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Rumsfeld Memos Won by NSArchive Play Key Role in “The Afghanistan Papers”: FRINFORMSUM 12/13/19

December 13, 2019

Rumsfeld Memos Play Key Role in “The Afghanistan Papers”

Donald Rumsfeld’s “snowflakes” – memos that the former Secretary of Defense was as fond of sending subordinates as President Trump is of tweeting – play an important role in the Washington Post’s massive exposé on the Afghanistan war, The Afghanistan Papers. The series draws on both “lesson learned” interviews conducted by the Special Inspector General for Afghanistan Reconstruction, as well as Rumsfeld’s “snowflakes” that were obtained by the National Security Archive and provided to the Post (both the interviews and the snowflakes were obtained through FOIA lawsuits).

Several of the snowflake highlights include:

  • An April 17, 2002 snowflake, Subject: Afghanistan, in which Rumsfeld states “We are never going to get the U.S. military out of Afghanistan unless we take care to see there is something going on that will provide the stability necessary for us to leave. Help!” (From “At War With the Truth”)
  • An October 21, 2002 snowflake, Subject: Meeting with President, that shows Afghanistan had become an after-thought as the George W. Bush administration plodded towards the invasion of Iraq. Rumsfeld asked the president if he wanted to meet with Army Lt. Gen. Dan McNeill, who had been the commander of US forces in Afghanistan for six months. “He said, ‘Who is General McNeill?’ I said he is the general in charge of Afghanistan. He said, ‘Well, I don’t need to meet with him.’” (From “Stranded Without a Strategy”)
  • An April 1, 2002 snowflake, Subject: Warlords, that would be a harbinger for US-sponsored corruption among Afghan warlords. Rumsfeld writes, “It seems to me the interagency group ought to have a plan for how we are going to deal with each of these warlords – who is going to get money from whom, on what basis, in exchange for what, what is the quid pro quo, etc.” On June 26, 2002 Rumsfeld followed up with the question, “Is the DoD giving any food, weapons or money to any of the warlords or to Karzai? Is the CIA doing that? Is State doing it? How are the donor funds coming in? We need to get a sense of the balance.” (From “Consumed by Corruption).

NDAA Declassification Provisions

Two provisions of the House-Senate conference version of the FY2020 National Defense Authorization Act could be good news for researchers (thanks to Steve Aftergood for highlighting them in his Secrecy News blog). The first provision would require the Defense Department to plan how it will meet its declassification requirements, including for “legally mandated historical declassification, and reduce its backlog. (Language in the House bill that would have required similar reports from the State Department and the CIA were dropped from the final bill.) The well-meaning provision is not accompanied by any new funding for declassification or development of new technologies, however, and does not specify what happens if the DOD fails to meet its goals.

The second provision requires the DOD to produce an unclassified report on nuclear weapons programs in the US, China, and Russia. This is a welcome development after the DOD stopped releasing the current size of the United States’ nuclear stockpile, which it had been releasing annually since 2010.

While the declassification provisions are welcome, other components of the NDAA are not. The Reporters Committee’s Melissa Wasser writes that the expansion of the Intelligence Identities Protection Act “could indefinitely criminalize the disclosure of the identity of ‘covert agents,’ regardless of whether the disclosure would present a risk of harm.” In July, the National Security Archive joined Reporters Committee and 27 other open government groups asking Congress to remove the provision criminalizing reasonable disclosure.

The House voted to pass the NDAA on December 12, sending it to President Trump for a likely signature.

Trapped in the Archives: The U.S. Government’s System for Declassifying Historical Documents is in Crisis

The government’s processes for declassifying historical records are antiquated at best, and the entire system threatens to buckle under the weight of terabytes of incoming electronic records, this according to Archivist William Burr’s recent must-read Foreign Affairs article. Burr lays out a number of the systemic failures – from Congress not adequately funding key records management agencies, like the National Archives and Records Administration, to individual agencies compounding resource constraints with needless secrecy.

These problems, in addition to being a headache for requesters and FOIA processors, are bad for America’s self-governance. As Burr notes, “Declassification is vital to a thriving democracy. Not only does it help the public hold leaders accountable; it also allows for a more accurate and comprehensive accounting of the past… Only by unsealing its archives can the United States live up to its ideals as an open society and learn from its past.” And perhaps the best first step to unsealing the archives is for Congress to increase NARA’s budget; other suggestions include establishing advisory panels at key agencies like the Defense Department and CIA, requiring the DOD to create a centralized FOIA processing system, and forcing agencies to treat ISCAP declassification decisions as binding precedent.

New Digital National Security Archive Document Collection Covers US Policy toward Iran from 1978-2015

An extensive new Digital National Security Archive collection covering US policy towards Iran from the Carter through Obama years is now available! Most of the documents in the 1,761-document collection (produced with our partners at ProQuest) were obtained through FOIA and have never been published elsewhere.

The extensive breadth and depth of the set encompasses all major events of importance, such as Shah Mohammad Reza Pahlavi’s flight from Iran during the revolution which ultimately led to the 444-day hostage crisis, the Iran-Iraq war of 1980-1988 that continues to shape the narrative of Iran’s rulers, Iran’s explosive internal political scene during the 1990s, and the more recent post 9-11 landscape where terrorism and the nuclear issue have been the main drivers of global concern.

Nuclear Weapons and Ukraine: American, Ukrainian, and Russian Cooperation Eliminated World’s Third Largest Nuclear Force in 1990s

The global threats faced by the ICBMs, strategic bombers, and nuclear warheads that were left in Ukraine when the Soviet Union dissolved in 1991, were eliminated by cooperation between the US, Ukraine, and the Russian Federation – this according to declassified documents recently published by the Archive.

The documents detail the intensive trilateral diplomacy over Ukraine’s nuclear legacy beginning even before December 1991 and describe the vital role played by the Nunn-Lugar initiative. According to Tom Blanton and Svetlana Savranskaya, the posting also “directly addresses current narratives in all three countries that are historically misleading. In the U.S., the impeachment controversy features almost total amnesia about the extraordinary contribution to U.S. national security made by Ukraine’s decision to disarm, removing over 1,900 strategic weapons targeted on the U.S. In Russia, the new nationalist discourse dismisses the Nunn-Lugar cooperative threat reduction as forced disarmament, forgetting that the consolidation of the Soviet nuclear legacy in Russia directly served Russia’s security interests. In Ukraine, nostalgia for nuclear status is on the rise, fueled by the Russian annexation of Crimea and war in Donbas, while ignoring the enormous costs to Ukraine (diplomatic, financial, environmental, and more) had nuclear weapons been retained in the 1990s.”

Peter Kornbluh Interviews Chile’s Mónica González

The Archive’s Chile Documentation Project director, Peter Kornbluh, recently interviewed Chilean journalist Mónica González about the ongoing protests in Chile for The Nation. Chileans are protesting economic inequality (the country is one of the 20 most unequal in the world despite its economic prosperity), corruption, and an array of government abuses. Government forces have killed more than 22 people, blinded more than 200 with rubber bullets, injured more than 2,000, and arrested more than 6,000 since the protests began. Read the wide-ranging interview here.

ISCAP Releases NSSE Order

This week’s last item comes from FRINFORMSUM reader Austin Nolen, who recently received a previously-classified 2007 George W. Bush administration order on reforming National Special Security Event authorities from the Interagency Security Classification Appeals Panel (ISCAP). (NSSEs are events – like the upcoming Republican and Democratic National Convention – that the Department of Homeland Security deems important enough to be a potential target for terrorist or criminal activity.) As Austin notes, “The document references back to Bush HSPD 7, unclassified, which appears to be the first time the DHS Secretary received NSSE designation authority, which had previously been given to the [Attorney General] and Treasury when NSSEs were first created by Clinton in NSC-62.” Thank you very much to Mr. Nolen for making these available to Unredacted and its readers!

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New Digital National Security Archive Document Collection Covers U.S. Policy toward Iran from 1978-2015

December 12, 2019

Hostage Crisis

The National Security Archive, in conjunction with our partners at the scholarly publisher ProQuest, is publishing a new set of documents offering an unprecedented look into United States policy towards Iran from the Carter administration to the Obama years.

The extensive collection, U.S. Policy toward Iran: From the Revolution to the Nuclear Accord, 1978-2015, covers nearly four decades of a highly volatile relationship that continues to cause tremors in world politics. The extensive breadth and depth of the set encompasses all major events of importance, such as Shah Mohammad Reza Pahlavi’s flight from Iran during the revolution which ultimately led to the 444-day hostage crisis, the Iran-Iraq war of 1980-1988 that continues to shape the narrative of Iran’s rulers, Iran’s explosive internal political scene during the 1990s, and the more recent post 9-11 landscape where terrorism and the nuclear issue have been the main drivers of global concern. The set concludes by focusing on the landmark – albeit short-lived – JCPOA, the 2015 nuclear deal between Iran and the so-called P5+1.  This wide variety of mostly never-before-seen material considers the full range of issues that have divided the two countries since the revolution.

Many of the records in the 1,761-document collection have never been published elsewhere. Among the newly declassified materials in the set are documents on the 1980s Iran-Contra scandal that have not been widely available prior to this publication. The expertly-curated set also features other invaluable subsets, such as every available meeting summary of the Special Coordination Committee on Iran during the Carter presidency, every known record of telephone conversation between Gen. Robert Huyser (Carter’s envoy sent to Iran at the height of the revolution in early 1979 to assess the mood of the military) and the Pentagon, and every presidential Executive Order on Iran.

Many of the documents in this collection were obtained through Freedom of Information Act requests or from other relatively obscure sources. They include:

  • The State Department’s so-called “White Paper” (a previously classified internal history ordered by President Carter in anticipation of proceedings before the World Court)
  • Warnings from embassy staff in Tehran in mid-1979 regarding admitting the Shah to the United States for medical treatment
  • Documents relating to the aborted 1980 hostage rescue mission
  • The previously Top Secret version of the Holloway Commission report (investigating the rescue attempt)
  • Highly confidential, top-level memoranda from the Reagan and Carter administrations
  • A 1999 letter from President Clinton to President Khatami
  • A version of the 2003 “Road Map” memo from the Iranians, via the Swiss ambassador, conveying proposals for a comprehensive improvement of relations
  • A fascinating, formerly classified, internal study for the CIA assessing the failure to predict the Iranian revolution (with accompanying reactions from CIA staff)

Beyond the scope of U.S. Iran policy making, the set also includes materials relating to domestic political developments in each country, as well as the consequences for regional states such as Afghanistan and Saudi Arabia. These records will enrich those studying United States policy towards the Middle East, United States crises management, Iranian relations with Saudi Arabia and the Gulf Cooperation Council, and Iranian policies and actives in Afghanistan and Iraq, to name a few.

While covering a wide range of topics, this collection has avoided duplicating any materials from previous Digital National Security Archive publications on Iran, such as Iran: The Making of U.S. Policy 1977-1980, The Iran-Contra Affair: The Making of a Scandal, 1983-1988, Terrorism and U.S. Policy, 1968-2002, and U.S. Intelligence on Weapons of Mass Destruction: From World War II to Iraq. Documents from every principal agency involved in Iran policy are included. Additionally, the set features an array of hard-to-find Iranian source materials in the form of statements, interviews with officials, and occasional memoir accounts, as well as records from the British archives, and elsewhere.

Check out this new DNSA collection, or arrange for a free trial here if your library does not currently have a subscription.

 

Mexican Community Seeks Help in Mining Conflict

November 27, 2019

Pictures of the Peñasquito mining operation in Cedros, Zacatecas, courtesy of Red Solidaria.

by Olivia Mozdzierz

New York, November 26, 2019 – Representatives of a community of Mexican ejidatarios (communal landowners) from north-central Mexico met recently with the National Security Archive in our New York office to tell us about their ongoing struggle with a foreign mining company over land, water, and industrial pollution. They sought assistance from the Archive in gaining access to official information that could aid their campaign for attention, support, and redress from national authorities and global audiences.

The group from Cedros, a small, rural community in the Mexican state of Zacatecas that has been effectively taken over since 2006 by the U.S. Newmont Goldcorp polymetallic mine, told us that community members entered into a rental agreement with the mine without legal counsel and only later realized what they now view as the company’s predatory intent. According to news reports, the agreement provided 50,000 pesos to each ejidatario – or roughly $2,600 USD – for rent for 30 years. The sum amounts to about $85 per person, per year, for three decades of use of the land. Newmont Goldcorp stands to make hundreds of millions of dollars in profits.

Meanwhile, the environmental impact of the mine on nearby communities – including Cedros, El Vergel, Mazapil, and Cerro Gordo – has been devastating. The local water supply is reportedly heavily polluted and has caused skin and eye infections, as well as other illnesses. The Cedros team explained that people must now purchase their drinking water – a stark contrast for a region where communities drew their water from clean wells for hundreds of years. Agricultural land is also now polluted by the chemicals from the mines, damaging fields and making crops useless. According to the team and most media accounts, the mining company has failed to provide any real solutions or compensation for the damage.

On their October visit to the National Security Archive’s New York office, the Cedros group included Magdalena López Paulino from Red Solidaria Década contra la Impunidad, a national human rights and anti-impunity organization, along with local human rights advocates from Zacatecas and Coahuila, lawyers and community members. López Paulino explained that the Red Solidaria had scheduled meetings with the Inter-American Commission for Human Rights as well as non-governmental human rights groups, U.S. congressional offices, and the press to try to raise awareness about the abuses faced by residents of the affected area. (Read the call for Urgent Action by Red Solidaria here.)

In response to these abuses, Cedros community members have staged blockades and protests to demand the observance of their rights to land and health. They have effectively shut down the mine for months at a time twice during 2019. Recently, however, promises of help from the Zacatecas state government have given way to a harder line from the governor, resulting in the threat of police or military action against protestors as well as prosecution of community leaders. As a result, protesters were forced to abandon their latest blockade on October 27 and are now engaged in negotiations with Newton Goldcorp. They remain disillusioned by the company’s response.

Photographed (right to left): Kate Doyle, Felipe de Jesús Pineda Hernández, Juan Anastacio López López, Irma Judith García Ruíz, Ie Tze Rodríguez López, Karina López Puentes, Deeni Rodríguez López, María Magdalena López Paulino, Olivia Mozdzierz

Karina López Puentes, one of our visitors and a resident of the affected region, underscored the problem of corruption as one of the major obstacles they face, maintaining that “it is a very corrupt area, so despite the ongoing fight for change, nothing has been done. The community is looking for help, for people to listen and spread the word.”

Unfortunately, the situation in Cedros is an example of a much bigger issue throughout the region where the extractive industry has come into conflict with local communities. According to media accounts and NGO reporting, tensions are rising in Guatemala, El Salvador, and Nicaragua due to extraction operations. Governments tout mining as an economic boon to local communities, but this is seldom the reality. What is left out of this narrative are the severe environmental impacts, dislocations, and the fact that these mainly foreign mining companies generally outsource their labor.

On the western highlands of Guatemala, Huehuetenango has been the site of many intense, long-term battles over mining and hydroelectric dam projects. It has been reported that indigenous activists have been killed and community leaders detained for their protests and opposition to the projects. Similarly, in Nicaraguan gold mining areas of Santo Domingo, Limón, and Bonanza, community opposition is met with threats, intimidation, police repression, and criminal charges. By contrast, El Salvador stands out for new legislation to ban the practice of mining for metal, a law that is the first of its kind. Even with this legislation in place, local activists still worry that disputes over mining will arise again in the future.

The Archive’s visitors from Cedros stressed the need for greater oversight of the Peñasquito mining operation given the lack of substantive response to the community’s concerns from federal and state authorities and the potential for open conflict. The National Security Archive will work with the Red Solidaria and Cedros community activists to file Freedom of Information Act requests for information that can advance public understanding of this environmental disaster and the hardships suffered by affected communities.

Glomar Denial Shot Down in the Courts Again, AG Barr Slams FOIA “Regime” at Federalist Society Event, and More: FRINFORMSUM 11/21/2019

November 21, 2019

Glomar Denial Handed Second Loss in the Courts this Month

The District Court for the Northern District of California ruled that the FBI can’t issue a Glomar response to an ACLU FOIA request concerning the bureau’s social media monitoring program. (A “Glomar” response is when an agency refuses to confirm or deny the existence of documents in response to a FOIA request because “the existence or nonexistence of requested records is currently and properly classified.” The tactic has been adopted by several federal agencies and some state and local entities, including the New York Police Department.)

Bloomberg’s Bernie Pazanowski reports that the FBI denied the ACLU’s request for information “about the FBI’s social media related policies and guidance, records concerning the purchase and acquisition of social media surveillance technologies, and records concerning the algorithms and analytics used to operate the program” by citing FOIA exemption 7(E) – which applies to law enforcement techniques and procedures that are “not generally known to the public”, and issued a Glomar response. The FBI argued that confirming or denying such technologies could disclose the bureau’s lack of capability.

Judge Edward Chen ruled, however, that exemption 7(E) “refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure.” Judge Chen went on to say “it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information. This lessens the risk that people will be emboldened by the FBI’s disclosure to spread criminal or terrorist messages through social media. Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has no such tools at its disposal, as it could have developed such tools internally.”

This news comes on the heels of Jason Leopold’s significant FOIA win against the CIA’s expansive use of the Glomar exemption. Earlier this month in Leopold’s FOIA suit, the District Court for the District of Columbia ruled that because President Trump tweeted information regarding a defunct covert CIA program to pay and arm Syrian rebels, the CIA could not issue a Glomar in response to Leopold’s FOIA request for information on the terminated program.

AG Barr Slams FOIA “Regime” at Federalist Society Event

Last Friday Attorney General William Barr delivered remarks at the Federalist Society’s 2019 National Lawyers Convention that included some choice comments about FOIA. Barr’s speech focused primarily on the “steady encroachment on Presidential authority by the other branches of government,” although his speech did not mention that the White House is also exempt from FOIA. Barr says:

There is no FOIA for Congress or the Courts.  Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process.  That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.”

Attorney Mark Zaid (currently part of the legal team representing the intelligence community whistleblower at the heart of the current impeachment investigation) notes, “Not even John Ashcroft, when he was President Bush’s Attorney General, spoke negatively about #FOIA in this manner. Most past AGs have actually favorably embraced statute as positive example of how our country leads world in transparency & democracy.”

Secret US Intelligence Files Provide History’s Verdict on Argentina’s Dirty War

Archivist Peter Kornbluh’s most recent article for The Nation discusses the ways the Argentina Declassification Project is already helping human rights efforts in that country, noting that Argentine officials are currently assessing the 47,000 pages of declassified documents for their “evidentiary value in human rights prosecutions.”

The unique value of these documents comes from the “meticulous quality control” of the project’s declassification process. As Kornbluh notes, “When intelligence documents are declassified, they’re usually replete with heavy redactions—swaths of information blacked out in the name of national security or to protect covert ‘sources and methods.’ But because of the meticulous quality control exercised by an unheralded NSC records manager named John Powers, the released CIA, FBI, and Defense Intelligence Agency records on Argentina are far less censored than previous special declassifications. This unique transparency has rendered them far more valuable to historians, as well as to the legal investigators who continue to prosecute these crimes against humanity.”

Archive FOIA Cable Shows Guantanamo Prosecutors Misleading Defense

A military judge presiding over the Guantanamo trial of alleged USS Cole bomber Abd al Rahim al-Nashiri recently cited a cable released to the National Security Archive as evidence that the system for handling classified CIA evidence at the detention camp’s national security trials is “flawed and unfair to the defense.” The current system allows prosecutors, working with members of the intelligence community, to decide what portions of evidence the defense needs for trial. Prosecutors, as Carol Rosenberg reports for the New York Times, “then redact portions of reports from the C.I.A. black sites or write summaries to substitute for the actual evidence.”

To reach his determination, Judge Col. Lanny J. Acosta Jr. compared a December 1, 2002, cable that was released to the Archive last year in response to a FOIA lawsuit to a version of the same cable prosecutors provided al-Nashiri’s defense attorneys. Judge Acosta found “the comparison undermines any contention the redactions are narrowly tailored to a legitimate need to protect national security.”

Read the rest here.

Joint Declaration on the Guatemala Police Archive

The Historical Archive of the National Police of Guatemala (AHPN) faces continuing challenges. Following a downsizing in staff and significant budget cuts, the Archive eliminated its investigations unit which, in the past, reviewed records for information to give to families of the disappeared, human rights investigators, scholars, and prosecutors.

Equally troubling is the Guatemalan government’s decision to smear, isolate, and criminalize two people who were central to the creation of the Historical Archive of the National Police and its flourishing. While these events are less dramatic than an outright closure of the AHPN, the Archive is left to operate in a state of suspended animation—its human rights and justice role eliminated, its former directors under criminal threat.

In response, the International and National Advisory Councils of the AHPN have circulated a declaration of concern about the Police Archive’s current situation and the campaign against Anna Carla Ericastilla and Gustavo Meoño. Find them in English and in Spanish here.

The First Nukes on the Korean Peninsula: New Evidence on the Origins of U.S. Deployments 1958-1991

In the late 1950s, Secretary of State John Foster Dulles worried about the hit to America’s global political standing if the U.S. stationed nuclear weapons, some of which were huge, in South Korea, while senior Defense Department officials pointed to the fiscal  benefits of these deployments, according to declassified records posted by the National Security Archive.  Dulles, who had presided over U.S. nuclear deployments around the world, was cautious, declaring that it would be “disastrous to our position with our Allies and the United Nations” and wondering aloud “why it was essential that we be able to haul these great monsters around,” while DOD and the Budget Bureau insisted there were “substantial economies” to be had.

TBT PickAnatoly Fedorovich Dobrynin (1919-2010)

Today’s #TBT pick commemorates the birth of Anatoly Dobrynin 100 years ago this week. Dobrynin, one of the most effective ambassadors of the 20th century, is being remembered in both his home country and the United States for his abilities, not least in helping to manage the ever-turbulent relationship between the two superpowers for almost a generation during a pivotal period of the Cold War. His role in confidential back-channel communications with senior American officials from Robert F. Kennedy during the Cuban missile crisis to Henry Kissinger in the era of détente helped build a basic level of confidence and trust on both sides that was crucial to resolving or averting numerous actual and potential crises.

This updated posting features a small selection of documents and excerpts from three oral history conferences from the mid-1990s that show Dobrynin “in action” – both as a diplomat and as a historian.

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Archive, CREW, Historians Sue Pompeo and the State Department over Failure to Create Records, and More: FRINFORMSUM 11/8/2019

November 8, 2019

Archive, CREW, Historians Sue Pompeo, State Department for violating FRA

The National Security Archive, together with Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR), recently sued Secretary of State Mike Pompeo and the Department of State for violating the Federal Records Act by failing to create and preserve essential State Department records. The legal team representing the plaintiffs in the case is led by Anne Weismann and Conor Shaw of CREW, and pro bono counsel George Clarke and Mireille Oldak of Baker McKenzie.

Evidence from the House’s impeachment inquiry, including testimony from Ambassador William Taylor, the chargé d’affaires for Ukraine under the Trump administration, speaks to a pattern and practice of bypassing official record-keeping procedures at the State Department. In discussing a June 28 State-organized phone call with Ukrainian President Zelenskyy, Ambassador Taylor testified that, not only did the Ambassador to the European Union Gordon Sondland exclude most of the regular interagency participants from the call, but that “Ambassador Sondland said that he wanted to make sure no one was transcribing or monitoring as they added President Zelenskyy to the call.” This is a direct violation of the State Department’s obligation under the Federal Records Act to document agency policies, decisions, and essential transactions.

The FRA lawsuit comes on the heels of a related Presidential Records Act case that the Archive, CREW, and SHAFR filed in May 2019 to compel the White House to create and preserve records of the President’s meetings with foreign leaders. The PRA suit was filed after news reports indicated that no such records existed for at least five meetings with Russian President Vladimir Putin, one meeting with North Korean leader Kim Jong Un, and a meeting with Saudi Arabian Prince Mohammad Bin Salman.

Leopold Gets Big Glomar Win

Buzzfeed’s Jason Leopold – represented by Jeffrey Lighthas won a significant legal victory against the CIA’s expansive use of the Glomar exemption. (A “Glomar” response is when an agency refuses to confirm or deny the existence of documents in response to a FOIA request because “the existence or nonexistence of requested records is currently and properly classified.” The pernicious tactic has been adopted by other federal agencies and some state and local entities, including the New York Police Department.)

In July 2017 the Washington Post ran a story about the Trump administration’s termination of a covert CIA program to pay and arm Syrian rebels, a week later the President tweeted that “the Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad,” and several weeks later Leopold filed a FOIA request with the Agency concerning the terminated program. The CIA tried to respond with a Glomar, and Leopold sued. The court ruled in Leopold’s favor, finding that “Because the President’s tweet makes it implausible for any reasonable person to truly doubt the existence of at least some CIA records that are responsive to at least some of the nine categories of documents that Buzzfeed requested, Buzzfeed has managed to overcome the Agency’s Glomar response and the Agency has failed to meet its burden in this case.”

Buzzfeed FOIA Suits Win Release of FBI’s “302” Reports on Russian Investigation  

A Buzzfeed News reporting team – including Jason Leopold, Zoe Tillman, Ellie Hall, Emma Loop, and Anthony Cormier – has published a trove of material won in response to five separate FOIA lawsuits concerning special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. The documents are the FBI’s 302 reports – summaries of interviews – and include a number of revelations about Paul Manafort, Michael Cohen, and Rick Gates. As Buzzfeed notes, “They reveal what key players in the campaign told FBI agents about Russia, Trump, the email hack during the 2016 presidential campaign, and Trump’s associates’ handling of the special counsel’s investigation.”

The documents, which can be read here, are the first in a series of court-ordered releases and future installments “will be released every month for at least the next eight years.”

Facial Recognition Software Subject of Second FOIA Lawsuit in As Many Weeks

The Project on Government Oversight (POGO) is suing Immigration and Customs Enforcement for its failure to turn over documents on its use of Amazon’s facial recognition software, Rekognition. The Washington Post notes that POGO filed eight separate FOIA requests with ICE between 2018 and 2019 for documents on “ICE’s surveillance capabilities, detention methods and possible civil rights violations,” as well as FOIA requests for information on marketing materials related to Amazon’s pitch or any analysis of the software’s effectiveness. In each instance ICE either ignored the request or responded with a paltry number of documents.

Last week the ACLU filed a FOIA suit against the Justice Department, the Drug Enforcement Administration, and the FBI for documents on their use of facial recognition software. Specifically, “ACLU attorneys asked a federal court in Massachusetts to order the agencies to release documents about how the government uses and audits the software, how officials have communicated with companies that provide the software, and what internal guidelines and safeguards regulate its use.”

NOAA Chastised Forecasters for Contradicting Trump’s Inaccurate Hurricane Dorian Tweet, Despite Knowledge Forecasters were Acting in Response to Public Panic

Emails released through FOIA are shedding light on the National Oceanic and Atmospheric Administration’s (NOAA) decision to publicly rebuke its own weather forecasters in Birmingham, Ala. for contradicting President Trump’s repeated and erroneous claims that Alabama was in danger of being hit by Hurricane Dorian this September. The emails show that NOAA, which is part of the Commerce Department, knew as of Sept. 2 that forecasters at the agency’s National Weather Service office in Alabama were responding to frantic calls from citizens – and not an earlier tweet from President Trump – when it tweeted that “Alabama will NOT see any impacts from #Dorian.” Yet, after five days of the President falsely insisting that Alabama was in danger from the hurricane – including parading a forecasting map that had been altered with a Sharpie –  the NOAA issued an unsigned statement that chided the forecasters for speaking “in absolute terms that were inconsistent with probabilities from the best forecast products available at the time.” The backing of the president at the expense of science and public safety infuriated members of the public and weather researchers alike, and the released emails also show NWS officials trying to boost moral within the administration after the NOAA’s public admonishments.

TBT1979 Iran Hostage Crisis Recalled

On November 4, 1979, a group calling itself the Students Following the Line of the Imam stormed the gates of the U.S. Embassy in Tehran, seized control of the compound, and took several dozen American diplomats, Marine guards, and others hostage. Thus began a 444-day ordeal that shocked the world, fundamentally altered the political scene in Iran, and cemented negative perceptions in the West of the country’s Islamic leadership.

Forty years later, the Iran hostage crisis is still critical to understanding the bitter nature of relations between Iran and the United States.  It instantly formed a core part of the American narrative about the Islamic Republic as a regime willing to flout international law and universal moral principles, a view that has colored much of U.S. policymaking ever since.

This week, the National Security Archive posted a small sampling of declassified records that recall that pivotal episode. They include a memo from National Security Advisor Zbigniew Brzezinski to President Carter suggesting several hardline actions including replacing Ayatollah Ruhollah Khomeini as Iran’s leader and even overt intervention (see Document 07).  Carter was not prepared to take up any of these options but they indicate the level of alarm created by events in Tehran.

The documents are part of the soon-to-be-published U.S. Policy toward Iran: From the Revolution to the JCPOA, 1978-2015, a collection of almost 2,000 documents that is the latest in the “Digital National Security Archive” series through the academic publisher ProQuest.

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EPA Tries to Blame Bad FOIA Regs on Advisory Committee Recommendation: FRINFORMSUM 11/1/2019

November 1, 2019

Finding agency FOIA regulations can be a difficult task.

EPA Tries to Blame Bad FOIA Regulations on Advisory Committee

The Environmental Protection Agency is trying to blame a recommendation from the FOIA Federal Advisory Committee for its controversial new FOIA regulations, which centralizes the agency’s FOIA submission process within the EPA’s headquarters’ office in D.C. and away from the agency’s regional offices. The new rule, issued in June, allows the administrator and other officials “to review all materials that fit a FOIA request criteria, known as responsive documents, and then decide ‘whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” It seems likely that the rule will expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allow the agency to functionally ignore any requests sent to regional offices.

In an Oct. 23 response to Rep. Katie Porter’s (D-CA.) July 9 letter, the EPA’s acting associate administrator Joseph Brazauskas says the move was in keeping with recommendations from the FOIA Federal Advisory Committee to centralize FOIA processing where appropriate. Rep. Porter didn’t buy the misreading of the FOIA Advisory Committee’s good recommendation. She noted that the EPA’s FOIA processing remains decentralized, while it’s the FOIA submissions policy that has changed. She says, “Centralized FOIA processing, when done properly, allows for one official to search and review records even when held by various offices, thereby eliminating substantial waiting time and duplication of efforts.” Porter further pointed out that “Centralized submissions with continued decentralized processing instead increases delays as FOIA requests are routed to the appropriate office or branch.”

Rep. Porter also argued that the EPA violated federal procedures (the Administrative Procedures Act) by changing its FOIA policy without offering notice and a public comment option, and requested the EPA provide documentations of its legal justifications for doing so. The Project on Government Oversight’s Sean Moulton has an excellent, in-depth analysis of the EPA’s lack of public comment here.

The EPA faced immediate backlash for the rule when it was published in the Federal Register in June. Long-time FOIA champion Senator Chuck Grassley tweeted, “Americans deserve 2kno what their govt is up to Freedom of Information Act designed to promote transparency when govt lacks openness but recent SCOTUS ruling+EPA &Interior regs undermine FOIA I will write legislation 2fix TRANSPARENCY BRINGS ACCOUNTABILITY.” Senator Patrick Leahy added, “Congress won’t sit idly by while @EPA further guts FOIA w. an offensive rule allowing politicals to reject #FOIA requests w/o explanation. @EPAAWheeler: a friendly reminder that #Appropriations has oversight responsibilities. We’ll be chatting about this.” Sens. Grassley and Leahy, along with Sen. John Cornyn and Sen. Dianne Feinstein, introduced a bill, the Open and Responsive Government Act of 2019,  in direct response to the EPA’s rule that “directly eliminates any agency’s authority to withhold any public documents under a basis of non-responsiveness.”

NARA Investigates Wilbur Ross’ Use of Private Email

Politico’s Josh Gerstein reports that the National Archives and Records Administration is investigating Commerce Secretary Wilbur Ross’ use of private email for government business. Ross’ use of private email was revealed in a FOIA lawsuit filed by Democracy Forward, and the FOIA-released documents show that, “From a nongovernment account, Ross has sent or received official correspondence about discussions with the European Commission for Trade, a U.S. ambassador’s meeting with German car manufacturers, a dinner featuring the ambassador of Japan, what appears to be an event related to billionaire businessman Bill Koch, and meeting requests from the far-right Internet troll Charles Johnson.”

NARA’s Laurence Brewer wrote in an October 9 letter to the Commerce Department’s chief information officer that, “The National Archives and Records Administration (NARA) has become aware of a potential unauthorized disposition of U.S. Department of Commerce records… In accordance with 36 CFR 1230.16(b), NARA requests that the Department respond within 30 calendar days to the allegation.”

Ross joins at least eight other current and former Trump administration officials who have been reported to use their personal emails for official business, including Ivanka Trump and Jared Kushner, adviser Steven Miller, former adviser Steve Bannon, former deputy national security adviser K.T. McFarland, as well as former chief of staff Reince Priebus and former National Economic Council director Gary Cohn.

ACLU Files FOIA Suit over Facial Recognition Info

The ACLU recently filed a FOIA suit against the Justice Department, the Drug Enforcement Administration, and the FBI for documents on their use of facial recognition software. Specifically, “ACLU attorneys asked a federal court in Massachusetts to order the agencies to release documents about how the government uses and audits the software, how officials have communicated with companies that provide the software, and what internal guidelines and safeguards regulate its use.” The ACLU filed its FOIA requests with the defendants in January, but received no response.  In its press release regarding the suit, the ACLU’s Kade Crockford cites the FBI’s Facial Analysis, Comparison, and Evaluation (FACE) unit, which searches 641 million facial photos, including those from driver’s license databases.

Nuclear Weapons and Turkey Since 1959

The current crisis with Turkey over Syria has raised questions, yet to be resolved, about the security of 50 U.S. nuclear weapons stored at Incirlik Air Base. These questions have been posed before, going back almost to the start of nuclear deployments in Turkey in 1959. How the United States responds carries implications for the region, for U.S.-Turkey relations, and for NATO. The National Security Archive recently posted a selection of declassified documents from various sources, including the Digital National Security Archive, in order to provide historical context to the situation.

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War Stories and Advice from the Archive’s Outgoing FOIA Director

October 18, 2019

A result of an early FOIA request. The National Security Agency classified a wikipedia article, reviewed it, and charged me before processing it for release. I’ve had more success since.

A few war stories and bits of advice before I leave my job as Director of the FOIA Project at the National Security Archive to begin a new role as the FOIA Director for the Washington Post:

If the Reagan Presidential Library had just given me the darn document, I wouldn’t have helped file tens of thousands more FOIAs over the past ten years.  When I was a college student writing my thesis on the 1983 Able Archer War Scare, I used some of my Christmas money to travel to the Reagan Presidential Library to do research.  I found some interesting documents there, to be sure, but most of the folders that had titles relevant to my research had no documents inside, just lists of “closed” files.  I, disappointed, sheepishly asked an archivist if there was anything, I could do to see these files.  He said, with a half-annoyed and half-pitying look, “I guess file a FOIA[1] and wait.”

As it turned out, this was one of the best things that could have happened to me.  Instead of becoming dejected, I became angry.  I researched the Freedom of Information Act, including how to fight delays and denials and came across guidance from the National Security Archive.  Even more importantly, I was blown away by just how awesome the National Security Archive was!  How cool would it be to work here!?

Eventually, after a few tries, I was hired as an intern (I cornered the previous FOIA director at a party until she agreed to accept my resume.  How DeeCee).  I started by scanning declassified documents into our system as they came in.  Before too long, I climbed the ladder to work for luminaries Jeff Richelson and Matthew Aid. And then, in a few years, I was overseeing the entire FOIA project and was Editor of the Archive’s blog Unredacted where I had the pleasure of producing a good run of “Document Fridays” (One of which, recently updated, about State Department reporting on the kidnapping of then-Washington National Wilson Ramos).  I FOIAed, won the release of, and wrote up lots of documents.  All my writing was helped by two of the best editors imaginable, Tom Blanton and Malcolm Byrne; it’s a real treat to write with them.  Off the top of my head, a few of my favorites include:

District of D.C. Judge Gladys Kessler reveals hos she really feels about the CIA

The True Spy Story of Argo

The Zero Dark Thirty File

The Rumsfeld Snowflakes

And The Dissent Channel

Oh yeah, also that time the CIA paid the National Security Archive a settlement $350,000 for violating FOIA and we got the internal dox about their anger at doing so!

But we didn’t just win historical revelations.  We also affected current policy.  I helped author eleven FOIA Audits. Largely due to my colleague Lauren Harper’s excellent FRINFORMSUMs (Freedom of Information Summaries—a nod to less open intelligence reports), Unredacted became a very important news source for all Open Government and FOIA news.  A few of our pieces even had an impact on improving FOIA and ultimately helping to get a pretty good FOIA Improvement Act Passed.  I’m most proud of:

Candid remarks on Exemption 5.

The Next FOIA Fight: The B(5) “Withhold It Because You Want To” Exemption

What We Can Learn from the Death of an Unanimously-Supported FOIA Bill, and Janus-Faced Support for Open Government

Against Transparency?

FOIA: A Colossus Under Assault and

The “Indiana Jones Warehouse:” How to use FOIA to get Documents from Purgatory

A FOIA request to the National Parks Service revealed the president of the United States lied about his crowd size.

And, speaking of the FOIA Improvement Act, I’d like to pay an homage to the late great Chairman Elijah Cummings.  In my first testimony to Congress, I made some good points, but, probably hotheadedly, bemoaned that Congress was not doing enough to fix FOIA faster.  He gave me a tongue lashing, overviewing the power of FOIA telling me, “not to throw the baby out with the bathwater.”  It’s an admonition I’ll be forever proud to carry.

And what about those 1983 War Scare FOIAs?  Well, National Security Archive won the release of the key, chilling document, a 100-page comprehensive President’s Foreign Intelligence Advisory Board report that concluded the danger was real in 2015.  The release came after a twelve-year fight involving FOIA, MDR, and the Interagency Security Classification Appeals Panel.  And—proving the FOIA gods have a sense of humor—was released to me on my birthday.  Eventually, this and other War Scare

Happy Birthday!

documents became a book.  And the Able Archer 83 Sourcebook remains the most comprehensive resource of declassified American, Soviet, and Warsaw Pact dox to this day.

As a fellow at the National Security Archive, I’ll continue to research this topic and fight for the release of still-secret sources, including General Perroots’s firsthand warning of the danger he experienced during the nuclear exercise and the Initial British reporting, entitled ”The Detection of Soviet Preparations for War Against NATO.”

Finally, as I leave the best job I’ve ever had to become the Washington Post’s FOIA Director, I’d like to give a bit of final advice to the FOIA warriors out there (in addition to my maxim: “ALWAYS APPEAL.” –see more general filing tips here at ever-awesome Muckrock).

A send off as only the NS Archive could do.

First, get to know your counterparts within the government.  Some of the most rewarding experiences I’ve had were swapping stories with FOIA processors at the American Society of Access Professionals, doing deep dives into records policy with the staff of the US National Archives and Records Administration, and serving with governmental and nongovernmental experts on the Federal FOIA Advisory Committee.  My largest take away from my colleagues within the system is that most absolutely believe in open government and want to get the records out.  The problem, as they see it, is lack of resources.  I completely agree with them!  But I also point to another problem, that I think some of my government colleagues have begun to come around to: the extreme inefficiencies within the FOIA processing system.  Yes, fund FOIA better!  But the more actionable solution, I believe, is confronting the multitude of FOIA processing inefficiencies and remedying them.  Two of my favorite solutions that the FOIA Advisory Committee recommended to do this are to update the FOIA fee regs (written before the advent of email)[2], and for agencies to fix the largest reason for FOIA delays, inefficient searches.

Opportunity Lost.

Second, those who want to see FOIA improved should apply as much pressure as possible on the Department of Justice Office of Information Policy to do so.  It has more capacity and authority than any other agency.  But, as the Archive has written, the two-time Rosemary Award winner, has not lived up to its tasking.  The greatest disappointment in my tenure at the National Security Archive was watching President Obama’s day one directive to improve FOIA practices, and his directive for every agency to cut its FOIA backlogs by ten percent each year be ignored by the Department of Justice Office of Information Policy, and in turn, the FOIA shops throughout government.  Imagine what a great position we would be in if agencies had completed the President’s crystal clear, manageable instruction to reduce their backlogs by ten percent for eight years in a row.  It’s a sad missed opportunity to think about.  In retrospect, President Obama’s greatest FOIA failing was not ensuring the Department of Justice Office of Information Policy followed his marching orders to improve FOIA.  Hopefully, this error is a teachable moment that a future administration that also cares about improving FOIA will not repeat.

Finally, I’d recommend FOIA advocates not tinker around the edges as they work to reform FOIA.  I think they should ask themselves: Does any proposed reform get more information to more people more quickly?  If so, it is a worthy reform to fight for! If not, it may not be.  The first worthy reform I’d recommend getting passed is the bipartisan FOIA-lion-approved quick fix to return to the status quo balancing test after the Supreme Court’s Exemption Four overstep. (The Court cares about the “plain text meaning” of the word “harm” in the business-protecting Exemption Four, but not about the words “shall make the records promptly available” in the statute?!?!)  Another larger fight I’d recommend is the inclusion of a provision allowing FOIA personnel access to agency electronic records so that they can search them in response to FOIAs, rather than waiting for their busy colleagues to take years, or decades.  And a final, next frontier fight is a universal public interest balancing test, as was introduced in Senator Warren’s Anti-Corruption and Public Integrity Act.  Despite the order, still on the books, that they should not withhold information because they merely technically “may do so legally,” agencies are still largely withholding anything and everything they can (among watermelon production data and other stupid secrecy).  The next step is enshrining in legislation the public’s right to some information, even if it technically falls under one of FOIA’s exemptions.  I know that these battles will be fought by zealous right to information warriors.

As I told my esteemed colleagues at National Security Archive, this is a see you soon, not a good bye.  I’ll remain a research fellow here, and will be knee and elbow deep in FOIA at the Washington Post.

So….  See.  You.  Later.

 

[1] Most Presidential Library records are released via Mandatory Declassification Review (one of my very first blog posts!!), not the Freedom of Information Act.

[2] Cause of Action has just filed a lawsuit fighting to do just this!