’s Cyber Brief entry highlights North Korean cyber-operations. This brief includes remarks by James Clapper on cyber-deterrence and North Korea given while he was Director of National Intelligence, a significant report by Kaspersky Lab on North Korea-linked advanced persistent threat (APT) group Lazarus, a letter from Congress to Treasury Secretary Steven Mnuchin expressing concern over Lazarus cyber-operations targeting banks in 18 countries, an alert by the US Computer Emergency Response Team (US-CERT) on North Korean botnet activity, and a Congressional Research Service brief on North Korean capabilities in cyberspace.

TBT Pick – US Nuclear Weapons on Chichi Jima and Iwo Jima

This week’s #TBT pick is a posting from 1999 highlighting new information about U.S. nukes in “non-nuclear” Japan during the 1950s and 1960s. The authors – including the Archive’s Nuclear Vault director William Burr – “conclude that though the United States technically abided by Japan’s ‘non-nuclear’ principles, the non-nuclear status of the country was fundamentally undermined.”

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Gina Haspel’s CIA Torture File, Potential Changes to DOD’s MDR Process, and More: FRINFORMSUM 4/26/2018

April 26, 2018

Gina Haspel’s CIA Torture File

The Trump administration’s nominee to be CIA director, Gina Haspel, personally supervised the torture of a CIA detainee in 2002 leading to at least three waterboard sessions, subsequently drafted the cable that ordered destruction of the videotape evidence of torture, and served as a senior CIA official while the Agency was lying to itself, Presidents George W. Bush and Barack Obama, the Congress, and the public about the effectiveness of torture in eliciting useful intelligence, according to declassified documents posted today by the National Security Archive.

The documents include a new and less-redacted version of the CIA Inspector General’s report from 2004, repeated references in the declassified Senate Intelligence Committee torture report to Ms. Haspel’s tenure as chief of base of the CIA black site (“Detention Site Green” in Thailand) in 2002, and other CIA documents on the shyster shrinks, James Mitchell and Bruce Jessen, whose torture program Ms. Haspel supervised in November 2002 and supported through multiple senior CIA positions until President Obama ended the torture program in 2009.

Read the full story and the documents here.

DOD’s Latest “Homeland Defense” Guidance Critical of Use of Classified Information Systems

The Joint Chiefs of Staff issued new guidance “on cyberspace operations, unmanned aerial systems, defense support of civil authorities, and even a bit of national security classification policy” last week. Steve Aftergood points out an “odd editorial remark” in the guidance that faults the DOD itself for over-relying on classified information systems, on which it stores both classified and unclassified information. The guidance correctly argues that the practice inhibits transparency and information sharing.

Change to MDR Process at Pentagon Coming?

A bill introduced by Rep. Mac Thornberry, R-Texas, should be monitored carefully by open government advocates and historians. The bill proposes eliminating the Defense Department’s Washington Headquarters Service Agency, the entry point for Mandatory Declassification Review requests for many DOD agencies including the Office of the Secretary of Defense. The bill aims to drastically cut spending at the agency, as much as 25 percent, and does not address how WHS functions – like MDR and FOIA processing – would be relocated.

Corruption at Customs and Border Protection

Thirteen Customs and Border Protection officers have been arrested on corruption-related charges since the beginning of the Trump administration, according to FOIA-released records obtained by the Project on Government Oversight (POGO). The charges range from “drug smuggling to bribery to theft to sharing top-secret government data” and add to the growing list of over 200 CBP employees who have been arrested since 2004. Drug smuggling is the most common charge levied against CBP employees under the Trump administration. Of the more than 200 CBP employees arrested, 52 were removed or fired, with two being later reinstated, and 124 resigned.

EPA Removes FOIA-Released Documents from Online Portal after Critical News Coverage

The Union of Concerned Scientists reports that FOIA-released records show that a new Environmental Protection Agency policy “would restrict the agency’s ability to use the best available science in decision-making is driven by politics.” The FOIA release also demonstrates that EPA officials were more concerned about releasing industry trade secrets than personal information when responding to FOIA.

The documents – 124 of them – were released in response the UCS’s FOIA requests were and posted by the EPA on FOIAonline. But the EPA removed the documents three days later after extensive reporting on the policy, claiming concern about personal privacy and attorney-client communications. In his coverage of the story Scott Hodes reminds that, “whenever there is a controversy about publicly released documents, it’s always a standby position for agency officials to say the word privacy in their reason to block public dissemination of documents.”

UCS posts more than 100 of the 124 documents here.

My Dear Fidel

The Archive’s Peter Kornbluh’s remarkable telling of the love affair between Fidel Castro and ABC’s Lisa Howard, and its impact on US-Cuba relations, is this month’s Politico Magazine cover story. After the CIA obtained “disturbing” intelligence reports that Fidel Castro had threatened to shoot down US reconnaissance planes in retaliation for the Coast Guard seizure of four Cuban fishing boats, Howard secretly traveled to Cuba to convey a US government warning to Castro, and returned with his assurances that “nothing will happen to our planes, and that we do not need to send him any warnings” – a message passed through UN Ambassador Adlai Stevenson directly to President Johnson.

The documents behind the Politico piece, including Howard’s personal papers, show how “intimate diplomacy” helped resolve a potential crisis with Cuba in mid-1964, are published on the Archive’s website.

Cyber Briefing: NIST Framework for Critical Infrastructure Cybersecurity

This week the National Security Archive’s Cyber Vault highlights the newest iteration of the National Institute of Standards and Technology’s critical infrastructure cybersecurity framework. The “Cyber brief” includes this document (Version 1.1), two developmental drafts with comments, a summary of a workshop held on the framework, and the first edition (Version 1.0) accompanied by two presentations on the framework. This collection of documents highlights the work of a key contributor to cybersecurity policy that is not considered to be part of the national security apparatus by most of the public.

TBT Pick – Is Kanye/Trump the New Elvis/Nixon?

This week’s #TBT pick is chosen with Kanye West’s recent Twitter proclamation that “the mob can’t make me” not love President Trump In mind (Trump tweeted back: Very cool!). Kanye isn’t the first music star to gush about a president – the most famous is probably Elvis’ fondness for President Nixon. The bizarre photo of the two men together on December 21, 1970 was at one point the most requested photo reproduction from the US National Archives. According to a National Security Archive posting:

The meeting was initiated by Presley, who wrote Nixon a six-page letter requesting a visit with the President and suggesting that he be made a “Federal Agent-at-Large” in the Bureau of Narcotics and Dangerous Drugs. The events leading up to and after the meeting are detailed in the documentation and photographs included here, which include Presley’s handwritten letter, memoranda from Nixon staff and aides, and the thank-you note from Nixon for the gifts (including a Colt 45 pistol and family photos) that Presley brought with him to the Oval Office.

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FOIA Federal Advisory Committee Recs Will Help Agency FOIA Shops Pass “Common-Sense Test”: FRINFORMSUM 4/19/2018

April 19, 2018

Senator Leahy expresses disbelief at OIP’s insistence that 508 should hold up posting documents online.

FOIA Federal Advisory Committee Recs Will Help Agency FOIA Shops Pass “Common-Sense Test”

An incredulous Senator Chuck Grassley told the Justice Department Office of Information Policy’s Melanie Pustay this Sunshine Week that her defenses of lackluster government-wide FOIA performance didn’t pass “the common-sense test.” OIP’s support of agencies who claimed 508 compliance concerns were a valid reason for agencies to hesitate posting documents online – or, worse yet, an excuse to remove documents currently published on government websites – was one such “common-sense test” failure for Grassley and Senator Patrick Leahy.

At their most recent meeting the FOIA Advisory Committee took the first tangible step to help agencies navigate 508 compliance concerns. The committee approved 37 recommendation, including encouraging agencies on 508 to, instead of either not posting documents or even removing previously posted documents, “remediate documents that are not currently 508 compliant” and “ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.”  The Committee also recommended that agencies familiarize themselves with the Rehabilitation Act’s “undue burden provision” that allows agencies to post electronic documents that are not Section 508 compliant if rendering them compliant would “impose an undue burden” on the agency.

The committee’s other recommendations include “expanding the use of tracking records, allocating resources for agency IT experts to work with FOIA officials for electronic searches, creating rotational career programs to get younger employees into FOIA, plus using interns or temporary staff for time-consuming tasks such as data entry.”

Border Wall Contractors Under Scrutiny thanks to FOIA Work

A Project on Government Oversight investigation, informed in part by FOIA-released records, show that half of the contractors that built border wall prototypes had shaky track records, including one that the Army Corps of Engineers felt in 2014 “was too risky to do future business with.” The contractor, Caddell Construction, was investigated by the Army for defrauding the government across multiple contracts. The Corps recommended that the Army’s Procurement Fraud division debar Caddell.

The border wall contracting process was also the subject of a separate USA Today FOIA investigation, which in 2017 shed light on the “unusually confusing and haphazard process” of contractors bidding to build border wall prototypes. Nearly 200 pages of Customs and Border Protection (CBP) documents revealed communications with companies seeking clarity on a rushed, murky bidding process that initially only gave companies 12 days to submit proposals for 30-foot high prototypes that could lead to a $300-million five-year contract.

Scott Pruitt has 4 EPA Emails – 3 Don’t Follow the EPA’s Conventional Format

The chair of the Senate Environment and Public Works Committee, John Barrasso, is looking into Environmental Protection Agency head Scott Pruitt’s use of four government email addresses. The multiple emails – “three of which do not follow EPA’s conventional format” – raise concerns that the emails are not being properly searched in response to FOIA requests. A spokesperson for Pruitt insists that all emails are searched in response to FOIA.

Read about Pruitt’s other FOIA woes here.

DOD Secrecy Goes Beyond Limiting Access to the Media

Rep. Mike Gallagher (R-WI) recently noted at a House Armed Services Committee hearing that while transparency is “needed now more than ever,” there have been multiple instances in the last few months “where the [military] services have sought to be more guarded in their transparency and accessibility to the media.” DOD Secretary Jim Mattis hedged on the issue, saying that while he wants continued engagement with the media, he doesn’t want officials speaking on the condition of anonymity, further saying “What I don’t want is pre-decisional information, or classified information or any information about upcoming military movements or operations, which is the normal lose lips sink ships kind of restriction.”

The secrecy, however, goes beyond withholding pre-decisional information and speaking less frequently with the media. Steve Aftergood highlights that “Last week, for example, DoD published its regular quarterly report for December 2017 on the number of US troops deployed abroad — but now with the number of troops in Iraq, Syria and Afghanistan deleted.”

US Yet to Release Docs on Ayotzinapa Forced Disappearances

A new report sheds light on the forced disappearance of a group of 43 students from Ayotzinapa, Guerrero in 2014. The report, published in the Mexican newspaper Reforma and by Kate Doyle in a recent blog post, “describes a series of text messages sent in the hours and days following the students’ disappearance between Mexican drug traffickers based in Chicago and their criminal partners operating inside Mexico. US drug enforcement agents obtained the messages through electronic intercepts during a 15-month narcotics investigation in northern Illinois and subsequently provided them to the Mexican government.”

The National Security Archive and Doyle have filed dozens of FOIA requests for records relating to the forced disappearance, but the U.S. government has yet to declassify any relevant records.

John Moss

John Moss’s Transparency Legacy

The Archive’s FOIA Project director Nate Jones and Michael R. Lemov, former Commerce Committee counsel for Congressman John Moss, recently joined forces to pen an excellent retrospective on FOIA’s founding father, John Moss, and the worldwide implications of the US’s landmark transparency law. The article originally appeared in the Southwestern Journal of International Law, Volume 24.

Cyber Brief: FBI and the San Bernardino iPhone, Cyber News

This week’s Cyber Brief highlights the March 2018 report from the DOJ Inspector General on the FBI’s statements on its ability to break into the iPhone of Syed Rizwan Farook, one of the attackers killed in the San Bernardino terrorist attack. This report was issued in response to allegations that the Operational Technology Division in fact had acquired the capability to unlock the iPhone but did not use it in order to support planned Congressional testimony on the encryption debate. The OIG report found, however, that the Operational Technology Division did not have the capability at the time of the Congressional testimony in question.

Steve Aftergood has an interesting article on the National Security Agency’s declassification of a redacted version of the table of contents of the first three volumes of the classified journal on cybersecurity, the Journal of Sensitive Cyber Research and Engineering (JSCoRE). Aftergood notes, “one title that NSA withheld from release under FOIA was publicly cited in a Government Accountability Office report last year:  ‘The Darkness of Things: Anticipating Obstacles to Intelligence Community Realization of the Internet of Things Opportunity,’ JSCoRE, vol. 3, no. 1 (2015)(TS//SI//NF).”

Talking points written by Libby for White House Press Secretary Scott McClellan.

TBT Pick – The Scooter Libby File

This week’s #TBT pick is chosen with Donald Trump’s recent pardoning of former Vice President’s Chief of Staff, Scooter Libby, who was convicted on four counts for his involvement in the leaking of the covert identity of CIA officer Valerie Plame Wilson, in mind. This week’s pick is a 2007 posting of The Scooter Libby File, which examines the declassified documents introduced as evidence during the Libby trial provide an almost unprecedented window into Mr. Cheney’s own role as the most powerful vice president in history. The Archive’s director Tom Blanton discussed the documents and their historical context with NPR’s Morning Edition.

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John Moss and the Roots of the Freedom of Information Act: Worldwide Implications

April 17, 2018

By Michael R. Lemov* & Nate Jones**

This article originally appeared in the Southwestern Journal of International Law, Volume 24.

INTRODUCTION

John Moss

John Moss was an obscure Congressman from a newly created district in northern California when he arrived in Washington D.C. in 1953.1 He had survived a razor-thin general election victory (by about 700 votes), which included unfounded charges of being a communist, or a communist sympathizer.2 Those charges became an important force behind Moss’s long battle to enact the Freedom of Information Act.

Except for an 18th century Swedish law and a similar information law in Finland in 1951, the U.S. Freedom of Information Act (“FOIA”) was the first open government law in the world.3 During the twelve years it took John Moss to win enough Congressional votes to pass the bill, he endured intense political opposition, faced a veto threat from a president of his own party, and overcame fierce opposition from executive branch agencies.4

When President Lyndon Johnson signed the Freedom of Information Act into law on July 4, 1966, Moss did not receive a pen from the president, nor was there any signing ceremony.5

Since 1966, more than 117 nations have passed government information laws.6 Congress has amended and refined significant sections of the U.S. law several times, generally improving access in areas where Moss had to compromise in order to win its original passage.

I. MOSS AND THE CONGRESS

When Moss first arrived in Washington, D.C. there was a poisonous political atmosphere in the city.7 Senator Joseph McCarthy was riding anti-communist fears that he helped arouse and that propelled him to great influence in the U.S. Senate and in the nation.8 The House Un-American Activities Committee was making headlines, with its endless investigations of security risks, Russian spies, and alleged disloyalty in dozens of government agencies and American industries.9

President Harry Truman issued an Executive Order establishing an administration Loyalty Program.10 It directed Truman’s attorney general to compile a list of communist organizations and “front” organizations and to investigate the loyalty of federal government employees.11 Based on the results of these investigations, the targets could be fired from their government jobs, prosecuted, and made virtually unemployable.12 They faced public condemnation and personal humiliation in the process. People investigated under the Loyalty Program were not allowed to confront their accusers or see the charges against them, often based on hearsay evidence that was held in secret files compiled by the Federal Bureau of Investigation.13

United States Court of Appeals Judge Henry Edgerton wrote an opinion concerning the firing of one such government employee: “Without trial by jury, without evidence, and without even being allowed to confront her accusers or to know their identity, a citizen of the United States has been found disloyal to the government of the United States.”14 Edgerton found the discharge proceedings to have been unconstitutional.15 “Whatever her actual thoughts may have been,” he wrote, “to oust her as disloyal without trial is to pay too much for protection against any harm that could possibly be done.”116

Edgerton was the lone dissenter on the federal Court of Appeals. The court affirmed the employee’s firing from government service.17 The United States Supreme Court divided evenly in reviewing the case, four to four, thus upholding the legality of the Truman Loyalty Program and its attendant government secrecy.18

Moss knew about the McCarthy approach, having been a target of similar charges in his California campaigns for both the state assembly in 1949 and, in 1953, for Congress.19 He survived the attacks. He did not forget them. His long campaign to secure freedom of information was grounded, in part, on his anger at being faced with such potentially devastating charges based on unsubstantiated claims against him.

Moss’s information battle was also based, coincidentally, on his assignment to a very obscure congressional committee that had legislative responsibility only for federal civil service and post office employees.20

When he took his seat in Congress in January 1953 representing California’s new Third Congressional District, there was no evidence that limiting government secrecy and providing the public and the press with access to government records would be causes he would champion for twelve long years—and in fact, for the rest of his life.21 Perhaps because of Moss’s independent views on several such issues, he later said, “By all that was holy, I was destined to be a onetermer.”22

Read more…

Transcripts of intercepted cell phones open new lines of investigation in Ayotzinapa case

April 16, 2018

Reforma front page

Mexican investigators have obtained dramatic new leads on the 2014 forced disappearance of a group of 43 students from Ayotzinapa, Guerrero, according to an article in the Mexican newspaper Reforma.

The report, published April 12, describes a series of text messages sent in the hours and days following the students’ disappearance between Mexican drug traffickers based in Chicago and their criminal partners operating inside Mexico. US drug enforcement agents obtained the messages through electronic intercepts during a 15-month narcotics investigation in northern Illinois and subsequently provided them to the Mexican government.

According to the article, the Blackberry chats sent by members of the criminal gang Guerreros Unidos (United Warriors) in Chicago – where they ran a drug distribution ring – revealed they were issuing orders and monitoring developments shortly after fellow gang members in Iguala, Guerrero, joined local police to attack the students on the night of September 26 and morning of September 27, 2014.  The messages contain new details about the events, including the names of gang members involved, the demands of the Chicago bosses that municipal police from neighboring towns participate, and their orders that the Guerrero prosecutor and other state officials intervene to support them.

The texts do not reveal the fate or whereabouts of the missing students.

When the students were abducted, the crime sparked outrage and grief around the world. At the time, the young men had left their rural school for teachers in Ayotzinapa and were traveling in buses to Mexico City to take part in an annual demonstration commemorating the 1968 student massacre in Tlatelolco. As the buses passed through the town of Iguala, local police and Guerreros Unidos gang members stopped the vehicles and savagely attacked the students. At least six people were killed during the melee and 43 young men were forcibly taken away.

Since then, the families of the students, their lawyers, and national and international human rights groups have demanded the return of the missing men and the arrest of the perpetrators. But from the very beginning, the government of President Enrique Peña Nieto appeared unable or unwilling to mount a serious investigation. His attorney general’s botched theory of the case, along with evidence of possible government complicity in the crime, led in 2015 to the appointment by the Inter-American Commission on Human Rights of five international experts to assist in the inquiry and provide support and liaison to the families.

Interdisciplinary Group of Independent Experts (GIEI)

It was the Interdisciplinary Group of Independent Experts (GIEI, by its Spanish acronym) that discovered the existence of the 2014 indictments against Guerreros Unidos members in Chicago. The experts obtained the complaint affidavit filed with the Office of the US Attorney in the Northern District of Illinois, which contained clues about what might have happened in Iguala to provoke such a savage attack on the students. According to the complaint, the US-based gang members used commercial passenger buses to smuggle cocaine and heroin into the United States and ferry their cash proceeds back to Mexico, using special compartments they built to hide them. The buses came from the state of Guerrero.

The experts theorized that the students may have inadvertently taken one the buses used by the traffickers to conceal and move their drugs. In their first progress report, issued in September 2015, GIEI recommended that Mexico request the transcripts of cell phones listed in the complaint that were active on or around September 26-27, 2014. But according to the group’s second and final report (April 2016), Mexico fumbled the request to the United States at least twice, delaying the process in a way the group called “incomprehensible.”

GIEI’s first progress report.

Thus the appearance of the cell phone messages two and half years after GIEI’s report serves as the very delayed response by President Enrique Peña Nieto’s government to their recommendation.

Some of the messages contain fleeting but vivid references to the students in coded language. On the afternoon of September 27, a trafficker known only by his alias, “Silver,” received a report from someone called “Aníbal”: “It’s just that they’re hauling 60 packets [a reference to detained-disappeared persons] under guard and others among them are with San Pedro [dead], and on this side there are only wounded…

The text is striking because it directly contradicts a key element of Mexico’s flawed theory of the case. The government has always contended – and continues to maintain, despite overwhelming evidence to the contrary – that after being pulled off the buses, the students were taken to a garbage dump in nearby Cocula town in the early morning hours of September 27, where they were killed immediately, their bodies burned to ash and bone in a great conflagration. GIEI, the Argentine Forensic Anthropology Team, and international fire experts have refuted the government’s assertion. The newly released text indicates the students were still alive in the afternoon of September 27, hours after the government claims they had been executed.

Reforma’s article – based on access to the transcripts given to reporter Roberto Zamarripa (presumably by the Mexican government) – describes the violence against the students as the result of a mistaken belief on the part of the local Guerreros Unidos that the buses carried members of a rival gang called Los Rojos, which sought to seize control of Iguala and its lucrative drug trade by force. In one text, “Silver” orders his Iguala counterpart to get help from state officials to “move against the vehicles.” A character identified as “Soldier of Love” responds from Mexico, “They’re gonna close off all the entrances [to the town].”

Some of the gang members chatting appeared to be taken aback by the magnitude of the incident. A week after the attack, Pablo Vega, one of the criminal leaders in Chicago, comments in a text to “Cobra” that there were “50 young guys disappeared.” “Cobra” replies: “Shit. So many …. But, where did they put them all? So many.”

Although the reported cell phone chats contain tantalizing leads that may be helpful in expanding the investigation, they leave many aspects of the case still unknown and unexplained. For example, they do not appear to reference the Mexican military or the federal police, both of which were present that night and played roles in monitoring the students as they traveled in the buses toward Iguala, communicating with each other and with local police about their progress, and observing the violent events of that night and the following morning without intervening.

In a press release published after the article, human rights organizations – including Centro Prodh, whose lawyers represent the families of the missing students, and the Guerrero-based Tlachinollan – called on the government to exploit the new information to revive its investigation into the case. The groups also highlighted what they considered to be some of the most important revelations raised by the texts.

First, the messages make clear that far from being a provincial criminal gang, Guerreros Unidos had international reach, shipping cocaine and heroin from southern Mexico to a major city in the northern United States. That new perspective on the group’s operations complicates Mexico’s characterization of the attack as a limited, local struggle and raises the possibility that the violence that night may have reverberated well beyond Guerrero and had broader impact for the gang and its corrupt government allies.

Second, the reported texts put an end to the suggestion – made by some commentators and government officials – that the students were “infiltrated” by narcos (thereby bringing their grief upon themselves). There are several points in the chats, as reported by Reforma, where Chicago gang members express surprise and disapproval (because it will be bad for business) that the students were targeted. Nowhere do they link the missing young men with their own criminal activities.

In Mexico, the government’s credibility on the Ayotzinapa case was shattered long ago. As the group of experts documented in their second and final report, the Peña Nieto investigation into what happened to the 43 students has been marred by dishonesty, delay, and the destruction of evidence. Mexico should use the intercepted phone messages to steer the course of its investigation into more credible waters, immediately.

From NSArchive: Prelude to Iguala

The United States also has a role to play. Although the National Security Archive has filed dozens of Freedom of Information Act request on the Ayotzinapa case, the US government has yet to declassify and release the relevant records. Our attempts to clarify exactly when the United States released the Chicago transcripts to Mexico and in what form have also gone unanswered.

Beyond declassifying documents that might shed light on the events, the US government could support the case by providing investigators with additional information about the operations of Guerreros Unidos in the United States. If the tragedy in Iguala is understood within the context of transnational criminal operations and widespread corruption in Mexico (instead of as a local, limited accident of mistaken identity), perhaps the scope of the investigation will open wide enough to get to the bottom of what happened – and clarify why the Mexican government has been so determined to cover it up.

Weeks after the students disappeared, as the government swept up dozens of gang members and police suspected of participating in the attack, Pablo Vega in Chicago lamented in a message to someone called “Spider Woman,” “As long as the guys are missing, they [the arrests] will continue.

“Spider Woman” replied: “It would be so easy just to say where they are.”