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

June 4, 2020

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

OIP Report Says Fed Has Improved FOIA Processing

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

The FY2019 summary report argues that agencies have achieved a government-wide release rate of 94.4% (up from 93.8% last year). OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see above for an example), and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent.

Other highlights from the report include:

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

As always, this year’s OIP summary report makes clear that agencies will need to embrace technology and proactive disclosure. If agencies are looking for guidance on how, they should turn to the recommendations made by the FOIA Federal Advisory Committee, which includes instructions on how agencies should be proactively posting documents online and how to conduct more efficient searches — the key reason behind the years and decades-long processing delays.

Continued Surveillance of Black Lives Matter

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

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

PIDB Report on Modernizing Classification System

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

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

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

2nd Circuit Helps White House Hide Visitor Logs

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

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

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

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

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

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

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

The “Irreplaceable” Chernyaev Diary

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

 

OMB’s Proposed FOIA Fee Guideline Revisions Don’t Go Far Enough, State Department Historical Advisory Report Slams DoD Performance Again, and More: FRINFORMSUM 5/8/2020

May 8, 2020

 

OMB’s Proposed FOIA Fee Guideline Revisions Don’t Go Far Enough

The Office of Management and Budget is currently accepting comments on proposed revisions to its uniform FOIA Fee Guidelines, which date from 1987 and govern when and how all agencies can charge FOIA fees. The revisions are unconscionably belated, were undertaken not voluntarily but only because of an Administrative Procedures Act lawsuit filed by Cause of Action, and do not go far enough to address several major flaws that the guidelines have had since their inception.

OMB’s 2020 revisions should focus on improving inadequate language from the 1987 guidelines related to FOIA requester fee categories. FOIA is not free, but requesters placed in “preferred” fee categories, like representatives of the news media or educational institutions, are entitled to significantly reduced fees that should often result in all fees being waived. The news media fee category in particular, thanks to the landmark case National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989) and later 2007 statutory amendments to the FOIA, should be applied equally to freelance journalists, bloggers, digital publishers, and compilers of released documents.

However, OMB’s fee guidelines never incorporated D.C. Circuit language from the Archive’s victory, or statutory revisions to the law, and instead maintained the most restrictive interpretations of these fee categories as possible. This has led to decades of wasteful litigation because requesters were forced to challenge inappropriate requester fee category denials in court.

OMB should take this opportunity to include the D.C. Circuit’s language on “news media” in the revised Fee Guidelines. The Guidelines should also explicitly include scholarly organizations, think tanks, high schools, and other educational institutions in the educational requester fee category.

OMB is accepting comments on the proposed revisions until June 3, 2020.

 

State Department Historical Advisory Report Slams DoD Performance Again

For the third year in a row, the State Department’s Historical Advisory Committee (HAC) excoriates the Defense Department for its poor performance regarding its obligation to declassify select documents for the Foreign Relations of the United States series. In its annual report for 2019, the HAC says The pace of the reviews of FRUS volumes submitted to the interagency review process was again disappointing. Notwithstanding some slight improvement, the Department of Defense (DoD) remained the principal obstacle.” The report further notes that DOD “responded to less than one-third of the volumes that OH submitted for its review, it took more than 4-times longer than the mandated timeline when it did respond, and its few responses were of poor quality.” The HAC recommended that “DoD to take its cue from the CIA, notwithstanding the challenges that agency confronts in declassifying documents and meeting the mandated timelines for FRUS reviews.”

The FRUS series is statutorily obligated to publish a “thorough, accurate, and reliable” record of US foreign policy “no later than 30 years after the events that they document.” Yet the office published only two FRUS publications in 2019 – down from six in 2018 and eight in 2017. These volumes are:

  • FRUS, 1977–1980, Volume XIX, South Asia (August 8)
  • FRUS, 1969–1976, Volume E–9, Part 2, Documents on the Middle East Region, 1973–76 (October 23)

There was some good news in this year’s report, however. The HAC praised the performance of both the State Department’s Office of Information Programs and Services and the National Security Council’s (NSC’s) Office of Records and Information Security Management.

Senate Judiciary Demands Answers from DOJ on FOIA Compliance During COVID

Senators Patrick Leahy, Chuck Grassley, Diane Feinstein, and John Cornyn recently sent a bipartisan letter to the Justice Department’s Office of Information Policy demanding answers on agencies decreased capabilities processing FOIA requests during the COVID-19 pandemic (the Archive’s own running list of FOIA-related COVID-19 updates can be found here). As the senators noted, “Of course, government transparency and accountability is even more important during a time of crisis. While many agencies have sought to be clear about their temporarily reduced capabilities, we are concerned that some, particularly the FBI, may have created unnecessary burdens on requesters in response to the COVID-19 national emergency declaration,” going on to note “We understand all agencies and departments are continuing to adapt to the current circumstances, but it is the [Justice] Department’s duty to ensure that FOIA administration is not simply cast aside as a temporary inconvenience.”

The senators told OIP to provide the committee with, among other things, a list “of agencies and departments that have limited in any manner their acceptance of FOIA requests or delayed processing of such requests due to the current crisis, along with OIP’s understanding of the specific reasons for such limitations and delays,” and the “specific steps, if any, has OIP taken during the pandemic to encourage the use and integration of technology into agencies’ FOIA processing protocols”.

OGIS Hosts Webinar with CDC’s FOIA Shop During COVID

The Office of Government Information Services is hosting a webinar on Tuesday, May 12 with the Centers for Disease Control and Prevention’s FOIA leadership, “who will provide insight into the agency’s FOIA program and suggest strategies for successful FOIA requests.” Registration is required for the event, for which attendees can submit questions in advance. A question likely on many requesters minds: Why does anecdotal evidence show that CDC is responding to FOIA requests with the carte blanche (and often inappropriate) response that the requests are too broad? Tune in to find out.

WaPo Sues State Department for COVID Cables

The Washington Post is suing the State Department after the Department denied the Post’s request for expedited processing for documents concerning the Wuhan Institute of Virology, “which has conducted studies on bat coronaviruses like the one that has caused the current health crisis.” The expedited processing request was denied on the grounds that the State Department found “no ‘compelling need” to rush the information. Read more here.

FOIA Wins Release of Historic OLC Opinions

In a major victory, the Knight First Amendment Institute at Columbia University has won the release of 96-Nixon Era Office of Legal Counsel opinions (OLC opinions that have previously been hidden, at least in part, by FOIA’s “deliberative process” exemption). The Knight Institute filed the FOIA request in February 2019, seeking all OLC opinions written prior to 1994, and filed suit when OLC failed to respond to the request with any documents. The opinions are now free thanks to the efforts of Senators Leahy, Grassley, Cornyn, and others, who mandated a 25-year sunset to the “deliberative process” exemption in the 2016 FOIA Improvement Act.

FCC Net Neutrality Records

Federal Judge Lorna Schofield has ordered the Federal Communications Commission to fulfill FOIA requests from two New York Times reporters seeking “server logs that may provide new insight into the allegations of fraud stemming from agency’s 2017 net neutrality rollback.” The ongoing saga began nearly three years ago when the FCC stonewalled FOIA requests for information related to an alleged DDoS attack the agency claimed crashed its online public comment system; the supposed attack came after the FCC chair, Ajit Pai, proposed to “dismantle net neutrality rules” and HBO’s John Oliver encouraged the public to comment on the proposed changes. In her ruling, Judge Schofield held that the FCC, which argued making the IP addresses in question public would violate personal privacy, “failed to adequately spell out how anyone would be harmed by the disclosure”; instead finding that the public interest in the disclosure outweighed any hypothetical harm.

 

CIA Spymaster Frank Anderson, 1942 – 2020

April 6, 2020

An undated photo of former CIA officer Frank Anderson. (Family photo)

Read his 1999 Interview with the Archive on Arming the Afghan Mujahideen Against Soviet Occupation

By Claire Harvey

Frank Anderson, the architect of the CIA’s Afghan Task Force in charge of arming the Afghan mujahideen against the Soviet occupation in the late 1980s, died on January 27, 2020 at age 78 in Sarasota, Florida. Anderson’s decades-long career included service as chief of Directorate of Operations in the Near East and South Asia division, and director of the Office of Technical Services, where he was responsible for arming clandestine officers with gadgets, disguises, and weapons. After he left the agency to become the head of the Middle East Policy Council, Anderson became a vocal critic of the Agency’s torture program.

An Afghan guerrilla handles a U.S.-made Stinger anti-aircraft missile. The shoulder-fired, heat-seeking missile supplied to the Afghan resistance by the CIA during the Soviet invasion of Afghanistan, is capable of bringing down low-flying planes and helicopters.
AP Photo/David Stewart Smith

Anderson was one of dozens of high-level officials interviewed during the National Security Archive’s and CNN’s 24-part, Peabody-award-winning documentary series, Cold War. Anderson’s interview took place one year after the terrorist bombings of the United States embassies in Tanzania and Kenya, which killed more than 200 people and prompted President Clinton to order cruise missile attacks targeting Osama bin Laden’s training camps in Afghanistan.

Anderson said of the historical implications of aiding the Afghan mujahideen:

We worked very hard to ensure that there was no favoritism towards fundamentalist parties. We struggled with an understanding that a post war Afghanistan would not probably be very friendly to the United States. … [To those who say] …well we aided the fundamentalists and now we have the terrorism problem. It just doesn’t stand up to even a cursory examination in light of very recent and mid-term history. We had a terrorism problem before … [and] we have a terrorism problem now.

Anderson also emphasized that the CIA was not able to choose winners and losers among the many factions fighting in Afghanistan against the Soviets. He stated, “we were not in a position to turn the tap or close it, at one week to the next in order to support the policy side.” Going into further detail, Anderson noted that:

Did we give aid to fundamentalist groups; did we give aid to moderate groups? What we did was give aid to the fighters and … I think we were quite successful in structuring our program so that the support went to those who were actually engaged in fighting, and, in fact, it was packaged for commanders for specific operations, and the effect of that was that it was distributed on really close to a per capital ratio.”

A fighter in Afghanistan’s Paktia Province holding his combat ration of peanut butter from the United States, on July 11, 1986.
AP Photo/Barry Renfrew

The full video series of  CNN’s Cold War series is available on YouTube here. The Archive has made available the accompanying transcripts of interviews for each episode, including interviews with George Bush, Aldrich Ames, Robert McNamara, and Henry Kissinger (to name a few), and can be found here.

Anderson retired from the agency in 1994 after former director James Woolsey ordered his reassignment over a dispute involving Anderson’s longtime colleague, Milton Bearden, and the scandal around Soviet spy Aldrich Ames. (Ames was charged under the Espionage Act in 1994 of leaking classified CIA documents to the Soviet Union and Russia, and pleaded guilty to selling classified national security information to the KGB in exchange for almost 5 million dollars.”)

In response to the Ames scandal, Woolsey issued severe reprimands to 11 senior officials— including Bearden, who failed to detect that Ames was a mole while under Bearden’s supervision. Anderson went to Germany the day after the reprimands were issued to present Bearden with an award for his work as Islamabad station chief throughout the 1980s. The New York Times reports that, “[Woolsey] apparently saw the award given to Mr. Bearden as a serious error in judgement, not an act of defiance.” In response, Woolsey demoted Anderson, who opted to resign rather than accept the re-assignment.

Anderson later served as President of the Middle East Policy Council, where, he was an outspoken critic of the agency’s torture program. In 2014, Anderson wrote for the Miami Herald:

“As an operations officer and leader, I learned that good guys have bad days, and that fear, anger and ambition degrade, rather than enhance, judgment and decision making. My friends and colleagues made serious errors in just such an atmosphere.”

Fighting Forever Secrets, COVID-19 and FOIA, and More: FRINFORMSUM 4/2/2020

April 2, 2020

Mourners carried the coffin of a lynching victim out of Mount Perry Baptist Church in Bishop, Ga., in 1946. The lynching was a quadruple killing. Photo Credit: The Atlanta Journal-Constitution/Associated Press

Appeals Court Rules in Favor of Forever Secrets

A federal appeals court in Georgia has ruled “that federal judges do not have the authority to unseal federal grand jury records, except for a limited set of circumstances governing grand jury rules of secrecy.” The case, Pitch v. US, sought grand jury records concerning the murder and lynching of two black couples (Roger and Dorothy Malcom and George and Mae Murray Dorsey) by a mob of white men in rural Georgia in 1946. The appeal court’s 8-4 decision overturned the lower court’s 2017 decision that the records – which are being held at the National Archives – be released. The Plaintiff’s lawyer, Joseph J. Bell Jr., has said he plans to appeal the decision to the Supreme Court.

In September 2019 the National Security Archive joined eight other scholarly organizations in filing an amicus brief in the case, arguing that courts have the inherent authority to unseal grand jury records in special circumstances and in cases of historical significance, just as they did in releasing the secret grand jury testimony of David Greenglass –the brother of Ethel Rosenberg. The Greenglass testimony, which was released thanks to a lawsuit brought by the National Security Archive and major historical and archival associations, suggests David committed perjury on the witness stand in the Rosenberg spy trial by providing false testimony against his sister in order to save his wife, Ruth.

The Archive was represented pro bono in its Pitch amicus by the Public Citizen Litigation Group; the other amici include the American Historical Association, the American Society for Legal History, the Organization of American Historians, and the Society of American Archivists.

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COVID-19 FOIA Updates

The COVID-19 crisis has impacted FOIA shops across the federal government. As of writing this:

  • The FBI has stopped processing emailed FOIA requests, instead requiring requesters to send requests via snail mail. Buzzfeed News’ Jason Leopold broke the news, noting that the Bureau did not explain the rationale for demanding requests be sent by hand – at a time when all Americans are being strongly encouraged to stay home – rather than by computer.
    • The FBI didn’t stop there; the Bureau later sent home the entire FOIA division with the argument that processing FOIA requests is not critical to the organization’s mission.
  • The State Department reported in a court filing that its FOIA-processing capacity has plummeted by 96%. The radical drop is explained by the fact that State’s FOIA shop is heavily reliant on retired, part-time Limited Non-Career Appointment (LNA) Foreign Service Officers with decades of experience in foreign policy – most of whom are older and “very few” of whom were set to perform telework.
    • State official Eric Stein said “he ordered the retired employees to stay out of the office for ‘several weeks’ because the FOIA work wasn’t considered mission critical, but he also expressed concerns for their health due to their age.”
    • On March 20, Buzzfeed News’ Leopold posted a screenshot from the State Department’s FOIA page, noting “In response to the unprecedented COVID-19 pandemic, many agencies, including the Department of State, have been forced to suspend FOIA operations until further notice.”
  • A Congressional Research Service report highlighted by Steve Aftergood on his Secrecy News blog gives a short overview of FOIA processing changes due to COVID. In addition to flagging changes at the FBI, it notes that the Centers for Disease Control and Prevention has stopped accepting mailed requests, instead requiring requests be submitted electronically.
    • Adam Marshall of the Reporters Committee for the Freedom of the Press pointed out on Twitter that the CDC adapted to COVID-19 by publicizing not one – but four ways requesters could submit requests electronically.
  • The Philadelphia Inquirer’s William Bender and Jeremy Roebuck have a good round-up of COVID’s impact on state and local FOI shops here.

Pentagon Wants to Make Spending Projections Secret

In the midst of the current public health crisis, the Defense Department is asking Congress to “rescind the requirement to produce an unclassified version of the Future Years Defense Program (FYDP) database,” which the DoD has provided since 1989 to provide spending projections for the next five years. Steve Aftergood has an excellent analysis of the problematic proposal, noting that “At a time when it is clear to everyone that US national security spending is poorly aligned with actual threats to the nation, the DoD proposal would make it even harder for Congress and the public to refocus and reconstruct the defense budget.”

The DoD has been required to produce an unclassified FYDO since 1989, but now argues that data mining tools could be applied to the large volume of information and allow adversaries to “derive sensitive information.”

The move to discontinue producing an unclassified FYDP comes as a part of a “broader retreat from public oversight and accountability, the Pentagon today does not make its legislative proposals easily accessible to the public,” Aftergood says. The Department has also stopped publishing its legislative proposals to Congress and has proposed a new FOIA exemption for unclassified documents concerning military techniques – an exemption that Congress has rejected at least four times.

Sunshine Week Round-Up, Ways to Strengthen the Presidential Records Act, COVID-19 Transparency Resources, and More: FRINFORMSUM 3/20/2020

March 20, 2020

Sunshine Week Round-Up

GAO Report Released

Today marks the end of this year’s Sunshine Week, the annual, week-long celebration of access to information. To mark the occasion, Senators Patrick Leahy, Charles Grassley, Dianne Feinstein, and John Cornyn, together with House Oversight Chair Carolyn Maloney, released the results of the first of two GAO reports on agency compliance with the 2016 FOIA amendments. The legislation required agencies to update their FOIA regulations within 180 days of passage, and mandated a 25-year sunset for the “wildly misused” FOIA exemption (b)(5), among other key fixes.

The report’s key findings include:

  • Costs of litigating FOIA requests have shot up nearly 70% since FY 2012.
  • FOIA requests have increased 30% since FY2012, but FOIA staff have increased by only 21%.
  • Only a quarter of requests were granted in full in FY 2018.
  • Agencies, which are required to proactively post documents likely to be of public interest or that are the subject of three or more FOIA requests, published fewer than 155,000 documents proactively in FY2018.

Principal Deputy Associate Attorney General Claire Murray

Misinformation at OIP Event

A Justice Department official used the Department of Justice’s Office of Information Policy Sunshine Week event to spread misinformation on FOIA. Principal Deputy Associate Attorney General Claire Murray said that FOIA requesters are now litigating more quickly – a statement that is not borne out by the data, which shows that requesters are actually waiting longer to file FOIA lawsuits; Murray went on to imply that ordinary requesters were suffering because of “the well-funded” filing FOIA lawsuits. The Transactional Records Access Clearinghouse at Syracuse University (TRAC) published a thorough rebuttal, noting that Murray’s “counterfactual claim was used to sow unnecessary division between, on the one hand, citizens who seek remedy in court when the government fails to comply with the law, and, on the other, government staff and ‘ordinary citizens.’ The fact that FOIA requesters are waiting longer to file lawsuits when the government fails to keep its end of the bargain suggests that requesters would, in fact, prefer to work with the government to avoid the expensive and lengthy process of litigation.”

The FBI Stops Accepting FOIA Requests by Email, Sends FOIA Staff Home

The FBI took two steps this Sunshine Week that virtually assured no FOIA work will happen for the foreseeable future. For its first move, the FBI, citing COVID-19, told requesters that it would no longer accept emailed requests, instead requiring requesters to send requests via snail mail. Buzzfeed News’ Jason Leopold pointed out the counter-intuitive move on Twitter, noting that the Bureau did not explain the rationale for demanding requests be sent by hand – at a time when all Americans are being strongly encouraged to stay home – rather than by computer. (Leopold also notes that the FBI’s FOIA regulations state that all Bureau components “have the capability to receive requests electronically either through email or a web portal.”

The FBI didn’t stop there. For its second move they sent home the entire FOIA division with the argument that processing FOIA requests is not critical to the organization’s mission.

601 Consecutive Pages Withheld under B5

The American Immigration Council filed a FOIA request for records on Customs and Border Protection’s use of Border Patrol officers as asylum officers and were rewarded for their efforts with over 600 pages of completely redacted documents. The exemption cited? FOIA’s “withhold it because you want to” Exemption 5; a discretionary exemption that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public. Considering both that OIP’s own guidance on the exemption states that the exemption should be applied to “only those documents that are normally privileged in the civil discovery context”, and that FOIA prohibits agencies from withholding information to prevent embarrassment, hide errors and failures, or because of speculative or abstract fears, it strains credulity that the entire 600+ pages could be entirely exempt from disclosure. Thanks to AIC’s Aaron Reichlin-Melnick for flagging.

What Instant Messages?

Americans for Prosperity and Cause of Action have published a wonderful report on how many agencies are not complying with either the Federal Records Act or the Freedom of Information Act when it comes to preserving instant messages and providing them in response to public records requests. The key takeaway: “Only four agencies receive passing scores: FCC, CIGIE, USDA, and NASA,” and 36 agencies either failed or did not respond to the FOIA request requesting information on their agency’s IM records management policies.

Sunshine Chat

Today the National Security Archive will be joining twelve other transparency organizations in a Twitter Q&A on the importance of freedom of information. Follow the event, organized by our friends at the Reporters Committee for Freedom of the Press, starting at 2 PM ET with the hashtag #SunshineChat2020!

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How Transparent is President Trump? Audit Shows Three-Quarters of His Decisions Bad for Openness

President Trump has made three times as many pro-secrecy decisions as pro-transparency ones since taking office, this according to a National Security Archive Audit released to mark Sunshine Week. The survey found that the President’s anti-transparency decisions – including classifying coronavirus talks, hiding the White House visitor logs, and keeping his tax returns secret – significantly outnumber the good transparency decisions he’s made, including following through with the Argentina declassification project and working for more transparent hospital and prescription drug prices.

The Archive audit team scoured White House press releases, news reports, and court cases to create an interactive chronology of Trump’s good, bad, and occasionally perplexing transparency decisions since taking office. The results undercut the President’s repeated claim that he is the most transparent president in history, but do provide some insights into areas where the President and his team have consistently promoted transparency.

Strengthening the Presidential Records Act

The Archive’s Sunshine Week Audit, which highlighted President Trump’s anti-transparency behavior – including ripping up his papers once he’s done with them – underscores the need to strengthen the Presidential Records Act. Some possible fixes include:

  • Congress outlawing disappearing instant messages. In 2018, the U.S. District Court for the District of Columbia’s Judge Christopher Cooper ruled against Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive in our Presidential Records Act lawsuit targeting the Trump administration’s use of disappearing messaging apps. Cooper said the plaintiffs were“likely right on the merits, but that he was nevertheless constrained to grant a government request to dismiss the suit on procedural grounds” – in part because Congress made no provision for private groups to seek the enforcement of the PRA.
  • Explicitly requiring the President “to make and preserve records”, just as the Federal Records Act requires agencies to do.
  • Striking the disposal provisions of the law (2203 (c)-(e)). The era of cloud storage eliminates the need to dispose of records in the first place, and if disposable is not enabled by law, automatically saving the records would be the default.
  • Congress statutorily requiring the White House Office of Administration to monitor and report on the Executive Office of the President’s compliance with the PRA.
  • Congress requiring the Archivist of the United States to monitor, review and report on EOP compliance with the PRA, and for the Archivist to review and sign off on White House record-keeping guidelines and practices.

The PRA was most recently amended in 2014. Those amendments established a process for the publication of presidential records after the president leaves office, made it harder for former executives to block publication of their records by citing executive privilege; forbade executive branch officials from conducting government business over personal email, thereby evading the FOIA; and modernized records management by expanding and clarifying the definition of electronic records.

COVID-19 Transparency Resource

The Project on Government Oversight has launched a website dedicated to tracking COVID-19 transparency resources. As of writing this, the page has nearly two dozen Congressional Research Service reports relevant to the crisis, as well as Government Accountability Office reports, federal pandemic response plans, and a variety of other useful resources. 

Salvadoran Court Needs U.S. Documents on El Mozote Massacre

Salvadoran Judge Jorge Guzmán Urquilla, who is overseeing the trial of the perpetrators of the 1981 El Mozote massacre is requesting access to U.S. government records on the crime (the massacre took place during the country’s 12-year civil war and ranks, with the deaths of over a thousand citizens, as the worst in modern Latin American history). The trial began in 2016, but Judge Urquilla recently requested help from Secretary of State Mike Pompeo, writing that US records “could be very valuable to us.” So far, the State Department has not responded.

The Archive’s Kate Doyle has used FOIA to obtain hundreds of Clinton-era records on the Salvadoran civil war, but knows there are more documents that need to be published. “There is no doubt that we would find incredibly strong and relevant information related to this case if the U.S. opened up its archives,” Doyle told the Washington Post. “The CIA and defense attaches had a direct line to senior Salvadoran military structures, with direct access to army commanders on the field. They had detailed information about what the regime was doing in its counterinsurgency campaign.”

False Warnings of Soviet Missile Attacks Put U.S. Forces on Alert

During the Cold War, false alarms of missile attacks were closely held matters although news of them inevitably leaked. The National Security Archive recently revisited the false alerts of the Jimmy Carter administration when on four occasions warning screens showed hundreds and hundreds of Soviet ballistic missiles heading toward North America.

In a reposting and update of a 2012 collection, the Archive includes recently declassified documents with new details about the 1979 and 1980 false warnings. One document, notes by William Odom, the military assistant to National Security Advisor Zbigniew Brzezinski, raises questions as to whether Odom called the latter in the middle of the night about the possibility that Soviet ICBMs were incoming. Such a phone call was a major element of the 2012 posting, but Odom’s notes on the 3 June 1980 false alarm make the picture murkier. The only certainty is when Odom spoke to Brzezinski that day, he assured him he had kept the White House “in the loop” during the period of the false alarm.

The false alarms of 1979 and 1980 instigated major efforts to ensure that computers did not generate mistaken information that could trigger a nuclear war. In today’s world where more medium size to great powers, such as North Korea and China, either have ICBMs or are testing them the potential for false alarms is growing.

Sunshine Week Special: NARA’s Oldest FOIA Request- At 26 Years Old- Is About to Get Kicked Off Its Parent’s Insurance

March 16, 2020
Update: NARA’s General Counsel and Chief FOIA Officer, Gary Stern, reached out to the Archive concerning our blog post on his agency’s 26-year-old FOIA request; the data used for the blog was found in NARA’s FY2019 FOIA report. Stern points out that the FOIA request in question, along with several others, were processed after the completion of the FY2019 report. Stern’s full comments are as follows: 
“The National Archives and Records Administration (NARA) understands the National Security Archive’s concern about NARA’s oldest FOIA cases.The good news is that NARA was able to close the 1994 case in November 2019 (based on a required third agency declassification review). We’ve since closed seven of our current ten oldest cases, which now means our oldest FOIA case is from 2004. While 16 years is still too long for a requester to have to wait for a complete response, NARA is doing as much as we can with our limited resources to respond to all FOIA requesters.” 
We appreciate both the update and that NARA continues to engage with requesters on their FOIA concerns! 

By Claire Harvey

The National Archives and Records Administration oldest pending FOIA request is about to turn 26 years old, according to NARA’s 2019 Fiscal Year Annual FOIA Report. To put this delay in perspective, the 1994 FOIA request is so old that it is nearing one of the last benchmarks of young adulthood: being forced off your parent’s health insurance plan. The report was released in anticipation of Sunshine Week, the annual nationwide celebration of open access to public information, which begins today, March 16th.  Check out the Archive’s 2020 audit, which found that over the past four years nearly three quarters of the White House decisions have contradicted the President’s claim that he is “the most transparent President in history.”

NARA’s 1994 FOIA request indicates that the agency’s chronic processing delays have worsened since the Archive’s 2019 Sunshine Week audit, which found that in FY2018, the oldest report was from 1993, or 25 years old. The FY2019 FOIA report also shows that NARA’s oldest administrative appeals are aging too; an October 2012 appeal has been the agency’s oldest for five years.

Image: NARA FY2019 FOIA Report

The Nation Security Archive’s 2019 Sunshine Week Audit found a correlation between agencies with oldest FOIA requests and those with the largest FOIA backlogs. After parsing through annual FOIA Reports, the survey found that delays are frequently the result of “referral black holes.” Despite being costly, redundant, and inefficient, agencies regularly refer FOIA requests to any agency with possible equities, resulting in often decades-long delays and the re-review of the same document multiple times.

Agencies are required to send their annual FOIA reports to the Department of Justice’s Office of Information Policy. As of writing this, 11 out of 15 departments and 83 out of 100 agencies have posted their FY2019 Annual Reports. While NARA has published its FY2019 report on its website, OIP has yet to add it to their own site. 17 other agencies that have published their FY2019 reports online have not been added to OIP’s site. The OIP reports page- particularly for historic reports-is plagued by broken links, such as the DOD’s FY2019 and FY2018 annual FOIA reports. This makes it impossible for the public to access previous FOIA statistics and chart agencies’ progress.

The National Security Archive has conducted 19 audits since 2002. Modeled after the California Sunshine Survey and subsequent state “FOI Audits,” the Archive’s FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Read our newest audit here. Check out our previous audits below:

 

 

 

Judge Calls on Congress to Fix PRA Loopholes, FOIA Discredits Eric Trump’s Claim that Secret Service Stays at Trump Properties for Free, and More: FRINFORMSUM 2/21/2020

February 21, 2020

President Donald Trump meets with Ukrainian President Volodymyr Zelensky at the InterContinental Barclay New York hotel on Wednesday, Sept. 25, 2019. AP Photo/Evan Vucci

Court Rejects Archive Lawsuit over Trump’s Abuse of Records Law

U.S. District Judge Amy Berman Jackson made clear that her ruling in the Archive’s lawsuit seeking to compel the White House to preserve records “should not be interpreted to endorse” the White House’s records-keeping practices, “nor does it include any finding that the Executive Office is in compliance with its obligations.”

Judge Jackson dismissed the suit, brought by the Citizens for Responsibility and Ethics in Washington (CREW), together with the National Security Archive and the Society for Historians of American Foreign Relations, on the grounds that Circuit precedent finds that courts lack the authority to review the chief executive’s “day-to-day compliance” with the Presidential Records Act. Plaintiffs filed the suit in May 2019 on the heels of news reports that the Trump administration excluded note takers in multiple meetings with foreign heads of state.

As stated in her ruling, “the PRA gives neither the Archivist [of the United States] nor the Congress the authority to veto the President’s decision” to destroy records – or in this instance, fail to create the records in the first place. Jackson also makes clear that Congress must step in to address this outdated loophole, noting “it is Congress that has the power to revisit its decision to accord the executive such unfettered control or to clarify its intentions”. Read the ruling in its entirety here.

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FOIA Discredits Eric Trump’s Claim that Secret Service Stays at Trump Properties for Free

New documents obtained under the FOIA by the Washington Post help show how much money the Trump organization is charging taxpayers for the Secret Service to protect the president when he visits his properties – up to $650 per room per night. The organization has previously said it only charges the Secret Service minimal fees (Eric Trump said, “If my father travels, they stay at our properties for free – meaning, like, cost for housekeeping”), but the FOIA releases discredit that argument. The Post obtained 103 payments from 2017 and 2018 showing the Trump Organization charged the agency between $650 to $396; the Service was once charged $17,000 a month to use a three-bedroom cottage at Trump’s Bedminster Golf Club in New Jersey. The 103 payments total $471,000, but the Post notes that it’s impossible to tell the true extent of what the Secret Service has spent at Trump properties, because the agency “has not listed them in public databases of federal spending, as is usually required for payments over $10,000.”

The CX-52 provided by Brazil to Operation Condor members in 1976, is the type of ciphering machine Crypto AG submitted to NSA for testing.

Crypto AG – from Cyber to Condor

The Washington Post’s bombshell exposé on Crypto AG – “The intelligence coup of the century” – is relevant to both the Archive’s Southern Cone documentation and Cyber Vault projects.

Southern Cone

As the Post reports, the U.S. intelligence community actively monitored for decades the diplomatic and military communications of, among others, numerous Latin American nations through encryption machines supplied by a Swiss company that was secretly owned by the CIA and the German intelligence agency, BND. Declassified records recently posted and analyzed by the Archive’s Peter Kornbluh and Carlos Osorio show that, among those secretly surveilled countries, were military regimes of the Operation Condor nations—led by Chile, Argentina and Uruguay—as they conducted regional and international acts of repression and terrorism against leading opposition figures.

At the inaugural Condor meeting, hosted by the Pinochet regime in Santiago, Chile, in November 1975, military officials from five military dictatorships signed an accord which stated that member nations would employ a “Cryptology System that will be available to member countries within the next 30 days, with the understanding that it may be vulnerable; it will be replaced in the future with cryptographic machines to be selected by common agreement.” After the second Condor meeting in June 1976, the CIA reported, “Brazil agreed to provide gear for ‘Condortel’—the group’s communications network.” That “gear,” the documents reveal, came from Crypto AG.

The espionage operations through Crypto AG conceivably provided the U.S. intelligence community with a far more detailed knowledge of Condor operations than previously acknowledged. Indeed, the U.S. intelligence records generated by these espionage operations could be “a historical game changer,” according to Carlos Osorio, who directs the Southern Cone Documentation Project at the National Security Archive. “If declassified,” he noted, “this vast trove of communications intercepts could significantly advance the history of Operation Condor as well as contemporary history of the entire region.”

Cyber Vault

Crypto AG was founded in the 1930s by Swedish inventor Boris Hagelin, who already had a longstanding “gentlemen’s understanding” with the National Security Agency’s cryptographer and agency liaison, William Friedman. The Archive’s Cyber Vault published a curated selection of documents primarily from William Friedman’s collection which shed light on the years before Hagelin’s retirement and the level of cooperation between the two men.

Through the Freedom of Information Act, the National Security Archive is seeking the full declassification of the CIA’s secret case study on the “Minerva project” as well as the supporting documentation on the CIA/NSA ties to the Hagelin company.

Frank Anderson, 1942 – 2020

Frank Anderson, the CIA officer who served as head of the agency’s Afghanistan task force in the 1980s – supplying the mujahedeen with weapons to fight the Soviets – and oversaw a high-level informant – Ali Hassan Salameh –  within the Palestine Liberation Organization, has died.

Anderson was one of dozens of high-level officials interviewed during the National Security Archive’s and CNN’s 24-part, Peabody-award-winning documentary series, Cold War. His interview can be found here. (The rest of the interviews can be read here.)

Anderson retired from the agency after former director James Woolsey ordered his reassignment. Woolsey was furious that Anderson had given Milton Bearden (who was disgraced spy Aldrich Ames’ supervisor) an agency award for his outstanding work on Afghanistan – just one day after Woolsey had reprimanded Bearden for his conduct as Ames’ supervisor, and ordered Anderson’s reassignment. Anderson retired instead. He went on to serve as the president of the Middle East Policy Council, and was an outspoken critic of the agency’s torture program. As he wrote in the Miami Herald, “Mistreating detainees, even detainees who clearly deserve mistreatment, is ineffective, counterproductive, illegal and morally repugnant.”

Border Agency Gets OK to Hide Previously Public Info from FOIA, and Much More: FRINFORMSUM 2/6/2020

February 6, 2020

A Customs and Border Protection vehicle patrols the border fence in El Paso, Texas. (Jinitzail Hernández / CQ Roll Call via AP Images)

CBP Now A “Security Agency” With Broad FOIA Carve-Outs

The Trump administration has designated Customs and Border Protection (CBP) a “security agency”, a move that puts CBP in the same category as the Secret Service and the FBI, among others. And the new designation grants CBP increased leeway in withholding information from the public.

A January 31, 2020 memo from CBP Acting Commissioner Mark Morgan, which was obtained by The Nation’s Ken Klippenstein, states, “I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CGP employee data.”

An anonymous CBP contractor provided the memo to Klippenstein, noting “Designating all of CBP a Security Agency exempt from OPM’s disclosure policy is simply absurd. There’s no need for the average CBP employee to have their name and position redacted from FOIA requests. This is another example of the current administration making it even more difficult to obtain pertinent information via official channels and claiming it’s related to security in some way.”

The motivation for the policy shift is equally irrational; the agency took issue with a Twitter account that was posting employee salary information – information that had long been publicly available through both Office of Personnel Management salary databases and the internet.

Another interesting tidbit from the article: Immigration and Customs Enforcement was assigned “at least one” detailee from the National Security Agency, begging the question why ICE needs input from the spy agency in the first place?

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New OIP Director Named

The Department of Justice’s Office of Information Policy, which is in charge of “encouraging” government-wide FOIA compliance – an important step short of actually enforcing the law, officially has a new director – Bobak Talebian. Talebian has been the acting director since Melanie Pustay retired in October 2019.

Under Pustay, OIP regularly published misleading FOIA statistics and provided an incomplete view of FOIA processing to both Congress and the public. In a prime example, the office’s annual summary of agencies’ FOIA reports regularly touted FOIA release rates of well over 90 percent across the government, a laughable claim. OIP arrived at this figure by excluding FOIA requests agencies denied by: overcharging fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits);  issuing a “no records” response (very frequently the result of inadequate searches); and requests deemed “improper for other reasons” (which ostensibly includes the increasingly-common “can neither confirm nor deny” Glomar exemption). A more accurate release rate calculated by the National Security Archive and others hovers between 50 and 60 percent.

Over the years, Pustay doggedly refused to acknowledge FOIA’s systemic problems, agencies’ hostility to complying with FOIA, or her office’s unwillingness to take agencies to task for not following the law. In 2015, Pustay was accused by the former chair of the House Committee on Government Oversight and Reform, Rep. Jason Chaffetz (R-Utah), of living in “la-la-land” for testifying that she believed FOIA was being properly implemented, and Senator Chuck Grassley told her during a 2018 hearing that her explanations for why the “release to one, release to all policy” had yet to be finalized (it still hasn’t) didn’t pass the “common-sense test.”

Talebian could, if he chooses, takes steps to restore the requester community’s faith in the office. One way would be to publish a more accurate assessment of FOIA for this year’s OIP summary of agency FOIA reports. Another promising sign would be asking the Attorney General to direct all DOJ litigating divisions to undertake a “litigation review” of pending and future FOIA lawsuits (the last time this was done was 1993). These changes would help allay fears that OIP will continue to write agencies a blank check for underperforming on FOIA.

Hurricane Dorian’s SharpieGate Map: “Yes, that was doctored”

BuzzFeed News’ Zahra Hirji and Jason Leopold won FOIA-released documents from the National Oceanic and Atmospheric Administration showing the internal fallout within the NOAA and the National Weather Service after President Trump falsely claimed in September 2019 that Alabama was one of the southern states “most likely to be hit” by Hurricane Dorian. Trump promoted a doctored map with a sharpie bubble drawn on top of the official prediction that showed the storm moving towards Alabama. A forecaster attempted to correct the error, and the NOAA inexplicably took the President’s side over its own climate scientist in an anonymous memo. The released emails show that scientists, “both inside and outside the government, were horrified”, and were concerned about the impact the event would have on morale and the possibility of retaliation against scientists who contradict the president.

Starting to Crack a Hard Target: U.S. Intelligence Efforts Against the Soviet Missile Program through 1957

In the eyes of U.S. intelligence and the military services, the greatest threat to American national security during the early Cold War was the emerging Soviet missile program with its ability to deliver nuclear weapons to targets across the United States. Before the era of satellite surveillance, the U.S. scrambled to develop ever more effective intelligence-gathering methods, notably the U-2 spy plane, spurred on by having missed practically every important Soviet breakthrough of the time – including the first intercontinental ballistic missile tests and the world-changing Sputnik launches.

Early U.S. monitoring of Soviet missile activities is an important part of the history of nuclear weapons and even has parallels to the challenges faced today in tracking the programs of adversary states such as North Korea and Iran. Unfortunately, most of the record, even six or seven decades later, remains highly classified.

However, working with declassified materials from CIA and other sources, James E. David, curator of national security space programs at the Smithsonian National Air & Space Museum, has pieced together a fascinating part of the story of the U.S. missile-tracking effort up to 1957. David’s last E-Book for the Archive described American spying on Communist military parades during the Cold War. Read it here.

Work of 4th Soviet Spy at Los Alamos Revealed

Documents recently declassified by Los Alamos laboratory shed new light on a Soviet spy, code named Godsend, who worked in the atomic bomb program. Historians revealed the existence of Godsend, whose real name was Oscar Seborer and is the fourth known Soviet in the US’s Manhattan Project, last year – but the extent of his role was unknown until the Los Alamos release. The new release shows Seborer “had an intimate understanding of the bomb’s inner workings. His knowledge most likely surpassed that of the three previously known Soviet spies at Los Alamos, and played a crucial role in Moscow’s ability to quickly replicate the complex device.” Specifically, Seborer was employed by the X-5 unit and worked on the firing circuits for the bomb’s 32 detonators.

ICYMI: Why You May Never Learn the Truth About ICE

Check out Dr. Matthew Connelly’s New York Times op-ed, “Why You May Never Learn the Truth About ICE”, if you haven’t yet. The article begins by examining some of the National Archives and Records Administrations most notable recent flubs – including doctoring a photo of the 2017 Women’s March on Washington, and tentatively approving a records retention schedule that would have allowed ICE to designate as temporary – and then destroy – “documents detailing the sexual abuse and death of undocumented immigrants.” Public outcry compelled the Archivist of the United States, David Ferriero, to tell the agency to revise its schedule, but the new one, which was formally approved, still allows ICE to destroy records concerning “detainees’ complaints about civil rights violations and shoddy medical care.”

NARA is certainly understaffed and underfunded, and Dr. Connelly points out that, adjusted for inflation, Congress has cut NARA’s budget every year for the last three years. But resources are not the only roadblock; the article raises existential questions about what archival efforts should look like in the digital age, and how do archives responsibly manage the transition? For example, what will happen to historic paper records – the CIA alone has over 150 million pages of them – when NARA stops accepting paper records in two years? And what does the future of the presidential library system look like now that NARA will no longer maintain it? The questions are of the utmost importance, but the answers are worryingly vague.

 

ICE, Initially Citing No FOIA Exemption, Wrongly Denied Immigration Lawyers Access to their Clients’ A-Files: FRINFORMSUM 1/23/2020

January 24, 2020

Smith v. ICE

ICE Denied “Fugitive alien FOIA Requesters Access to the FOIA Process”

Judge William J. Martinez of the US District Court for the District of Colorado has ruled that Immigration and Customs Enforcement (ICE) violated FOIA by refusing immigration lawyers’ access to their clients’ Alien Files (A-Files). The order traces a convoluted, three-year case (Jennifer M. Smith v. U.S. Immigration and Customs Enforcement) that began in 2013 when immigration lawyer Jennifer Smith filed a FOIA request with U.S. Citizen and Immigration Services for her client’s A-File. The FOIA was referred to ICE, which responded in September 2015 stating, without citing a specific FOIA exemption, that “It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.”

Smith filed a FOIA lawsuit in August 2016, challenging the withholding and arguing that ICE’s position was a “pattern or practice” violation of FOIA, which requires agencies to cite one of nine specific exemptions as a justification for withholding information. ICE provided the requested documents shortly after the suit was filed, but Smith, working with the ACLU, continued the litigation, arguing that the suit “must prevent future violations of FOIA by ordering ICE to stop invoking its ‘fugitive’ practice entirely.”

In July 2017, ICE disclosed its new Standard Operating Policy (SOP) for responding to FOIA requests for A-Files, stating that “ICE FOIA may categorically withhold the fugitive’s law enforcement records or information pursuant to FOIA Exemption (b)(7)(A)”, which permits withholding records or information compiled for law enforcement purposes. ICE, which uses FOIAXpress as its FOIA processing software, calculated that it had sent this “Fugitive Practice” denial 333 times between July 21, 2017 and April 4, 2019.

Judge Martinez took issue with ICE’s defense of the SOP “as a proper categorical application of Exemption 7(A)”, ruling that “A proper categorical exemption applies at the document level, and not at the broader ‘file’ or ‘container’ level, unless the container only contains documents to which a proper categorical exemption applies.” Martinez went on to note that, “there is no genuine dispute of fact that ICE is impermissibly attempting to apply Exemption 7(A) at the container level.” The judge concludes by ruling, “Smith has thus carried her burden to show that there is no set of circumstances under which the SOP is lawful under FOIA.”

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OMB FOIA Release of Ukraine Documents

The Office of Management and Budget has released 129-pages of documents in response to a FOIA request concerning the office’s efforts to carry out President Trump’s order to freeze military aid to Ukraine. Two oversight organizations, American Oversight and the Center for Public Integrity, obtained the documents at the same time Senate Republicans blocked Democrat’s efforts to subpoena new evidence – including some of the information that OMB released through FOIA – in President Trump’s impeachment trial. The documents show growing tension between the Defense Department and the White House as the freeze dragged on, “and the confusion and surprise when members of Congress, including some prominent Republicans, learned that the military assistance to Ukraine had been held up.”

The released documents were heavily redacted pursuant to FOIA’s Exemption 5, often called the “withhold it because you want to” exemption. The Exemption protects agencies’ “deliberative process” privileges, a wide carve-out that allows agencies to withhold “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public.

“Lawyer” Lawsuits

President Trump’s personal attorney, Jay Sekulow, had an embarrassing flub on January 21 during the impeachment trial. Sekulow apparently misheard Rep. Val Demings (D-Fla.), one of the House impeachment managers, when she said, “The president’s lawyers may suggest that the House should have sought — that this House should have sought these materials in court, or awaited further lawsuits under the Freedom of Information Act, a.k.a. FOIA lawsuits,” going on to say that third-party FOIA lawsuits cannot be a “credible alternative to congressional oversight.”

What Sekulow heard was another matter, mistaking the phrase “FOIA lawsuits” for “lawyer lawsuits,” despite the context. He said, “And by the way — lawyer lawsuits? Lawyer lawsuits? We’re talking about the impeachment of a president of the United States, duly elected, and the members — the managers are complaining about lawyer lawsuits? The Constitution allows lawyer lawsuits. It’s disrespecting the Constitution of the United States to even say that in this chamber — lawyer lawsuits.”

The White House stood by Sekulow’s mistake, and its legislative affairs director, Eric Ueland, told reporters, “When you read the transcript it says ‘lawyer lawsuit.’” It is unclear to what transcript Ueland is referring.

Government Denies Expedited Processing of Soleimani Killing FOIA

Reporter Isaac Arnsdorf tweeted a picture of the Justice Department’s rationale for denying expedited processing of his time-sensitive FOIA request. Arnsdorf requested expedited processing for his FOIA request to the Office of Legal Counsel for “final legal advice in [OLC] since June 20, 2019, on killing Qasem Soleimani.” Despite the fact the administration has yet to provide an official legal justification for the strike that killed the Iranian general in Baghdad, a move that led to a tense-standoff between the United States and Iran that resulted in Iran mistakenly shooting down a Ukrainian passenger jet and killing all aboard, the DOJ’s public affairs director Kerri Kupec denied the request. The DOJ argued that, in its view, the killing was not a matter “in which there exist possible questions about the government’s integrity that affect public confidence.”

USCYBERCOM FOIA Release Sheds Light on Operation to Hack ISIS

This week the National Security Archive’s Cyber Vault released six new USCYBERCOM documents that shed light on the campaign to counter ISIS in cyberspace. The documents, which were obtained through FOIA, include a discussion of assessment frameworks to the 120-day assessment of Operation GLOWING SYMPHONY, reveal the unprecedented complexity of the operation, resulting challenges in coordination and deconfliction, and assessments of effectiveness.

CyberScoop’s Shannon Vavra writes that while the documents show the operation was largely successful, they also show “there were significant shortcomings, including operators having trouble collecting data, interagency deconfliction issues, difficulty vetting targets, and, in at least one case, a close call with the operation being discovered by the adversary.” And the Washington Post’s Joseph Marks’ says the documents “paint the most vivid portrait to date of the complex challenges facing U.S. military hackers as they develop rules for a new domain of warfare.”

Read the documents and the rest of the media coverage at the National Security Archive.

The Joint Chiefs of Staff during the Moorer years (copy from Naval History and Heritage Command).

Nuclear War Planning and the Challenge of Civilian Oversight

In an unusual episode in the early 1970s, the Joint Chiefs Staff tried to keep Defense Secretary Melvin Laird in the dark about an aspect of secret nuclear targeting policy involving China, according to a recently declassified archival document requested by the National Security Archive. Laird only discovered the attempt by accident.

On 24 February 1972, the Joint Chiefs mistakenly copied Laird on a message concerning ongoing efforts by military planners to develop a “Communist Chinese Nuclear Package” for the Single Integrated Operational Plan, the Pentagon’s nuclear war plan. The message not surprisingly “displeased” Laird for a number of reasons. For one, it bypassed a civilian-directed target planning review that he had already initiated. For another, its timing coincided with President Richard Nixon’s first visit to China, which was underway that same week.

The incident sheds some fascinating light on the conduct of nuclear planning during the Nixon administration and is also an interesting reflection on the broader military-civilian relationship in the area of sensitive nuclear matters. Read the document in our Nuclear Vault.

Iran-U.S. Relations – Assessing the Future by Reviewing the Past

January 16, 2020

Foreign Minister Mohammad Javad Zarif and Secretary of State John Kerry shake hands after signing an interim deal on Iran’s nuclear program, Geneva, November 24, 2013 (photo from theiranproject.com)

National Security Archive’s New Declassified Documents Publication Offers Historical Context for Current Crisis

As 2020 gets underway, tensions between the United States and the Islamic Republic of Iran have once again been dominating the headlines. A series of violent flareups – most recently the U.S. killing of Iranian General Qasem Soleimani and Iran’s retaliation against two Iraqi military bases housing American forces – have renewed fears of an escalation to direct armed conflict.  The worry is that such a conflict will engulf the Middle East and create both global political instability, through increased terrorist attacks, and economic crisis in the event of a blockade of the Strait of Hormuz or strikes against oil facilities in the Persian Gulf.

A look back at the 40 years since the Iranian revolution of 1978-1979 – made possible by a new major documentary publication by the National Security Archive – offers some useful historical context that helps to explain the depths of American-Iranian official antagonism but also may provide some hope for extricating the two sides from what is in many ways just the latest confrontation between the two governments.

The Archive’s new publication, U.S. Policy toward Iran: From the Revolution to the Nuclear Accord, 1978-2015, is the most recent in the subscription series The Digital National Security Archive, published by the academic publisher ProQuest.  It consists of 1,760 documents and almost 14,000 pages of materials, most of them made available through the Freedom of Information Act (FOIA) or through research at various archives.

Sultan Qaboos.

A selection of highlights from the collection appeared in a recent Archive e-book that can be read here. They include Top Secret memos to presidents, assessments of the Iran-Iraq War and U.S. awareness of Iraq’s use of chemical weapons, records of U.S. and Iranian attempts to communicate including a direct message from Bill Clinton to Mohammad Khatami, Bush 43 records on Iran’s role in the Afghan Conference, queries from Donald Rumsfeld about Iran’s strategy in Iraq, and materials relating to negotiating the JCPOA.

What do the documents in this new collection, and the broad history of U.S.-Iran relations, show?  The following are some examples based on the newly published materials.

Sultan Qaboos bin Said Al-Said of Oman, here in conversation with President George H.W. Bush, played a key role over many years as an intermediary between the United States and Iran. The Sultan died in January 2020.

On the surface the documentation forms a portrait of seemingly unrelieved hostility, beginning with the revolution itself, which exposed the depths of Iranian animosity not only toward Shah Mohammad Reza Pahlavi, whose rein had followed a steady arc toward oppression and dictatorship as the years went on, but against the United States for its support of the Shah (starting with his restoration to the throne in 1953 thanks to a coup fomented with American and British help).

A period of tensions through most of 1979 turned ugly in November when Iranian students and others overran the U.S. Embassy and took dozens of American officials and military personnel hostage.  That 444-day crisis has been at the heart of the American narrative about the Islamic Republic ever since and according to recent media reports was one of the motivations for President Donald Trump’s decision to respond sharply to demonstrations in front of the U.S. Embassy in Baghdad in late December 2019, out of fear it could lead to a similar crisis.

Portions of Zbigniew Brzezinski’s December 21, 1979 memo to President Carter, including Carter’s handwritten notes.

In hopes of ending the earlier drama, President Jimmy Carter mounted a rescue attempt in April 1980 that instead culminated in fiery disaster when two American aircraft collided in the Iranian desert before the operation could fully get underway.  Ever since, that failure has loomed over the thinking of military strategists who have been tasked by different presidents with coming up with options for military operations against Iran.  In addition to the stark logistical challenges, presidential aides have typically pointed to the unknowns and risks in terms of Iranian retaliation in advising the White House to steer clear of the temptation to use brute force against Tehran.  Like his predecessors, President Trump by most accounts – and against the expectations of numerous observers – seems to have accepted that line of argument over the past year as he has opted more than once not to strike directly at Iranian targets, at least for now.

For their part, Iran’s leaders have developed a narrative concerning U.S. bad behavior.  That image, formed over the years prior to the revolution, hardened significantly in the 1980s when Tehran was at war with Saddam Hussein’s Iraq.  As the documentary record shows, Iran took great umbrage at most of the world’s lack of outrage following Baghdad’s attack in September 1980, at Western and Russian supplies of military materiel to Iraq, and at the perceived lack of indignation at Saddam Hussein’s use of chemical weapons (with targeting assistance from the U.S.).  For Washington, concerns about the threat Iran posed to Western interests significantly outweighed that presented by Iraq.  This became the justification for repeatedly and progressively siding with Saddam Hussein, a pattern that has been forgotten or obscured by Iraq’s subsequent aggressions and U.S. military operations against Baghdad in the early 1990s and starting in 2003.

Two sets of events from the Iran-Iraq War of the 1980s resonate particularly strongly in today’s environment. The first started in Summer 1987 when the U.S. Navy began to escort Kuwaiti oil tankers through the Strait of Hormuz as a way to ensure the safe transit of petroleum to the West.  That September, the U.S. discovered an Iranian ship laying mines in the Gulf, which led to a brief firefight and the destruction of an Iranian offshore oil platform.  In April 1988, the U.S. determined Iran was at it again.  This time the Navy responded by striking two more oil platforms which the Iranians were using as operational bases. Iranian small vessels retaliated against overwhelmingly larger American forces, which in turn responded by sinking several Iranian ships.

The mining incidents and missile strikes against international shipping in the Gulf and Saudi oil facilities in Spring and Fall 2019, which the U.S. charged Iran was responsible for, have recalled those earlier episodes, ramping up fears of a dangerous direct conflict.

This “snowflake” memo from SecDef Donald Rumsfeld, written several weeks after George W. Bush declared “mission accomplished” in Iraq, anticipates the kinds of actions by Iran that would eventually be put forward as a key rationale for killing Qasem Soleimani.

The other event from the Iran-Iraq War with an almost eerie parallel to today was the July 1988 shooting down of a civilian Iranian airliner by the U.S. Navy cruiser USS Vincennes in the Gulf.  The U.S. has always maintained it was an accident and subsequently gave the ship’s commander an end-of-tour award.  The Islamic Republic immediately concluded the attack was deliberate and has held it out ever since as proof of American ruthlessness.  When a Ukrainian civilian airliner went down over Iran in early January 2020, the regime was eventually forced to admit that its own missiles had shot the plane down.  A substantial number of Iranian students were among the victims which prompted bitter protests in the country.  In 1988, the Iran Air tragedy ironically helped persuade Tehran’s leadership that it was time to end the war with Iraq, in part because of the conclusion that they were also fighting the United States.  It remains to be seen whether the latest calamity will also move the Islamic Republic to pull back in some way, perhaps through some combination of a sense of overwhelming odds and the ramifications of continuing public distress.

Throughout the four decades since the Iranian revolution, both the U.S. and Iran have routinely exchanged charges against each other.  Washington has pointed to events such as the 1983 Marine barracks bombing in Beirut, kidnappings in Lebanon, the 1996 Khobar Towers bombing in Saudi Arabia, violent attacks from Berlin to Buenos Aires, and general support for proxies including Hezbollah and Hamas as signs of Tehran’s bad intentions and support for international terror.  The Islamic Republic in turn accuses Washington of pursuing its own brand of terror including imposing hegemony on the region, fomenting regime change in Iran, and supporting actors hostile to Tehran, from Israel to the MEK.

Yet, as the documents show, the past 40 years have also featured regular attempts beneath the surface by both sides to break through the political permafrost when it has suited them.  In the months after the Shah’s 1979 flight into exile and Ayatollah Khomeini’s return to Tehran, the Carter administration tried hard to build ties to the new centers of power in Iran, albeit unsuccessfully.  During the ensuing hostage saga, Washington worked with many intermediaries to try to resolve the crisis. Just a few years later, facing his own hostage predicament, President Ronald Reagan approved the covert trade of arms for Americans being held by Hezbollah in Lebanon. Observers dismissed the Iran-Contra affair as an aberration but underlying it was a much broader sense (as revealed in internal U.S. files) within the U.S. government of the desirability of finding a way to restore closer ties with Iran, despite the mutual hostility. Reagan’s successor, President George H.W. Bush, also tried to work with Tehran.

A new phase of the relationship (if it can be called that) opened with the election of Mohammad Khatami as president of Iran in 1997.  President Bill Clinton tried repeatedly for a breakthrough, but a combination of domestic and international political factors hampered both sides’ attempts. Iran’s interest in improving relations showed through once again in the period after 9/11 when Tehran was one of the first world capitals to express public condolences to the United States.  More substantively, Iranian and American negotiators in Afghanistan worked cooperatively as part of the international process of putting together a new Afghan constitution.  Those positive steps were nullified at least temporarily by President George W. Bush’s branding of Iran as part of an “Axis of Evil” in January 2002.  Still, American and Iranian officials found common ground in both Iraq and Afghanistan as they attempted to establish regional stability and eradicate Sunni-based terrorism. Recent accounts by then-Ambassador Ryan Crocker and others indicate that Qasem Soleimani himself was at times a willing partner in that process.

The most high-profile bilateral attempt to reach accord on matters of major mutual interest occurred during the presidencies of Barack Obama and Hassan Rouhani.  The 2015 Joint Comprehensive Plan of Action focusing on Iran’s nuclear program had many critics but was a landmark agreement that showed what could be achieved even by two such unfriendly parties. As so often happened over the course of the relationship, a combination of events on the ground, domestic political considerations, and other factors got in the way of a more permanent accomplishment.

Yet even Donald Trump, despite his harsh rhetoric and actions such as tearing up the JCPOA and imposing extensive sanctions, has stated openly he would be willing sit down and talk with his Iranian counterparts – without preconditions.  Public statements by some of his advisers, notably Secretary of State Mike Pompeo’s May 2018 enumeration of a dozen demands for “major changes” by Iran, directly contradict the president, but the evidence to date suggests that at least until the killing of Soleimani Trump has been far less enamored of taking the kinds of military steps his hardline advisers have been promoting.

Even in the case of the Soleimani strike, Trump has followed a pattern set by his predecessors – establishing a red line at the killing of Americans. In early 1985, for example, Ronald Reagan – against the advice of his aides – insisted on hitting Iranian targets directly if any American hostages were killed.  Bill Clinton ordered large-scale plans for attacking Iran if it could be proven Iran’s leaders was behind the Khobar Towers bombing that killed 18 American servicemen.  (Clinton backed off after Khatami’s election because of the prospects for a rapprochement – one of many fascinating subplots outlined in the declassified record.)  Where Trump has taken a different approach is in claiming credit for Soleimani’s death.  In the past, the targeting of each other’s personnel or facilities has more typically been done behind the fig leaf of official deniability.

“Like that.” Preoccupied with American hostages in Lebanon, President Ronald Reagan was ready to strike Iranian targets directly if any harm were to come to the captives. This was several months before embarking on the widely criticized arms-for-hostages deals with Iran.

Where are events headed?

Based on a reading of the available record, it is clear that U.S.-Iran relations have been far more complex than they appear on the surface.  Despite the trademark “Death to America” chants and similarly acrimonious rhetoric from various American administrations and Congress, each side at one point or another has found it in its interests to seek common ground with the other.  Even when tensions have skyrocketed and war has seemed imminent, both governments have managed to pull back, sharing another common feature – a very rational desire not to become embroiled in a bloody direct conflict that could easily dwarf anything either side has experienced for many years.

On a less optimistic note, the record also shows that despite these intentions on the part of the leaders of both countries, a variety of factors continue to pose potentially serious hazards for the region.  Among these are a substantial degree of ignorance about the other side (its history, culture, politics, and decision-making) and a dearth of avenues for direct contact.  Both are a result of the absence of formal diplomatic ties, which the U.S. has found a way to justify with virtually all of even its most reviled adversaries in the past, but not with the Islamic Republic.  Another factor is the impact of domestic politics and the sharpening of political divides, particularly in the United States. Time and again, hardliners in both countries’ security apparatus and parliaments, for example, have torpedoed efforts to work toward a lessening of tensions.

A third, somewhat related, dynamic that has come into play is the preoccupation with showing strength over weakness. The historical record includes several examples of this from Carter forward to Trump.  One of the most notable was the submission of a “road map” for better relations by Iran in the wake of the U.S. invasion of Iraq in 2003, which the American side dismissed at least in part because it was seen as proof that Iran was now in a weakened position and did not present an obstacle to American plans.  Other issues came into play including U.S. uncertainty over the authenticity of the document, sent via the Swiss ambassador (who remains the principal go-between with Iran in the current crisis), but the instance is one of several that raise fascinating questions about what might have been, especially in the light of how Iran’s position has strengthened by orders of magnitude since that time.

Finally, events on the ground make up a very concrete, additional source of continuing mutual antagonism, which may yet contribute, along with the other circumstances above, to an open explosion in the region.  Mistrust based on all these factors has been a persistent feature in both governments for many years, but so have a certain underlying rationality and sense of self-interest, despite perceptions on both sides.  The unpredictable interplay of these conflicting elements is a core reason why most Iran experts find it so difficult to foretell the future of the U.S.-Iran relationship.